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Reape v. Mabus

United States District Court, W.D. North Carolina, Charlotte Division

March 29, 2017

HUBERT REAPE, Plaintiff,
RAY MABUS, Secretary of the Navy, Defendant.


          Robert J. Conrad, Jr., United States District Judge

         THIS MATTER comes before the Court on Defendant Secretary of the Navy[1] Ray Maybus' (“Defendant”) Motion for Summary Judgment, (Doc. No. 9); Plaintiff Hubert Reape's (“Plaintiff”) Motion for Summary Judgment, (Doc. No. 12); and the memoranda and exhibits submitted in support of and in opposition to each motion. For the reasons stated below, the Court grants Defendant's Motion for Summary Judgment and denies Plaintiff's Motion for Summary Judgment.

         I. BACKGROUND

         This case is the latest episode of Plaintiff's attempt to upgrade his discharge status from the United States Marine Corps. On September 15, 1983, Plaintiff was discharged from the Marine Corps as “Other than Honorable, ” but seeks to be upgraded to “Honorable” or “General Under Honorable Conditions.” (Doc. 1 at 5). Specifically, Plaintiff challenges the denial of his request for upgrade by the Board of Correction of Naval Records (“BCNR”) because the decision was not sufficiently clear regarding its findings and conclusions, failed to make determinations necessary to resolve Plaintiff's request for a discharge upgrade, made findings that are not supported by substantial evidence, and involved the review of unfairly prejudicial material that was not provided to Plaintiff. (Doc. No. 12-1)

         As an 18-year old in 1980, Plaintiff enlisted in the Marine Corps for a term of four years of active service. (Doc. No. 7 to 7-12: Administrative Record (“A.R.”) at 27). Plaintiff's term was cut short due to his discharge after just over three years in service, during which Plaintiff received several commendations. (Id.). Notwithstanding the commendations, Plaintiff also received four non-judicial punishments (“NJPs”) for violations of the Uniform code of Military Justice during his service. (Id. at 209).

         First, on July 9, 1980, Plaintiff received an NJP for failing to obey a lawful order. (Id. at 209). Second, on August 26, 1981, Plaintiff received an NJP for failure to go to his appointed place of duty. (Id.). Third, on September 22, 1981, Plaintiff received an NJP for absenting himself from the U.S.S. Ponce, LPD-15 and for carrying a concealed weapon, brass knuckles. (Id.). Fourth, on September 29, 1981, Plaintiff received an NJP for having knowledge of and failing to report another sailor who was in possession of illicit drugs. (Id.). Additionally, Plaintiff was counseled repeatedly due to his repeated NJPs. On January 9, 1982, August 18, 1982, and June 15, 1983, Plaintiff was counseled for his misconduct and informed of the potential consequences for his misconduct, including disciplinary action, administrative separation, judicial proceedings, and discharge status consequences. (Id. at 207).

         Finally, in May 1983, Plaintiff was found guilty of the wrongful use of marijuana during a summary court martial proceeding. (Id. at 68). On August 22, 1983, Plaintiff's commanding officer notified him that the Plaintiff was going to be recommended for administrative separation and could receive an Other Than Honorable discharge. (Id. at 142). As part of the separation process, Plaintiff repeatedly acknowledged and waived his rights to counsel and to an administrative board hearing. (Id. at 143). On September 15, 1983, Plaintiff was discharged under Other Than Honorable conditions. (Id. at 27).

         Almost 28 years later, on July 11, 2011, Plaintiff requested that the BCNR upgrade his discharge status based on his post-service conduct. (Id. 117). The BCNR denied this request on April 18, 2012. (Id. at 112-13). Over a year later, Plaintiff submitted a second request to the BCNR. (Id. at 18-26). Plaintiff modified his argument, contending that changes in Marine Corps policy had an unjust impact and were not communicated to him, errors in the discharge process existed, and Plaintiff's drug use should be viewed more leniently due to the impact of Plaintiff's service in Beirut. (Id.). On September 2, 2014, the BCNR again denied Plaintiff's request, stating that Plaintiff did not submit “any material evidence or other matter not previously considered by the Board.” (Id. at 4).

         Plaintiff then instituted a civil suit before this Court on April 2, 2015, which was eventually remanded at the joint request of the parties on July 20, 2015. Reape v. Mabus, No. 3:15-CV-00140-RJC-DSC (filed Apr. 2, 2015). According to the supplemental record Defendant submitted, Defendant agreed to remand the case because Plaintiff “was denied reconsideration by someone in BCNR without proper authority.” (Doc. No. 22 at 8). The improper denial referred to is the September 2, 2014 letter signed by Brian George. (Id. at 10). On September 22, 2015, the BCNR issued a letter to Plaintiff denying his request that it upgrade his discharge status. (A.R. at 1-3). The letter stated that the BCNR considered Plaintiff's complaints and allegations, but “concluded these factors were not sufficient to warrant relief in your case because of the seriousness of your repetitive misconduct, which included drug abuse, and because there is sufficient evidence in the record that is contrary to your allegations.” (Id. at 3).

         Plaintiff filed his complaint in the current suit on January 6, 2016, seeking judicial review of the BCNR's September 22, 2015 decision. (Doc. No. 1). Plaintiff alleges that Defendant violated the Administrative Procedure Act (“APA”), due process, and BCNR regulations, and that Defendant has unreasonably withheld and delayed Plaintiff's discharge upgrade. (Id. at 3- 5). On May 12, 2016, Defendant filed his Motion for Summary Judgment. (Doc. No. 9). On May 26, 2016, Plaintiff filed his Motion for Summary Judgment. Both parties timely filed response and reply memoranda. (Doc. Nos. 14, 18, 19, and 23). The cross motions for summary judgment are ripe for adjudication.


         Summary judgment is appropriate where there is no genuine dispute as to any material fact, and it appears that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The party moving for summary judgment bears the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material only if it might affect the outcome of the suit under governing law. Id.

         In the context of reviewing an administrative agency's decision, “a motion for summary judgment ‘stands in a somewhat unusual light, in that that administrative record provides the complete factual predicate for the court's review.'” Chan v. U.S. Citizenship and Immigration Servs., 141 F.Supp.3d 461, 464 (W.D. N.C. 2015) (citations omitted). Section 706 of the APA limits a court's role to “decid[ing] all relevant questions of law, interpret[ing] constitutional and statutory provisions, and determin[ing] the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706 (2015). In other words, “it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas ‘the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'” Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006) (citing Occidental Eng'g Co. v. Immigration & Naturalization Service, 753 F.2d 766, 769-70 (9th Cir. 1985); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994)). “Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Id. (citations omitted). Furthermore, military decisions receive “great deference” due to the differences in military and civilian decisions and the relevant expertise. See Rostker v. Goldberg, 453 U.S. 57, 65 (1981); Berry v. Bean, 796 F.2d 713, 716 (4th Cir. 1986). This deference creates “an unusually deferential application of the ‘arbitrary and capricious' standard.” Kreis v. Air Force, 866 F.2d 1508, 1515 (D.C. Cir. 1989).


         Plaintiff generally argues that the BCNR's decision to deny him a discharge upgrade violated his due process rights, the APA, and the rules governing the BCNR. (Doc. No. 12-1 at 1). Plaintiff specifically suggests that the decision is not sufficiently clear regarding its findings and conclusions, the decision makes findings that are not supported by substantial evidence, Defendant's process involved review of material that was unfairly prejudicial, and Defendant reviewed information that was not provided to Plaintiff. (Id. at 5). Defendant ...

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