The opinion of the court was delivered by: SPRIZZO
This is an action for correction of military records brought pursuant to 10 U.S.C. § 1552 (1982). Plaintiff Joseph J. Mahoney served in the United States Marine Corps from October 6, 1953 until May 24, 1956. Mahoney received a bad conduct discharge as a result of a general court-martial ("GCM") conviction on March 10, 1955. The GCM found Mahoney guilty on two specifications of desertion and one count of failure to obey a lawful order.
The evidence before the GCM was as follows. Mahoney, without authorization, twice departed from his duty station at Quantico, Virginia, and remained away from his duty station for protracted periods of time, 54 and 142 days respectively. Each absence was terminated by Mahoney's arrest (in Yonkers, New York), and each arrest took place far from Mahoney's duty station, but near to another duty station (Brooklyn, New York) to which Mahoney could have returned. During the periods of his absence from duty in 1954, Mahoney was found to be living with an unmarried civilian female in Yonkers, New York. At the time, this woman was pregnant with a child whom both plaintiff and she believed she had conceived with Mahoney in May of 1954. At his court-martial, both plaintiff and this woman testified that Mahoney had secured civilian employment during the period of his second prolonged absence from duty. See Ex. A to Defendant's Notice of Motion (certified copy of the complete record of Mahoney's court-martial) at 10, 37-41; see also Ex. B to Verified Complaint at 1.
At the time of plaintiff's conviction, authorized punishment for his offenses included dishonorable discharge, confinement for a period of up to six years, total forfeiture of pay, and reduction in pay to the lowest pay grade, E-1. See Exec. order No. 10214, 3 C.F.R. 408 (1951), reprinted in Manual for Courts-Martial, United States (1951), at § 127c. Plaintiff received instead a bad conduct discharge, forfeiture of all pay and allowances for eighteen months, confinement for a period of eighteen months, and a reduction of pay grade to level E-1. See Verified Complaint at P "Eighth"; Ex. A. to Verified Complaint.
Mahoney's sentence by the GCM was approved by the Commandant Third Naval District (the convening authority) on March 24, 1955. See Ex. A to Defendants' notice of Motion at 8-9, 56. In accordance with Article 66 of the Uniform Code of Military Justice, ch. 169, art. 66, 64 Stat. 107, 128-29 (1950) (current version at 10 U.S.C. § 866 (1982)), the conviction was reviewed and affirmed by the Navy Board of Review
on April 26, 1955. On August 8, 1955, plaintiff elected to waive an opportunity for restoration to duty. See Ex. B to Verified Complaint at 1. On May 24, 1956, Mahoney received a bad conduct discharge from the Marine Corps. See id.
On November 12, 1982, Mahoney applied to the Board for Correction of Naval Records ("BCNR") for corrective action with regard to his conviction and sentence. Specifically, Mahoney "applied . . . for an Honorable Discharge and incidental relief for remission of the forfeitures." See Verified Complaint at P "Ninth." On March 15, 1983, the BCNR met in executive session to consider Mahoney's application and denied the application on March 21, 1983. See id. at P "Ninth"; see also Ex. B to Verified Complaint at 1.
On May 19, 1983, Mahoney filed the instant suit pursuant to 10 U.S.C. § 1552. Defendants United States of America ("USA") and Secretary of the Navy ("Secretary") have moved for dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b)(1), or alternatively for summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiff Mahoney has cross-moved for summary judgment.
The plaintiff contends that, upon the record of the GCM and upon his application to the BCNR, the action of the BCNR was "arbitrary, capricious, was not supported by substantial evidence, and was unconstitutional." See Verified Complaint at P "Tenth." Plaintiff alleges:
The Board acted on the basis of findings of fact not supported by evidence of record, in that there is no evidence to show intent on plaintiff's part to desert the service, the Board relying on length of absence and part- time janitorial work performed by the plaintiff, while disregarding much morte cogent evidence that plaintiff considered his absences temporary to alleviate a temporary situation.
The Board also disregarded the compete absence of proof on the part of the government at the General Court- ...