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BLASSINGAME v. SECRETARY OF THE NAVY

November 14, 1985

LARRY E. BLASSINGAME, Plaintiff, against SECRETARY OF THE NAVY, NAVAL DISCHARGE REVIEW BOARD, and BOARD FOR THE CORRECTION OF NAVAL RECORDS, Defendants


The opinion of the court was delivered by: PLATT

PLATT, D. J.

NATURE OF THE CASE

 Plaintiff filed this suit to compel defendants to upgrade plaintiff's undesirable discharge from the Marine Corps to honorable status with credit for time served. In addition he demanded monetary damages in the amount of Thirty Million ($30,000,000) Dollars. The allegations in his pro se complaint were for erroneous enlistment, wrongful discharge and racial discrimination. A Court-ordered attorney subsequently amended the pleadings, requesting "equitable relief to address [sic] legal wrongs suffered by plaintiff as the result of actions taken by the defendants." (Amended Complt. at P3.) Jurisdiction was predicated on the Tucker Act, codified at 28 U.S.C. § 1346(a)(2), and the Administrative Procedures Act, codified at 5 U.S.C. § 701 et seq.

 A. Procedural History

 After numerous adjournments, the case came before this Court on August 30, 1985, on defendants' motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted; alternatively, defendants requested a more definite statement with respect to plaintiff's claims. After hearing the arguments the Court reserved decision on the motion.

 While the case was under advisement the Court received a letter from plaintiff's attorney dated September 5, 1985 which introduced a matter that was not raised at the oral argument, specifically, that plaintiff was wrongfully enlisted into the Marine Corps and did not learn of the fact until 1982 when he obtained competent pro bono legal assistance from the National Veterans Law Center in Washington, D.C. Such a claim, if substantiated, would not entitle plaintiff to the equitable relief requested in his complaint because a prerequisite for an honorable discharge is a valid enlistment. See Judge Advocate Division Comment, Defs. Reply Mem. App. V at pp. 2-3. Nevertheless, it would at least warrant removal of the undesirable discharge from plaintiff's record. Because this claim was not embodied in the amended complaint (although it was asserted in the pro se complaint) this Court requested a reply brief from the government.

 After receiving the government's response, which included a motion to strike the contents of the September 5 letter, the Court received a second letter from the plaintiff's attorney. Attached to it were several recent cases supporting the proposition that judicial review of a military board proceeding, pursuant to the Administrative Procedures Act ("APA"), is a distinct cause of action from review of the discharge itself and triggers its own statute of limitations period. The government again responded with a supplemental brief. Thus, to date plaintiff has alleged three distinct claims for relief. After briefly sketching the factual context of the case, the Court will address each of plaintiff's arguments in turn.

 B. Background

 The plaintiff, Larry Blassingame, enlisted in the United States Marine Corps on July 9, 1969 at the age of 17 years, 19 days old. Plaintiff had only a tenth grade education and his test results placed him in Group IV, the lowest mental category the Navy allows to enlist.

 Within a two-year period Mr. Blassingame's persistent pattern of misconduct provoked a number of nonjudicial punishments for disrespectful conduct, failure to obey orders, unauthorized absence, and sleeping on watch in a hostile fire area. (Defs. Reply Mem. App. I.) The culmination of these repeated incidents came in June 1971 when plaintiff received an undesirable discharge due to frequent involvement of a discreditable nature with the military authorities. *fn1"

 In 1973 and again in 1977, plaintiff petitioned the Naval Discharge Review Board ("NDRB"), pursuant to 10 U.S.C. § 1553(a), *fn2" to upgrade his Undesirable Discharge to an Honorable Discharge. *fn3" On both occasions plaintiff was represented by counsel and in both instances the NDRB denied his request.

 In 1979, six years after the NDRB first denied plaintiff relief, he petitioned the Board for the Correction of Naval Records ("BCNR") to upgrade his discharge. Normally, review by the BCNR occurs within three years after a claimant discovers an error or injustice, but in certain cases the Board may excuse the failure to timely file if it is in the interest of justice. 10 U.S.C. § 1552(b) (1982). The BCNR denied Mr. Blassingame's request in April 1981. In November of that year, plaintiff repetitioned the NDRB for a discharge upgrade. Relief was denied in February 1983 and again in December 1983 when the NDRB reconsidered the matter at plaintiff's request. The decision by the NDRB was approximately 30 pages in length and responded to each of plaintiff's 56 material contentions.

 Finally, in February 1984 plaintiff repetitioned the BCNR. The BCNR referred the matter to the Judge Advocate General, who furnished an advisory legal opinion. That opinion, along with plaintiff's counsel's comments thereto, was resubmitted to the BCNR and once again relief was denied in June 1984. Ultimately, on October 11, 1984, Mr. Blassingame filed suit in federal court for monetary and equitable relief to redress the wrongs allegedly committed against him during his tenure and discharge from the United States Marine Corps.

 DISCUSSION

 Although plaintiff in the time since the filing of the amended complaint has continued to add claims and jurisdictional allegations with procedural abandon, in the interest of judicial efficiency this Court will address all of plaintiff's cumulative arguments.

 I. Wrongful Discharge

 A. Subject Matter Jurisdiction

 The amended complaint characterizes plaintiff's claim as one for equitable relief, predicating jurisdiction on the Tucker Act and the APA. The Memorandum of Law Opposing Defendants' Motion to Dismiss tacks on the federal question statute, 28 U.S.C. § 1331, the mandamus statute, 28 U.S.C. § 1361, and the declaratory judgment statute, 28 U.S.C. § 2201, as additional jurisdictional bases. Upon reviewing the legal arguments ...


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