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Mosley v. Department of The Navy

United States District Court, Second Circuit

May 15, 2013

ROBERT R. MOSLEY, Plaintiff,
v.
DEPARTMENT OF THE NAVY, Defendant.

Robert R. Mosley, Plaintiff, pro se.

Hon. Richard S. Hartunian, United States Attorney, Paula Ryan Conan, Esq., Assistant United States Attorney, Syracuse, New York, Attorney for Defendants.

MEMORANDUM-DECISION AND ORDER

NORMAN A. MORDUE, District Judge.

INTRODUCTION

In his amended complaint (Dkt. No. 22), plaintiff seeks review of the decision of the Board for Correction of Naval Records ("BCNR") denying his application to correct his military records and change his discharge from "other than honorable conditions" to "honorable conditions." Plaintiff filed a letter motion (Dkt. No. 27) requesting leave to file a summary judgment motion, accompanied by a motion for summary judgment. The letter motion was impliedly granted, inasmuch as the Court accepted the summary judgment motion and decides it herein (Dkt. No. 28). Defendant cross-moves (Dkt. No. 31) for summary judgment.

As set forth below, the Court grants the letter motion (Dkt. No. 27), denies plaintiff's summary judgment motion (Dkt. No. 28), grants defendant's summary judgment motion (Dkt. No. 31), and dismisses the case.

BACKGROUND

On January 20, 1984, plaintiff enlisted in the Navy's Delayed Entry Program, and on August 27, 1984, he began active duty. The administrative record shows the following:

§ On May 23, 1985, plaintiff received nonjudicial punishment ("NJP") for absence from his appointed place of duty.[1] The sanction was 15 days of restriction and extra duty.
§ On December 30, 1985, plaintiff was screened for alcohol abuse due to an alcohol related incident and placed in a treatment program.
§ On January 30, 1986 plaintiff received NJP for absence from his appointed place of duty, two instances of failure to obey a lawful order, use of marijuana, and drunk and disorderly conduct. The punishment imposed was forfeitures of $300 per month for two months, 45 days of extra duty and a reduction in pay rate.
§ Also on January 30, 1986, the Navy gave plaintiff "Notice of an Administrative Board Procedure Proposed Action" notifying plaintiff that he was "being considered for an administrative separation from the naval service by reason of Misconduct"; that if separation was approved it would result in a discharge; that if separation was approved, "the characterization of [his] service may be under other than honorable conditions"; and that he had various rights including the right to consult with counsel, to present statements in his own behalf, and to be represented by counsel at the Administrative Discharge Board ("ADB") hearing.
§ On January 31, 1986, plaintiff signed a "Statement of Awareness and Request for, or Waiver of, Privileges" acknowledging that he understood that he was "being considered for an administrative separation from the naval service which could result in an other than honorable discharge"; that he had consulted with counsel; and that he elected to assert various rights including the rights to present statements in his own behalf and to be represented by counsel at the proceeding.
§ On February 10, 1986 plaintiff was screened for drug abuse due to the positive urinalysis for marijuana. It was recommended that he be offered Veterans Administration in-patient alcohol/drug treatment prior to his discharge.
§ On February 21, 1986 plaintiff received NJP for attempting to drive on a naval base with an unauthorized vehicle pass. The punishment was 30 days of restriction and a reduction in pay rate.
§ On February 25, 1986 an ADB proceeding took place. Plaintiff was represented by counsel, witnesses were called, plaintiff's counsel cross-examined the witnesses, and plaintiff testified. The ADB found that plaintiff had committed misconduct due to the commission of a serious offense and drug abuse, and unanimously recommended that ...

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