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Herka v. Maybus

United States District Court, D. Arizona

January 3, 2017

Charissa Herka, Plaintiff,
Ray Maybus[1], Secretary of the Navy, et al., Defendants.


          Stephen M. McNamee Senior United States District Judge

         Plaintiff Charissa Herka (“Plaintiff”) filed her Complaint against Secretary of the Navy, Ray Mabus (“Secretary”), the Board of Correction of Naval Records (“BCNR”), and the Naval Discharge Review Board (“NDRB”) (collectively “Defendants”). (Doc. 1.)[2]Plaintiff seeks to change her military service record and her discharge from the U.S. Navy to “Honorable.” (Id.) Pending before the Court is Defendants' Motion for Summary Judgment asking the Court to deny Plaintiff relief. (Doc. 20.) The motion is now fully briefed. (Docs. 21-23.)

         The Court will grant Defendants' motion for summary judgment, deny Plaintiff relief, and terminate this case.

         BACKGROUND [3]

         Plaintiff enlisted in the U.S. Navy on March 16, 2004, and was later assigned to the guided missile destroyer USS Bainbridge. (Doc. 15-2 at 107.) On or about April 11, 2005, Plaintiff acknowledged receipt of a Notice of her Command's intent to initiate administrative separation processing for “misconduct due to drug abuse” (“Notice”). (Id. at 226-27.) The Secretary appointed Plaintiff counsel, Lt. Kelly Lemke, JAG, advised her of her rights, and Plaintiff elected to appear before an Administrative Discharge Board (“ADB”). (Id. at 85, 111-12.) On May 12, 2005, the three-member ADB panel heard evidence and argument concerning the Notice. (Id. at 99-108, 147.)

         The particular testimony presented at this proceeding will be throughly addressed infra in the Court's Discussion section. The ADB panel unanimously found that the preponderance of the evidence substantiated a finding of Plaintiff's drug abuse, and the ADB panel recommended that Plaintiff be separated with a General Characterization of Service. (Id. at 97, 107-08, 147-48.) On June 20, 2005, Plaintiff's Commanding Officer concurred with the Board's findings and “strongly recommended” that Plaintiff be separated with a characterization of service as General. (Id. at 97-98.) On June 22, 2005, the Commander of the Naval Personnel Development Command authorized Plaintiff's discharge under a General (Under Honorable Conditions) character of service by reason of misconduct due to drug abuse. (Id. at 96.) Subsequently, Plaintiff was issued a record listing “Misconduct (Drug Abuse)” as the narrative reason for separation, a “General (Under Honorable Conditions)” characterization of service and an “RE-4” reentry code, meaning ineligible for reenlistment. (Doc. 15-3 at 1.)

         On March 8, 2006, Plaintiff applied to the NDRB to upgrade her discharge to “Honorable.” (Doc. 15-2 at 82.) On January 26, 2007, a five-member NDRB panel unanimously determined there was “credible evidence in the record that the Applicant used illegal drugs” (id. at 86), and that there had been “no impropriety or inequity” in the processing of Plaintiff's case (id. at 80).

         On August 9, 2007, the BCNR received an application from Plaintiff to change her reentry code. (Id. at 73-76.) On February 4, 2008, a three-member panel of the BCNR unanimously denied relief, finding that the “evidence submitted was insufficient to establish the existence of probable material error or injustice.” (Id. at 69-70.)

         On January 23, 2009, Plaintiff filed another application with the NDRB and requested an amendment to her narrative reason for separation, her RE-4 reentry code and characterization of service. (Id. at 68.) On November 4, 2009, Plaintiff and her counsel appeared for a live hearing before a five-member panel of the NDRB in the Navy Yard in Washington, D.C. (Doc. 19.) On January 20, 2010, the five-member NDRB panel unanimously denied relief and found that Plaintiff's discharge “was proper and equitable.” (Doc. 15-2 at 11.)

         On or about March 24, 2011, Plaintiff submitted another application for review with the BCNR. (Doc. 15-1 at 62-64.) On April 28, 2011, the BCNR denied Plaintiff's application, which it construed as a request for reconsideration of its February 4, 2008 decision. The BNCR advised that that while “at least some of the evidence you have submitted is new, it is not material” - and Plaintiff therefore had failed to satisfy the BCNR's standard for reconsideration. (Id. at 58.)

         On July 22, 2013, Plaintiff again applied to the BCNR for reconsideration. (Id. at 43-48.) On September 2, 2014, the BCNR notified Plaintiff that her latest application failed to include “any new and material evidence not previously considered by the Board, ” and it denied her request. (Id. at 28.)

         On October 23, 2014, Plaintiff filed her Complaint with this Court requesting that the Court “order the BCNR and/or NDRB to upgrade her discharge, or vacate and remand their decisions.” (Doc. 1 at 5.) On April 14, 2015, pursuant to a joint motion, the Court remanded the matter to the BCNR. (Docs. 7-8.) The parties requested a remand to permit the BCNR to review all of the material Plaintiff had submitted with her March 2011 and July 2013 applications, and to “address in detail the issues raised and relief sought” by Plaintiff. (Doc. 7 at 2.) On remand, on July 22, 2015, a three-member BCNR panel, sitting in executive session “carefully considered documentary material consisting of the proceedings of the NDRB; [Plaintiff's] previous applications and reconsideration requests; [Plaintiff's] naval record and applicable statutes, regulation and policies; and supplemental guidance issued by the Secretary of Defense to military correction boards regarding the treatment of discharge upgrade requests by veterans claiming Post-Traumatic Stress Disorder” (“PTSD”). (Doc. 15-1 at 3.)

         In its July 22, 2015 decision, the BCNR panel denied relief, finding that “there was insufficient evidence to support [Plaintiff's] allegations and the misconduct she committed while in the service was too serious to warrant an honorable characterization of service.” (Id. at 4-5.) Addressing Plaintiff's assertion that the Secretary of Defense's recent memorandum regarding PTSD applies to her case, the BCNR panel found that the memorandum did not apply to cases, like this, that involve a characterization of service of “Honorable” (as opposed to “Under Other Than Honorable Conditions”). (Id. at 6.) The BCNR panel also found that Plaintiff's drug-related misconduct was “too serious” to warrant relief despite her alleged PTSD. (Id. at 6.)

         It is undisputed that Plaintiff has exhausted all of her administrative remedies and Plaintiff now seeks review of Defendants' final decision that denied her relief. (Doc. 1.) The final agency action that is subject to this Court's judicial review is the BCNR's July 22, 2015 Decision. (Doc. 15-1 at 3-6.)

         STANDARD ...

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