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PEREZ v. UNITED STATES

April 14, 1994

LUIS PEREZ, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant.


Williams


The opinion of the court was delivered by: ANN CLAIRE WILLIAMS

Plaintiff Luis Armando Perez ("Perez" or "PN2 Perez") has brought suit against the United States. Perez seeks a declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, finding that his administrative discharge from the U.S. Navy is void and that he has never been legally separated from the armed services. He also seeks an order compelling the Secretary of the Navy to formally vacate his administrative discharge and restore plaintiff to his pre-discharge status as a Petty Officer, Second Class in the United States Navy. This matter is before the court on defendant's motion for dismissal or in the alternative summary judgment, and plaintiff's "cross-motion" *fn1" for summary judgment. The court denies defendant's motion for dismissal, while granting the motion for summary judgment in part and denying it in part. Plaintiff's "cross-motion" for summary judgment is denied pending the filing of a proper motion and supplemental briefing on the precise nature of the relief sought.

 BACKGROUND

 In August 1992, Perez, was administratively discharged from the United States Navy ("Navy") under Other Than Honorable Discharge by Reason of Misconduct Due to Commission of a Serious Offense. Plaintiff had served twelve years in the United States Navy at the time of his discharge. Having first enlisted in 1979, Perez worked as a petty officer on active duty and, at the time of his discharge, held the rank of petty officer second class. As defendants readily acknowledge, Perez was an outstanding sailor. Indeed, throughout his service with the Navy, Perez received numerous excellent evaluation reports, and was regularly recommended for advancement. (See A.R. 63-94).

 In July 1985, plaintiff married Petty Officer Kathleen Pedigo ("Pedigo") who, like plaintiff, was also on active duty at the time of the events in question. Together, they had one child, Blake Perez ("Blake"). On March 9, 1990, plaintiff and Pedigo were divorced and Pedigo was awarded custody of Blake. She subsequently requested, and was granted, permission to transfer to Italy. In late October 1990, Perez also requested a transfer to Italy to be near his son. (A.R. 377). He received letters in support of his transfer request from several Navy counsellors. (A.R. 378-81).

 On Nov. 5, 1990, while at a military day care center in Italy, a day care worker, Marisa Minton, claimed to have found Blake imitating anal intercourse with another one of the children. (A.R. at 476). Blake was four years old at the time. When Ms. Minton asked Blake about what he was doing, he reportedly said: "My daddy does it to me all the time. He hugs me and tells me not to tell my Mommy." (A.R. at 476). After being informed of her son's statements and conduct, Pedigo claimed that Blake had twice before made comments to her indicating that he may have been sexually abused by his father. According to Pedigo, Blake told her in July 1990 that "Daddy touched my pee-pee" and on another occasion said that "Daddy puts his pee-pee in my mouth." (A.R. 512).

 Initially, the allegations against plaintiff were investigated by the Naval Criminal Investigative Service (NCIS). After this preliminary investigation, plaintiff's Commanding Officer, Personnel Support Activity, Great Lakes, Illinois ("Commanding Officer") preferred charges against Perez. Plaintiff was charged with one count of sodomy under 10 U.S.C. § 925 and six counts of indecent acts or liberties with a child under 10 U.S.C. § 934. *fn2"

 In September 1991, the Commanding Officer convened a pretrial investigation in accordance with 10 U.S.C. § 832 ("Article 32 investigation") to determine whether a general court-martial was warranted under the circumstances. (A.R. at 397-470). The investigation lasted three days and plaintiff was represented by military counsel throughout the proceeding.

 At the investigation NCIS Investigating Officer Ursula Pedrillo and Pedigo testified. (A.R. at 403-406). Statements from the social worker and counselor involved with Blake Perez were admitted and made part of the record as were clinical notes of treatment, letters from the plaintiff to Blake, statements from people who had contact with Blake at the day care center. (A.R. at 467-512). After the Article 32 hearing, the Investigating Officer, Ursula Pedrillo, recommended that charges not be referred to a General Court Martial. Consequently, the Commanding Officer chose an administrative separation procedure, instead of convening a general court martial or taking no action whatsoever. *fn3"

 Paragraph 1c of MILPERSMAN § 3630600 permits separation for:

 
Commission of a serious military or civilian offense, if:
 
(1) the specific circumstances of the offense warrant separation; and
 
(2) a punitive discharge would be authorized by the Manual for Courts-Martial for the same or a closely related offense. *fn4"

 When a member is processed for commission of a serious offense, as was the case here, Paragraph 5c of MILPERSMAN § 3630600 requires that the Administrative Board Procedure be followed. The Administrative Board Procedure is set forth in MILPERSMAN § 3640300. This section provides inter alia that:

 
When an Administrative Board is required, the member shall be notified in writing by their commanding officer of the following matters . . . .:
 
a. The basis of the proposed separation, including the circumstances upon which the action is based, and referenced to the applicable reason for separation in [Milpersman] . . . .
 
d. A statement of the respondent's right to consult with counsel . . . .
 
h. A statement of the respondent's right to representation at the Administrative Board by qualified counsel.

 MILPERSMAN § 3640300.

 On October 30, 1991, in accordance with the notice requirements of MILPERSMAN § 3640300, plaintiff received "Notice of Notification Procedure Proposed Action". Though the notice erroneously referenced MILPERSMAN § 3630650 (separation in lieu of court martial), the court is satisfied that plaintiff was well aware of the administrative nature of the separation proceeding he was facing. *fn5"

 Following the conclusion of the hearing, the Board deliberated for ten minutes and found, by a vote of 3 to 0 that plaintiff had committed misconduct due to commission of a serious offense for which he should be separated from the Navy with an Other Than Honorable Discharge. (A.R. at 218, 323). These recommendations, along with Perez' counsel's letter of deficiencies were then forwarded to Perez' Commanding Officer. The Commanding Officer adopted the recommendations, and on May 5, 1992 the Chief of Naval Personnel ordered that Perez be separated from the Naval Service with Other than an Honorable Discharge. PN2 Perez was ultimately discharged on August 5, 1992.

 Following his discharge, plaintiff filed suit in this court requesting review of the Board's decision. Defendant subsequently filed the instant motion to dismiss or, in the alternative, for summary judgment.

 DISCUSSION

 I. Motion to Dismiss

 As a preliminary matter, defendant contends that this suit should be dismissed because plaintiff has not exhausted all available administrative remedies. In light of the recent Supreme Court decision in Darby v. Cisneros, 125 L. Ed. 2d 113, 113 S. Ct. 2539 (1993), this court finds otherwise. In Darby, the Court ruled that federal courts have no authority to require a plaintiff to exhaust available administrative remedies before seeking judicial review under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., ("A.P.A.") *fn6" unless the statute or agency rules specifically mandate exhaustion as a prerequisite to judicial review. Id. at 2543-45.

 Here, as the government points out, and plaintiff himself concedes (Complaint at P VI), Perez could have appealed the Board's decision directly to the Board for Correction of Naval Records ("BCNR"). Established pursuant to 10 U.S.C. § 1552, *fn7" BCNR has broad equitable powers to correct service member's official military records. In Chappell v. Wallace, 462 U.S. 296, 76 L. Ed. 2d 586, 103 S. Ct. 2362 (1983), the Supreme Court summarized BCNR's authority as follows:

 Id. at 303.

 Indeed, by exhausting his administrative remedies, Perez might have saved this court, the government, and himself considerable time and expense. The exhaustion doctrine provides an agency with an opportunity "to correct its own errors, to afford the parties and the courts the benefit of [the agency's] experience and expertise and to compile a record which is adequate for judicial review." Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975). Yet, critically, nothing in the applicable statute, 10 U.S.C. § 1552 or regulations, 32 C.F.R. Part 732, requires Perez to avail himself of the BCNR's broad remedial powers. Having "exhausted all administrative review expressly prescribed by statue or agency rule," Darby, 113 S. Ct. at 2544 (emphasis added), Perez is entitled to seek direct judicial review of the Board's decision as a final agency action.

 Understandably, defendant attempts to distinguish Darby, arguing that the Darby Court was not confronted with prior precedent recognizing the military's special status as an agency apart with its own "comprehensive internal system of justice to regulate military life". (Response at 5, quoting Chappell, 462 U.S. at 302). *fn8" See also Goldman v. Weinberger, 475 U.S. 503, 506-508, 89 L. Ed. 2d 478, 106 S. Ct. 1310 (1986) (noting generally the considerable deference courts have shown the professional judgment of military authorities); Department of Navy v. Egan, 484 U.S. 518, 530, 98 L. Ed. 2d 918, 108 S. Ct. 818 (1988) ("unless Congress has specifically provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military ...


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