The opinion of the court was delivered by: Mihm, Chief Judge.
This matter is before the Court on Defendant's Motion Dismiss
[#6-1] or, In the Alternative, Motion for Summary Judgment
[#6-2]. For the reasons set forth below, Defendant's Motion to
Dismiss is DENIED.
Plaintiff, Michael St. Clair ("St. Clair"), enlisted in the
United States Navy on August 15, 1988. (R117). After completing
basic training, he attended Machinist Mate ("MM") "A" school in
Orlando, Florida and graduated in February 1989. (R120). St.
Clair was assigned to Naval Nuclear Power School after graduation
and received training in Nuclear Power Plant Operation as an
Engineering Lab Technician, which concluded on July 13, 1990. Id.
St. Clair was then assigned to the U.S.S. Archerfish (SSN 678), a
submarine located at the Submarine Base in New London,
Connecticut. (Complaint). On November 2, 1990, he reenlisted in
the U.S. Navy and was promoted to Machinist Mate Second Class.
On September 15, 1991, St. Clair was arrested by civilian
authorities in Mystic, Connecticut, for driving under the
influence of alcohol. (R11). This charge was dismissed after St.
Clair completed an alcohol education course. (R3). On October 29,
1991, he was stopped by the New London Submarine Base police and
charged with drunken driving on the base. (R13). The base police
released St. Clair to a representative of the U.S.S. Archerfish.
(R48). On the way back to the submarine, St. Clair punched the
windshield of the Navy truck, causing the windshield to crack,
After each incident, St. Clair was evaluated by a Counseling
and Assistance Center counselor ("CAAC"). (R11, 13). The
counselor found that St. Clair was not psychologically dependent
on alcohol and recommended he be held accountable for his actions
and receive CAAC Level II treatment. Id. On November, 8, 1991,
St. Clair received nonjudicial punishment for the offenses of
wrongful destruction of military property and drunk or reckless
driving in violation of Articles 108 and 111 of the Uniform Code
of Military Justice ("UCMJ") and it was recommended that St.
Clair be administratively processed for separation. (R20). He was
restricted to the U.S.S. Archerfish for 30 days, given extra
duties for 30 days, and had his pay grade reduced. (R24).
On February 27, 1992, Submarine Development Squadron TWELVE
notified St. Clair that he was being administratively processed
for separation pursuant to MILITARY PERSONNEL MANUAL
3630600.(R5). St. Clair then met with legal counsel and requested
a hearing before the Administrative Discharge Board ("ADB").
On May 27, 1992, the Commanding Officer, Submarine Development
Squadron TWELVE, endorsed the ADB's recommendation and forwarded
it to the Chief of Naval Personnel, Enlisted Separation Branch.
(R3). On June 19, 1992, the Chief of Naval Personnel, Enlisted
Separation Branch, directed Submarine Development Squadron TWELVE
to discharge St. Clair with a "General, Under Honorable
Conditions" discharge. (R1). On July 6, 1992, St. Clair was
discharged from the Navy. (R93).
St. Clair applied to the Naval Discharge Review Board ("NDRB")
for recharacterization of his discharge to "Honorable" on July
18, 1994. (Complaint at 4). The NDRB reviewed the evidence and
determined no upgrade was warranted. (R96). The NDRB cited St.
Clair's two incidents of driving under the influence of alcohol
and destruction of the government truck's windshield, noting that
these actions were not minor offenses. (R100). Following the
NDRB's decision, St. Clair brought the current lawsuit under the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706 (2),
alleging that the NDRB's actions were arbitrary and capricious,
an abuse of discretion, unsupported by substantial evidence, and
contrary to his constitutional and statutory rights. (Complaint
at 4). Defendant filed a Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment on March 21, 1997.
In resolving a motion to dismiss, this Court must consider all
well-pled facts as true and must draw all inferences in favor of
the non-moving party. Bontkowski v. First Nat. Bank of Cicero,
998 F.2d 459, 461 (7th Cir.), cert. denied, 510 U.S. 1012, 114
S.Ct. 602, 126 L.Ed.2d 567 (1993). In ruling on a motion to
dismiss, courts consider whether relief is possible under any set
of facts that could be established consistent with the
allegations in the Complaint. Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). This Court will
dismiss a claim only if it is beyond doubt that no set of facts
would entitle the Plaintiff to relief. Venture Associates Corp.
v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir. 1993).
The Defendant argues that this action should be dismissed
because St. Clair failed to exhaust his administrative remedies.
(Defendant's Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment ("Motion to Dismiss") at 2). In support of his
position, Defendant cites Duffy v. United States, 966 F.2d 307
(7th Cir. 1992), and points out that St. Clair is entitled to
challenge the NDRB's decision before the Board for Correction of
Naval Records ("BCNR"). (Motion to Dismiss at 3).
In Duffy, an Air Force reservist brought an action under the
Federal Tort Claims Act against superior officers and the United
States challenging his discharge and seeking to recover for his
allegedly unlawful call into active duty, arrest, transfer, and
detention. 966 F.2d at 308-09. The district court dismissed the
claim because Duffy had failed to exhaust administrative remedies
(file a claim with ...