Travis N. Gery, Judge Advocate General Corps, United States Naval
Reserve. (R32-58). After hearing all the evidence, the ADB
determined that St. Clair had committed misconduct due to the
commission of a serious offense and unanimously recommended St.
Clair's separation be characterized as "General, Under Honorable
Conditions." (R32). This recommendation was forwarded to the
Commanding Officer, Submarine Development Squadron TWELVE. Id.
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 the Air Force Board for Correction of Military
Records), and the Court of Appeals affirmed. Id. at 310-11.
In light of the Supreme Court's ruling in Darby v. Cisneros,
509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), the Court
finds Duffy inapposite and concludes that St. Clair has
sufficiently exhausted his administrative remedies in this case.
[E]xhaustion doctrine continues to apply as a matter of judicial
discretion in cases not governed by the APA[,] . . . where the
APA applies, an appeal to "superior agency authority" is a
prerequisite to judicial review only when expressly required by
statute or when an agency rule requires appeal before review and
the administrative action is made inoperative pending that review.
Darby, 509 U.S. at 152-54, 113 S.Ct. at 2548 (emphasis in
Here, Defendant has offered, at best, the Declaration of Alan
Goldsmith, who states that "an applicant has the right to
petition the BCNR to review a discharge after the NDRB has
reviewed the case." (Declaration of Alan Goldsmith at 2). This is
not the kind of express requirement described in Darby.
Furthermore, neither the applicable statute, 10 U.S.C. § 1552,
nor regulations, 32 C.F.R. Part 723-24, expressly require appeal
to the BCNR before judicial review. If the Navy wishes to require
an appeal to the BCNR before judicial review under these
circumstances, it should include an express requirement in its
regulations or ask Congress to include such an express
requirement in the statute.
Alternatively, Defendant contends that the Court should dismiss
St. Clair's claims because they require the Court to intrude into
an area committed to military discretion. (Motion to Dismiss at
4). The Court finds this argument unpersuasive. While recognizing
that intraservice military disputes are entitled to judicial
deference, this deference affects only the merits of St. Clair's
constitutional claim, not whether the Court should review the
claim at all. See Knutson v. Wisconsin Air Nat. Guard,
995 F.2d 765, 769 (7th Cir. 1993) ("Deference to the military only
affected the Supreme Court's judgment as to the merits of [the]
constitutional claim, not the question of whether it should have
reviewed the claim at all."). In fact, "[t]he courts can review
military's orders which allegedly violate the Constitution, acts
of Congress, or the military's own regulations." Blameuser v.
Andrews, 473 F. Supp. 767, 768 (E.D.Wis. 1979), aff'd,
630 F.2d 538 (7th Cir. 1980) (internal citations omitted). St. Clair
alleges violations of the UCMJ, 10 U.S.C. § 831, the Fifth
Amendment, and the APA. All of these claims fall within the scope
of judicial review.
In support of his contention that St. Clair's challenge is
nonjusticiable, the defendant cites Knutson v. Wisconsin Air
National Guard, 995 F.2d 765 (7th Cir. 1993). However, the
decision in Knutson dealt with the scope of injunctive relief
available in civilian courts and was not a per se rule exempting
military decisions from judicial review. Id. at 770-771.
Additionally, the plaintiff in Knutson sought reinstatement,
while St. Clair seeks to upgrade his administrative discharge.
While reinstating a discharged serviceman may interfere in a
province committed to the military's discretion, the Court finds
that upgrading a serviceman's discharge is a "matter of
administrative inconvenience" and is not sufficient to preclude
review. Id. at 771.
Several cases, none directly binding on the Court (and none of
which were cited by either side in relation to this Motion), have
dealt with this question and come to different conclusions. See
Perez v. U.S., 850 F. Supp. 1354, (N.D.Ill. 1994) (refusing to
grant military exception to Darby); Saad v. Dalton, 846 F. Supp. 889
(S.D. Cal. 1994) (granting military exception to Darby);
Ostrow v. Secretary of Air Force, 48 F.3d 562, 1995 WL 66752
(D.C.Cir. 1995) (refusing to grant military exception to Darby).
After considering these cases, the Court finds the reasoning in
Perez to be the most persuasive. The Supreme Court's decision in
Darby relies on the plain meaning of the statutory text, speaks
in general terms of all agencies, and does not distinguish
between the military and other agencies. Similarly, the text of
the APA does not differentiate between military agencies and
other agencies. For these reasons, the Court is hesitant to read
such a distinction into the APA. Thus, although mindful of the
special nature of the armed services, the Court refrains from
granting a military exception to the rule set forth in Darby.