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CLAIR v. SECRETARY OF NAVY

June 30, 1997

MICHAEL L. ST. CLAIR, PLAINTIFF,
v.
SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: Mihm, Chief Judge.

ORDER

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.

Background

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. (R116).

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, Id.

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"). (R7).

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.

Discussion

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 ...


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