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LORD v. LEHMAN

June 9, 1982

Charles LORD
v.
Joseph LEHMAN, Secretary of the Navy, Department of the Navy and W. Dean Pfeiffer, Executive Director, Department of the Navy, Board for Correction of Naval Records



The opinion of the court was delivered by: LUONGO

Plaintiff, Charles Lord, brought this action pursuant to § 702 of the Administrative Procedure Act, 5 U.S.C. § 702, seeking judicial review of his undesirable discharge from the United States Marine Corps. Named as defendants are Joseph Lehman, Secretary of the Navy, and W. Dean Pfeiffer, Executive Director of the Board for Correction of Naval Records (BCNR). Jurisdiction over this action is pursuant to 28 U.S.C. § 1331. Neal v. Secretary of Navy, 639 F.2d 1029, 1036 (3d Cir. 1981). Presently before me are cross-motions for summary judgment.

 The material facts in this action are undisputed and are as follows. On October 23, 1974, Lord, a Marine Corps private, was convicted of arson by North Carolina civilian authorities for setting fire to an empty trailer-home and was sentenced to five to seven years in the North Carolina State Prison. This conviction led Lord's commanding officer, Lieutenant Colonel J. A. O'Brien, to recommend that Lord be given an undesirable discharge *fn1" on the ground of misconduct. (Exhibit B to Complaint at 67) Under the applicable regulation a "(conviction) by civil authorities ... which (was) tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice (was) ... confinement in excess of one year" provided a basis for an undesirable discharge. 32 C.F.R. § 41.7(j)(1); Marine Corps Separation and Retirement Manual P 6018.2(c) (Exhibit D to Complaint) (reprinted at 32 C.F.R. § 730.67(d)(3) (1975)). *fn2" There is no dispute that Lord's arson conviction was such a conviction.

 On July 11, 1975 an Administrative Discharge Board (ADB) was convened at Lord's request pursuant to 32 C.F.R. § 41.7(i) & § 730.54(b)(1) (1975). Lord did not attend the hearing (apparently due to his incarceration) but he was represented by counsel. (Complaint P 13; see also Exhibit B to Complaint at 33) The ADB, which consisted of three military voting members, unanimously recommended to the Commanding General "that Pvt. Lord be separated from the Marine Corps with an Undesirable Discharge under conditions other than honorable due to misconduct on the specific basis of a civil conviction." (Exhibit B to Complaint at 10) This was the only finding made by the ADB. The Commanding General concurred with this recommendation (Exhibit C to Complaint at 24) and Lord was given an undesirable discharge on August 12, 1975. (Id. at 28)

 On June 21, 1979, Lord applied to the Naval Discharge Review Board (NDRB) to have his discharge upgraded to honorable. (Exhibit A to Complaint at 21) Briefly, pursuant to 10 U.S.C. § 1553, the NDRB is empowered to change a discharge or issue a new discharge to former members of the Navy or Marines. Id. § 1553(b). The NDRB conducted a hearing on Lord's application on January 18, 1980. Lord, who was represented by his present counsel, appeared and testified at this hearing. After considering the testimony, Lord's service record, and a "list of contentions of law, fact and discretion to be answered in the board's determination of law, fact and discretion" submitted by Lord's counsel, the NDRB, finding that none of Lord's contentions were valid, denied Lord's application for an upgrade of his discharge. (Exhibit A to Complaint at 33) The NDRB concluded that

 
(t)he type of the applicant's discharge should not be changed because the nature of the offense which resulted in the applicant's civil conviction possesses a degree of aggravation and constitutes moral turpitude which warrants characterization of the applicant's separation as under other than honorable conditions.

 (Id. at 34)

 On June 16, 1980, Lord applied to the Board for Correction of Naval Records (BCNR) to correct his discharge from undesirable to honorable. The BCNR is a civilian board which is empowered to recommend to the Secretary of the Navy the correction of "any military record of that department when ... necessary to correct error or remove an injustice." 10 U.S.C. § 1552(a). Neal v. Secretary of Navy, supra, 639 F.2d at 1033 n.4. On June 10, 1981 defendant, Pfeiffer, on behalf of the BCNR, informed Lord in the following letter that his application was denied.

 
Dear Mr. Lord:
 
The Board for Correction of Naval Records considered your application for corrective action in Executive Session on 2 June 1981. This review was conducted in accordance with current procedures applicable to this Board. Documentary material considered by the Board included your application, along with all material submitted in support thereof, your naval records, and pertinent statutes, regulations, and policies. Also considered was an Examiner's Case Summary, a copy of which is enclosed.
 
After due deliberation the Board determined that the undesirable discharge by reason of misconduct due to civil conviction which you received on 12 August 1975 was appropriate and equitable under laws and regulations in effect at that time. The Board found that you enlisted in the U.S. Marine Corps on 28 December 1973 at age 17.
 
Prior to the civil offense which led to your administrative discharge, you were awarded nonjudicial punishment on one occasion. Your offenses were failure to be at appointed place of duty and disobedience of orders.
 
You were convicted of arson, and sentenced to five to seven years imprisonment. An undesirable discharge is authorized whenever the sentence is for longer than one year.
 
In its review of your application the Board carefully weighed all potentially mitigating factors, such as your allegation of recruiter connivance, service record, youth and immaturity, and processing of the discharge, against the serious nature of your civil offense. It concluded that these factors ...

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