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WALTON v. LEHMAN

May 19, 1983

LIEUTENANT COMMANDER JOSEPH LEO WALTON
v.
HON. JOHN LEHMAN, SECRETARY OF THE NAVY



The opinion of the court was delivered by: GREEN

 GREEN, J.

 The instant matter arises from the honorable discharge of plaintiff, Lt. Commander Joseph Walton, from the United States Navy Supply Corps. Plaintiff seeks reinstatement on the bases that the proceedings which led to his discharge violated procedural due process, unlawfully discriminated against regular officers of the Navy, and contravened federal statutory guidelines. Defendant contends plaintiff's allegations are groundless as a matter of law.

 Now before the court are cross motions for summary judgment. Plaintiff states that the entry of summary judgment against defendant is appropriate based on the administrative record and the contention of defendant that all pertinent facts are contained in the record. As in other cases involving review of informal agency decisions, the court's decision must be based solely upon the administrative record. Camp v. Pitts, 411 U.S. 138, 36 L. Ed. 2d 106, 93 S. Ct. 1241 (1973). Since the material facts contained in the administrative record are not disputed, the disposition of this case on motions for summary judgment is appropriate. *fn1" Having considered the parties' motions, their memoranda of law, and the administrative record, I conclude that the procedure which preceded plaintiff's discharge did not comply with federal statutory requirements. Accordingly, I will grant summary judgment for plaintiff.

  The pertinent, undisputed facts are reflected in the administrative record. Plaintiff, who served in the Navy continuously from March 11, 1963 until April 9, 1982, has a history of alcohol abuse. *fn2" On April 23, 1981, the Fiscal Year 1982 Supply Corps Commander Selection Board ("Selection Board") notified the Secretary of the Navy ("Secretary") that plaintiff had not satisfactorily performed his duties at his present grade. Consequently, in a report rendered pursuant to 10 U.S.C. § 6384, *fn3" the Selection Board recommended that plaintiff be honorably discharged from the Navy. On April 28, 1981, the Selection Board sent the report, including the history of plaintiff's alcohol abuse, to the Judge Advocate General ("JAG") for review and recommendation. Prior to June 30, 1981, the JAG recommended that plaintiff be discharged on August 30, 1981 if the Secretary accepted the findings of the Selection Board. The JAG also agreed with the recommendation of the Deputy Chief of Naval Personnel ("Deputy Chief") that plaintiff be informed of the Selection Board's findings and be invited to submit a personal statement and any other pertinent information. Neither naval regulations nor federal statutes required that plaintiff be notified or given the opportunity to make a statement at this stage of the proceedings. Nevertheless, plaintiff was notified of the findings of the Selection Board on July 17, 1981.

 On July 29, 1981, plaintiff submitted a personal statement acknowledging that his performance had declined and requesting "one last opportunity to receive treatment at the National Naval Medical Center and to prove that I can stay sober." On August 6, 1981, after reviewing all of the aforementioned documents, the Deputy Chief recommended that plaintiff be discharged effective August 30, 1981. The Chief of Naval Personnel concurred. The Secretary approved the recommendation, on August 14, 1981, and orders to discharge plaintiff were given on August 18, 1981.

 On August 31, 1981, plaintiff filed suit, requesting the court either to enjoin his discharge from the Navy or to order the Navy to give plaintiff a compensable medical discharge. *fn4" On August 31, 1981 this court temporarily restrained defendant from discharging plaintiff from the Navy. After hearing, a preliminary injunction was issued on September 11, 1981; on defendant's unopposed motion, it was dissolved on March 17, 1982. Plaintiff was discharged from the Navy on April 9, 1982. Shortly thereafter, the case was set for trial, but on June 24, 1982, it was stayed, pending the exhaustion of administrative remedies.

 Plaintiff then petitioned the Board for Correction of Naval Records ("BCNR") for reinstatement on the following grounds:

 
2. Prior to the discharge, the procedures prescribed by the DOPMA were not followed. See id. §§ 1182-1183.
 
3. Because his discharge certificate was not ready for delivery on April 9, 1982, plaintiff's discharge was prohibited by 10 U.S.C.A. § 1168(a).
 
4. The discharge procedures set forth in 10 U.S.C.A. § 6384 violated due process because notice and a hearing were not provided and because the procedures discriminate against regular Naval officers as compared to reserve Naval officers, Army officers, Air Force officers, and persons enlisted in all branches of the armed forces.
 
5. During the proceedings in 1981, the JAG did not inform the Secretary of the Navy's de facto policy of providing hearings to regular officers prior to discharge. Therefore, the Secretary did not give plaintiff a hearing.
 
6. After June 30, 1981, the Secretary no longer had power to discharge plaintiff pursuant ...

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