United States District Court, D. Massachusetts
ORDER ON DEFENDANTS’ MOTION TO DISMISS (DOC. NO. 7)
Leo T. Sorokin United States District Judge
Plaintiff Paul Redmond (“Redmond”) brings this action against the Board of Correction of Naval Records (the “Board”) and Ray Mabus, in his official capacity as Secretary of the United States Navy (collectively, the “Defendants”), seeking to upgrade his discharge from the Marine Corps. Doc. No. 1. The Defendants have moved to dismiss the complaint as time-barred under 28 U.S.C. § 2401(a) or Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Doc. No. 8. For the reasons set forth below, the Court ALLOWS the motion.
Redmond received a “General Under Honorable Conditions” discharge from the Marine Corps on August 4, 1975, after completing six years of service in the Reserves. Doc. No. 1 ¶¶ 1-2. Redmond seeks to upgrade to an “Honorable Discharge, ” focusing on certain duty and conduct ratings in his service record. Doc. Nos. 1 ¶¶ 12, 23; 1-3 at 5. Redmond’s service record shows that, on May 4, 1974, he received grades of 2.5, 2.0 and 2.0 for general military subjects, duty and conduct, respectively. Doc. No 1-3 at 5. When these low marks were averaged with the other marks he received during his six-year enlistment, they depressed his final averages for duty and conduct to below 4.0, the minimum average required to receive an honorable discharge. Doc. No. 1 ¶¶ 13, 17. Redmond claims that the low marks should not have been considered because they appear out of chronological order. Id. ¶ 12. The low marks, dated May 4, appear after the marks from July 27 and August 11. Doc. Nos. 1 ¶ 12; 1-3 at 4-5. Redmond further claims that the low marks were improperly entered by the signatory on his record, “KJMurphy, ” who inserted the marks for a time period for which he was not in command. Doc. Nos. 1 ¶¶ 12, 21-22; 1-3 at 5.
On or about December 27, 2001, Redmond submitted an application to correct his military record. Doc. Nos. 8-1; 8-2. Counsel for Redmond indicated that he intended to forward a statement from Colonel Edward Murphy (“Col. Murphy”), a thirty-year Marine Corps veteran, who reviewed Redmond’s record and “found grades given to Mr. Redmond to be inconsistent with his other marks.” Doc. No. 8-2 at 1. Counsel represented that Col. Murphy would further state that “he was aware of irregularities in the administration department at Mr. Redmond’s command” and that “Mr. Redmond’s one infraction did not warrant a general discharge.” Id.
On July 18, 2002, the Board denied Redmond’s application. Doc. No. 8-3. The Board noted that Redmond enlisted on August 5, 1969, was disciplined on May 5, 1974 for unauthorized absences from drill, and was counseled regarding unsatisfactory conduct and performance on May 18, 1975. Id. at 1. Further, the Board indicated that Redmond’s average marks for conduct and proficiency were 3.9, and a minimum mark of 4.0 was required to receive an honorable discharge. Id. at 1-2. The Board informed Redmond that he was entitled to seek a reconsideration if he submitted “new and material evidence.” Id. at 2.
On July 8, 2011, present counsel, on behalf of Redmond, again sought an upgrade in Redmond’s discharge status. Doc. No. 1-2 at 1-2. Counsel stated that “the significance of the sequencing of the marks was not revealed to me until on or about” June 1, 2011 by Col. Murphy. Id. at 1. The letter explained that the low marks on Redmond’s record appear chronologically out of order, i.e., after marks with dates after the date of the disputed marks, May 4, 1974. Id. Counsel argued that the out-of-sequence marks caused Redmond’s average to fall below 4.0 just as his final average was about to computed prior to his discharge, leaving him no notice or opportunity to rectify the situation. Id. at 2.
Counsel attached a letter from Col. Murphy in which Col. Murphy stated that his purpose was “to provide a recommendation to the board” that Redmond receive an upgrade to an Honorable Discharge. Doc. No. 1-2 at 5. Col. Murphy informed the Board that he had reviewed Redmond’s service record and calculated his averages in proficiency and conduct to be 4.1 and 4.05, respectively, once the lower marks from May 4, 1974 were excluded. Id. Col. Murphy explained he did not include the low marks because they were “noticeably out of sequence.” Id.
Despite some allegations to the contrary, the records submitted by Redmond are unclear as to whether Col. Murphy was Redmond’s commander at the time the out-of-sequence marks were entered into Redmond’s service record. Counsel’s 2011 letter to the Board stated that Col. Murphy “was not [Redmond’s] Commander when the out-of-sequence mark was inputted.” Id. at 1. But the letter goes on to state that “KJMurphy” was not in command when he entered marks in Redmond’s record and that “[t]he marks which caused the average to fall . . . were during the time period that Col. Edward Murphy was in command.” Id. at 2. Col. Murphy’s letter is silent on this point.
The Executive Director of the Board responded on August 2, 2011 with his conclusion that “reconsideration is not appropriate at this time.” Doc. No. 1-5. The letter noted that “[a]lthough, at least some of the evidence you have submitted is new, it is not material. In other words, even if this evidence was presented to the Board, the decision would inevitably be the same.” Id.
On November 16, 2015, Redmond sued the Defendants, seeking an order directing that his discharge be upgraded to Honroable. Doc. No. 1 at 4. On January 22, 2016, the Defendants moved to dismiss, Doc. No. 7, which Redmond opposes, Doc. No. 9.
III. LEGAL STANDARD
A complaint will withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6) only if it contains sufficient factual matter, accepted as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court must “take all factual allegations as true and . . . draw all reasonable inferences in favor of the plaintiff.” Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 96 (1st Cir. 2007). The complaint need not contain “detailed factual allegations, ” but it must set forth “more than labels and conclusions, . . . and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A plaintiff fails to state a claim when he does not proffer “factual allegations, either direct or inferential, ...