United States District Court, D. Nevada
DALE A. THOMPSON, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants
Dale A. Thompson, Plaintiff, Pro se, Las Vegas, NV.
For United States of America, John M. McHugh, Secretary of the Army, Army Board of Corrections for Military Records, Defendants: Patrick A Rose, LEAD ATTORNEY, U.S. Attorney's Office, Las Vegas, NV.
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.
Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 21)
Plaintiff's Motion for Dispute of Defendant's Administrative Record (ECF No. 26)
Plaintiff's Motion for Leave to File Supplement (ECF No. 28) to Response to Motion to Dismiss
Before the Court is a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment filed by Defendants United States of America, John M. McHugh, and the Army Board for Correction of Military Records (ABCMR) (ECF No. 21) and a Motion for Dispute of Defendants' Administrative Record filed by Plaintiff Dale A. Thompson (ECF No. 26). The Court has reviewed the parties' filings and heard oral argument. For the reasons stated below, Defendants' motion to dismiss is granted in part and denied in part. Thompson's motion disputing the administrative record is denied without prejudice.
The following factual background is taken from Plaintiff's Complaint filed on January 7, 2013.
Plaintiff Dale A. Thompson is a veteran who enlisted in the U.S. Army in August of 1969 at the age of 17. Compl. at 1, 3. He completed basic training and advanced individual training, obtaining qualifications to become a Stock Control and Accounting Specialist. Id. at 1. On December 11, 1969, Thompson states that he suffered permanent injuries to his dominant left hand as a result of being assaulted by other soldiers at Fort Lee, Virginia. Id. at 2-3. Thompson was then assigned to Fort Carson, Colorado, where he was subsequently discharged on March 25, 1970 after Thompson's commander determined that he " could not or would not perform his military duties." Id. at 3. Thompson was given a sealed letter by his commander to give to an Army lawyer as well as an Army psychiatrist. Id. at 4. When he met with the lawyer, he was advised that his discharge would affect his employment and benefits processed through the Department of Veterans Affairs (VA). Id. Thompson was then out-processed, ordered to sign away any VA claims, and given a General Discharge with the reason of " immaturity-personality disorder." Id.
On June 27, 2007, Thompson filed a petition with the ABCMR, a statutory civilian review board with the authority to correct errors in official military personnel records, to correct his records to reflect that he was discharged for medical reasons. Id.; see also id., Ex. B. On January 8, 2008, the ABCMR granted partial relief to Thompson, ordering that his discharge be upgraded to fully honorable but denying his request to remove " unsuitability -- character and behavioral disorders" as the stated reason for discharge on his certificate of release on the grounds that there was insufficient evidence to grant such request. Id. at 5; id., Ex. B.
On September 14, 2009, more than one year after the ABCMR's decision, Thompson received documentation from the VA which he had not seen before but had been attempting to obtain since sometime in 1980. Id. at 5. Thompson obtained these documents via a Freedom of Information Act request and subsequent court order. Id. The documents stated that Thompson had " civil convictions for burglary as well as character disorders" and were used as evidence by the VA in its prior decisions to deny benefits to Thompson. Id. On January 22, 2012, Thompson requested that the ABCMR reconsider its 2008 decision, and submitted documents received from the VA as well as other evidence that he claims proved the falsity of the VA documents' allegations. Id. at 6. The ABCMR rejected Thompson's request on September 21, 2010, ...