United States District Court, M.D. Tennessee, Nashville Division
PAUL E. GEOGEGAN, Plaintiff,
SECRETARY OF THE ARMY, Defendant.
REPORT AND RECOMMENDATION
E. CLIFTON KNOWLES, Magistrate Judge.
This matter is before the Court upon Defendant's "Motion to Dismiss Plaintiff's Complaint for Lack of Subject Matter Jurisdiction or, Alternatively, for Failure to State a Claim, " filed pursuant to Fed.R.Civ.P. 12(b)(1) and/or 12(b)(6). Docket No. 11. Defendant has contemporaneously filed a supporting Memorandum of Law, asserting that Plaintiff's claim is time-barred and also fails to state a claim upon which relief may be granted. Docket No. 12.
Plaintiff has not responded to the instant Motion.
Plaintiff filed this pro se, in forma pauperis action, pursuant to 10 U.S.C. § 1552 (authorizing the Secretary of a military department to correct military records), alleging:
Fraudulent judgment imposed on Paul E. Geohegan 1990 thru 1991 North Atlantic Treaty Organization Gulf war. reduction in rank Sergeant E5(p) down to specialist 4. I had fifteen years service. The charges involve storage of ammunition at company A 327th infantry King faude air field.
Docket No. 1, p. 1.
I Paul E. Geohegan thru Veterans of Forgein [ sic ] wars Mr. Arneson (email@example.com) have sent multipul [ sic ] forms thru appeals boards in Arlington VA. I sent dd149 and VA 21.4138. I sent DD149 to Department of Army review board. Was sent responce [ sic ] from Case management Division chief A.L Champin ABCMR review case AR20140002031 a reconsideration can only be completed thru court of appropriate jurisdiction. I feel the fraudulent judgement took place during our war with the Iraq government 1990 thru 1991. The ammuintion [ sic ] was removed from bunker at air field placed in company area with only myself and another sergeant Ruize I have had no contact with him after 1991. An appeal was conducted in 1990, I ask now additional information be looked into. Ammo was not secured properly, it is a N.A.T.O site N.A.T.O does not identify with any entity smaller than battalion. Only a small amount of ammo was missing, according to N.A.T.O that must be accounted before 327th infantry clears field. I was never nvolved [ sic ] in a search for ammunition. I have a packet of information sent to appeal board and review should the court wish to see it.
Id., p. 2.
Attached to his Complaint, Plaintiff submitted what appear to be copies of the forms he avers he submitted to the Department of Veteran's Affairs, along with the responses he received thereto. See Attachments to Docket No. 1. Those documents indicate that: (1) Plaintiff was separated from the Army on September 10, 1991, with an honorable discharge; (2) Plaintiff applied to the Army Board for Correction of Military Records ("ABCMR") requesting reconsideration of the Army's Article 15, non-judicial punishment of him that took place with regard to missing ammunition in 1990-1991; (3) the Director of ABCMR notified Plaintiff via denial letter on May 5, 2006 of the Board's decision and enclosed the Board's May 2, 2006 decision with the denial letter; (4) on May 9, 2013 (seven years after the denial), Plaintiff filed a request for reconsideration of the May 2, 2006 ABCMR denial; (5) on June 11, 2013, the ABCMR notified Plaintiff that the staff had reviewed his request, determined that it was untimely, and returned it to him without action; (6) Plaintiff thereafter submitted a second request for reconsideration; and (7) on February 26, 2014, the ABCMR Chief notified Plaintiff via denial letter that the staff had reviewed this request for reconsideration, reiterated that it was untimely, and again returned it to him without action. Id.
The May 5, 2006 denial letter referenced above was signed by ABCMR Director Carl W.S. Chun, and stated as follows:
Dear Mr. Geohegan:
I regret to inform you that the Army Board for Correction of Military Records denied your application.
The Board considered your application under procedures established by the Secretary of the Army. I enclose a copy of the Board's Record of Proceedings. This decision explains the ...