ORDER

PATRICIA FAWSETT, District Judge

This case comes before the Court on the following:

1. The Report and Recommendation of the United States Magistrate Judge on Plaintiff Miquel A. Cotrich's Application to Proceed In Forma Pauperis. (Doc. No. 8, filed Dec. 6, 2006); and

2. Plaintiff Miquel A. Cotrich's Filing a Motion in this Case. (Doc. No. 9, filed Dec. 11, 2006).

Background

1.) Cotrich's official military file was destroyed so the VA created a new "C file" and someone signed the records on behalf of Cotrich. Cotrich contends he was not given the opportunity to review the file, that the file contains inaccurate information and that his signature was falsified; 2.) Cotrich's DD-214 was altered to reflect an inaccurate date of separation from service, which resulted in the denial of benefits; 3.) the Board's refusal to consider his evidence regarding his correct separation date resulted in the continued denial of benefits; 4.) the continued denial of benefits resulted in financial hardship and impairment of his credit rating; 5.) the VA's declaration that Cotrich was dead was identity theft and contributed to his denial of benefits; 6.) the VA declared him fit for service prior to entering the United States Marine Corp, which proves his disability was related to his service.

(Doc. No. 8, p. 2 citing Doc. No. 1, pp. 5-6). The Magistrate Judge conducted a thorough analysis of the law regarding veterans benefits and the correction of military records and issued a Report and Recommendation that Plaintiff's claims be dismissed without prejudice because (1) the Court does not have jurisdiction to adjudicate issues concerning the denial of veterans benefits under 38 U.S.C. § 511; (2) Plaintiff's claim is barred by res judicata because the Court previously adjudicated the Plaintiff's claim for veterans benefits; (3) Plaintiff has sued the wrong party in his claim regarding the Board's failure to correct his records because The Board of Corrections of Naval Records is supervised by the Secretary of the Navy, not the Secretary of Veterans Affairs; and (4) the Complaint does not indicate Plaintiff has exhausted his administrative remedies and is untimely. (Doc. No. 8, pp. 2-3, 9-13).

Standard of Review

Pursuant to 28 U.S.C. § 1915, the District Courts are required to conduct an initial screening of civil complaints filed in forma pauperis. The District Court is authorized to "dismiss the case if the court determines that . . . the action or appeal is (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

When a motion is delegated to a Magistrate Judge under 28 U.S.C. § 636(b), the Magistrate Judge is required to submit a report to the District Court and parties. If a party files written objections to the Magistrate Judge's Report and Recommendation, the District Court reviews the portions of the report to which objections are made de novo. Id. The district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

Analysis

While Plaintiff's third, fourth and sixth allegations seek to directly challenge the denial of his benefits, ( See Doc. No. 1, pp. 5-6), Plaintiff's first and second claims are essentially allegations that the VA fraudulently altered his military records, and because of the inaccuracies on his records, he was denied benefits. (Doc. No. 1, p. 5, ¶¶ 1, 2). Merely re-characterizing a challenge to a benefits decision as a fraud claim does not create subject matter jurisdiction in the District Court. Consequently, this Court is without jurisdiction to review these claims.

The District Court does have jurisdiction to review the Board of Corrections of Naval Record's ("BCNR") decision not to correct service records if the Board's decision is arbitrary, capricious, not supported by substantial evidence, or legally flawed. Evans v. Marsh, 835 F.2d 609, 612 (5th Cir. 1988); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir. 1974). In order to seek judicial review, a veteran must exhaust his administrative remedies. Hodges, 499 F.2d at 421-22. A veteran seeking to obtain correction of naval records must follow the procedures set out in 10 U.S.C. § 1558 and 32 C.F.R. § 723.1 et. seq. Although District Court review is appropriate in certain circumstances, the facts of the Complaint indicate that the Court does not have such subject matter jurisdiction in the instant case.

Foremost, Plaintiff has sued the incorrect party. The BCNR is not a party to this case because it is not subject to the control of the Secretary of Veterans Affairs. See 10 U.S.C. § 1552(a)(1); Evans, 835 F.2d at 612 (discussing the differences in the tasks performed by the VA and the boards of corrections). Even if the BCNR was a party to the case, the facts of the Complaint do not indicate that Plaintiff has exhausted his administrative remedies. ( See Doc. No. 1).

Furthermore, even if the BCNR was a named party and Plaintiff had exhausted all of his administrative remedies, the allegations in the Complaint indicate that Plaintiff's case is most likely untimely filed. While a veteran may bring a claim to correct his military records, he must file a request for the correction within three years of the date he discovers the error or injustice. 10 U.S.C. § 1552(b). The board of corrections may extend the three year time limit when it is in the "interests of justice." Id. However, the party seeking review must assert facts showing it is "in the interests of justice" to waive the time requirements. Evans, 835 F.2d at 613. A veteran requesting District Court review of the Board's decision must do so within six years of that decision. 28 U.S.C. § 2401(a).

Plaintiff alleges his C-file was destroyed and fraudulently re-created in the 1980s. (Doc. No. 9, p. 2, ¶ 7). Plaintiff alleges that he learned of the inaccuracies in his record in a proceeding before the undersigned. (Doc. No. 1, p. 3, p. 5, ¶ 2; Doc. No. 9, p. 2, ¶ 6). Plaintiff has been involved in three cases before the undersigned, but the only suit involving the VA occurred in 1994. See Cotrich v. Ivers, 6:94-cv-00287-PCF, filed Mar. 10, 1994. It is evident that Plaintiff is referring to the Ivers case because he includes a portion of the docket sheet in his Complaint. (Doc. No. 1-2, p. 5). Under 28 U.S.C. § 1915, the Court may dismiss a Plaintiff's allegations as frivolous if it is clear from the face of the complaint that an affirmative defense would bar the action. Because Plaintiff's allegation is in effect that he discovered the errors over twelve years ago, the Complaint and its attachments indicate that his claim is barred by the statute of limitations.

In his fifth allegation, Plaintiff alleges that the VA committed identity theft in violation of his rights under United States Constitution because the VA informed his wife he was dead. Plaintiff's allegations of identity theft do not indicate which of his constitutional rights were violated. The Court is unaware of any Constitutional provision, or case law construing the Federal Constitution, that recognizes a claim for identity theft. Accordingly Plaintiff has failed to state a claim for identity theft.

The Magistrate Judge took judicial notice of the Plaintiff's previous cases and included a section in the Report and Recommendation discussing the Ivers case, ultimately reasoning that res judicata was an alternative ground on which to dismiss Plaintiff's claims for benefits. ( See Doc. No. 8, pp. 2-4, 12). Federal Rule of Evidence 201 allows courts to take judicial notice of certain facts. While the Court "may take notice of another court's order only for the limited purpose of recognizing the judicial act that the order represents or the subject matter of the litigation," the Court may not take judicial notice of the documents to establish the truth of the matters asserted therein. United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (citations omitted). In his Complaint, Plaintiff referenced the Ivers case. ( See Doc. No. 1, pp. 3, 5; Doc. No. 1-2, p. 5). Therefore, the Court may take judicial notice of the existence of Ivers, but not the contents of the Plaintiff's pleadings or any motions filed in such case. Accordingly, the Court declines to adopt the Magistrate Judge's conclusion at this juncture in the proceedings that res judicata applies.

Conclusion

DONE and ORDERED in Chambers in Orlando, Florida.