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April 14, 1994

RODNEY L. WALKER, Plaintiff,
JOHN W. SHANNON, Acting Secretary of the Army, Defendant.

The opinion of the court was delivered by: STANLEY SPORKIN

 This matter comes before the Court on Defendant's Motion to Dismiss or in the Alternative for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment. Plaintiff has sued in this Court under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., for review of a decision by the Army Board for the Correction of Military Records ("ABCMR").

 Plaintiff Rodney Walker is a former commissioned officer in the United States Army Reserve, who was involuntarily separated from the Army, via honorable discharge, on August 17, 1984. According to Army calculations, at the time of his separation, Walker was only six days of army service away from being permitted to stay in the army to complete his 20 years. Walker claims his retirement from the Army was precipitated by an evaluation in which the rating officer recommended that he not be promoted because the rating officer believed he exceeded the Army's weight limit for his height. Plaintiff disputes the Army's action in separating him from the service and brings this action to have it reversed. Specifically, Walker alleges that the decision of the ABCMR not to delete the negative evaluation from his record, and not to modify this adverse personnel action, was arbitrary and capricious, an abuse of discretion, and not in accordance with the law. The Court will grant Plaintiff's Cross-Motion and remand this matter to the Secretary.

 The Facts

 For Walker's height of 73 inches, the Army has established a weight limit of 208 pounds. The underlying dispute in part turns on whether Walker was in compliance with this requirement during an active duty training period in 1983.

 Major Walker served as a member of the United States Army on active duty from 1958 to 1961, and as a member of the Reserve from 1961 until 1984. He was commissioned as an officer in the Army Reserve in 1968. In 1981, Major Walker was non-selected for promotion to Lieutenant Colonel by the 1981 Department of the Army Reserve Components Selection Board for being overweight. After a second review of Walker's file by the Selection Board on December 13, 1982, Maj. Walker was recommended for promotion to Lieutenant Colonel and assigned a promotion eligibility date of September 14, 1983. Walker received a letter from the Secretary of the Army, dated July 21, 1983, which informed him of his promotion:

1. By direction of the President, you are promoted as a Reserve commissioned officer of the Army effective on [14 Sep 83] to the grade in the branch shown. This promotion is contingent on your being medically qualified for retention on [14 Sep 83]
* * *
2. No acceptance or oath of office is required. Unless you expressly decline this promotion within 60 days, your promotion will be effective as shown after [14 Sep 83]

 Defendant's Ex. 1 at 57.

 While on the promotion list, but prior to the effective date of his promotion, Mr. Walker performed his annual active duty training (ADT) tour at Fort Riley, Kansas from April 11 until April 22, 1983. Walker admits that at the beginning of the tour he weighed 215 pounds, seven pounds over the stated limit. Defendant's Ex. 1 at 34. Walker maintains that during the ADT period, he lost nine pounds and brought his weight within the limit prescribed by regulation. Id. From this tour, Mr. Walker received an Officer Evaluation Report (OER) prepared on May 20, 1983, which graded his performance. The OER included the comments of a rating officer and a senior rating officer. The OER's comment sections included the following positive evaluation by his rating officer:

Maj Walker accomplished considerable research in the development of a draft Memorandum of Understanding [MOU] in the care and custody of prisoners assigned to the US Army Correctional Activity [USACA] but incarcerated in the Fort Riley Installation Confinement Facility. He addressed areas presently misunderstood, such as provision for prisoner work supervision, and prepared a draft MOU for review and approval by the Provost Marshal and Commander, USACA. Additionally, Major Walker spent numerous hours visiting other provost marshal activities to familiarize with current Army enforcement doctrine. His ADT has been profitable in his professional development, as well as his willingness and ability to impart his considerable civilian expertise in various areas where he worked.

 Defendant's Motion to Dismiss at 50. The senior rating officer also included the following statement:

MAJ Walker is a dedicated officer, who researches and writes well and who voluntarily worked 12-15 hours a day during this ADT. His efforts in formalizing an MOU between USACA and the PM will enhance good interface in future correctional activities. He has lost 85 pounds. He has lost 9 pounds during this ADT. He has excellent potential for USDB and related corrections staff assignments, and he has excellent instructor potential.


 These positive observations were offset by the rater's description of Maj. Walker's substandard appearance and fitness. Part IV of the evaluation, entitled "Professionalism", makes plain the rater's view that Walker exceeded the Army's weight limit. While Walker received a rating of 1 in eleven of fourteen categories (with 1 being the highest degree of professionalism and 5 being the worst), he was found to have less than the highest degree of professionalism in the categories of "Maintains appropriate level of physical fitness", "Sets and enforces high standards", and "Possesses military bearing and appearance". In explaining Walker's mediocre score in these areas, the rater wrote: "MAJ Walker is under a strict weight reduction program including dieting, PT, and prescribed medication. Does not ...

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