C. Procedural History
This cause first came before District Judge Norma Holloway Johnson on a motion for a preliminary injunction which she denied on November 11, 1993. Thereafter the government moved to dismiss the case on the grounds that Housman had not exhausted his administrative remedies. Judge Johnson denied that motion on May 27, 1994.
The case was transferred to District Judge Ricardo M. Urbina on July 1, 1994. On November 3, 1994 Judge Urbina referred the matter to this Court for resolution of discovery motions and for recommendations on dispositive motions. On January 3, 1995, Judge Urbina stayed discovery and delegated to the undersigned the authority to lift the stay if necessary to decide the defendant's summary judgment motion. The Court has determined that further discovery is not necessary in this case.
To further clarify the matters at issue, on February 1, 1995 the Court ordered the parties to more fully brief the meaning of the term "fully qualified" and the defendant to submit for in camera review "any and all documents pertaining to the deliberative process and findings of the [continuation] board." Thereafter the government released to the plaintiff all documents submitted for in camera review.
Upon inspection of those documents, the Court realized that Housman possibly lacked standing to contest the defendant's decision to separate him from active duty. It appeared that by virtue of Army regulations, evaluations in Housman's record ipso facto disqualified him from further service in the AGR. If, at the time this suit commenced, Housman was ineligible for further service for reasons entirely apart from the those raised in this case, it would appear that he suffered no cognizable legal injury and thus would lack standing to contest the continuation board's decision. Accordingly, on May 10, 1995 the Court ordered the plaintiff to show cause why summary judgment should not be granted for the defendant on the grounds that the plaintiff was not qualified to be continued in the Army.
In response to the show cause order, the plaintiff argued that he was indeed eligible to be continued in the AGR. In its response in opposition, the government failed to respond to the substance of the plaintiff's arguments and appeared to misunderstand the direction of the Court's inquiry. Because the government chose not to join the issue (instead opting to repeat its earlier arguments contained in its motions for summary judgment and to dismiss) and because the plaintiff's assertions are colorable, the Court shall assume for purposes of deciding the instant motion for summary judgment that indeed Housman is technically qualified to be continued in the AGR.
Conclusions of Law
A. Standard of Review
The Court's deference to the military is at its highest "when the military, pursuant to its own regulations, effects personnel changes through the promotion or discharge process." Dilley v. Alexander, 195 U.S. App. D.C. 332, 603 F.2d 914, 920 (D.C. Cir. 1979). Absent a constitutional challenge by the plaintiff, when reviewing military decisions, the Court's inquiry is whether the military agency's action "conforms to the law, or is instead arbitrary, capricious or contrary to the statutes and regulations governing that agency." Blevins v. Orr, 232 U.S. App. D.C. 258, 721 F.2d 1419, 1421 (D.C. Cir. 1983) (citation omitted).
Accordingly, the undersigned now reviews the Army's actions to determine if it acted arbitrarily and capriciously toward Housman. In doing so, the Court is mindful that summary judgment "should be granted only where there are no genuine issues of material fact, and all inferences must be viewed in a light most favorable to the non-moving party." Tao v. Freeh, 307 U.S. App. D.C. 185, 27 F.3d 635, 638 (D.C. Cir. 1994). As the non-moving party, the plaintiff's burden is "to set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
B. Were Evaluations Improperly Viewed By the Board?
Housman claims that the continuation board should not have seen his negative, seventh active-duty OER (spanning the period of January 2, 1989 to January 1, 1990) because this report lacked credibility and "is under appeal." Compl. at PP 36-37. Of course, what Housman omits in the text of his complaint (but not in his exhibits) is that he did not appeal this OER until September 1993, nine months after the board had decided to separate him. Compl. (Exh. 6); Def. Exh. B.
Since Army Regulation 623-105, Chapter 9 places the burden on the soldier to bring to the Army's attention any error in his record, the Court finds that the Army did not err in allowing this OER, which was not under appeal at the time, to be considered by the continuation board. Def.'s Exh. AA; 2d Decl. of Frank J. Korenchan (Def.'s Exh. T).
Apparently, Housman had no OERs under appeal when the board met. Decl. of Allen M. Gildersleeve at 2 (Def.'s Exh. K to Def.'s Mot. to Dismiss). Nevertheless, even if hypothetically the board had seen an OER under appeal, it would not constitute error. See Richard C. Jelen letter (May 11, 1993) (Def.'s Exh. J to Def.'s Mot. to Dismiss); 2d Decl. of Frank J. Korenchan at P 5 (Def.'s Exh. T).
C. Was Housman "Fully Qualified?"'
The continuation board was charged with the responsibility to select all "fully qualified" officers. MOI at 2 (Def.'s Exh. I). Housman believes he was fully qualified and that the board, therefore, erred by not selecting him. The defendant proffers that the term "fully qualified" as used in this case is defined in AR 135-155, paragraph 3-11(a). It provides, in part:
Fully Qualified. To be fully qualified for selection, an officer must be--