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January 3, 1996

MAX BARATZ, Major General U.S. Army, Office of the Chief, Army Reserve, Defendant.

The opinion of the court was delivered by: ATTRIDGE


 This matter has been referred pursuant to 28 U.S.C. § 636(b)(1)(B) for a recommendation for disposition of the defendant's motion for summary judgment [38]. In this case, the plaintiff, William H. Housman, claims that he was unlawfully separated from the Army. His basic contention is that he was fully qualified for continued active duty service and that, as such, the Army had no authority to select him for non-continuation. Compl. at 4, P 19. Housman also claims that the defendant "failed to forward [his] non-continuation to a Department of the Army Active Duty Board, but has instead tried to separate [him] directly." Id. at P 20. The motive behind his separation, the plaintiff alleges, was the Army's desire to surreptitiously conduct a reduction-in-force. See id. at PP 26-31.

 The government, on the other hand, asserts that as a matter of law Housman's separation was proper. The Court finds that Housman's separation was lawful, and accordingly recommends that the motion for summary judgment be granted.

 Finding of Facts

 A. The Active Guard/Reserve Program

 The plaintiff served in the United States Army Reserve Active Guard/Reserve program ("AGR" or "AGR program") as a commissioned officer from September 1985 until his separation therefrom in September 1993. As an officer in the AGR program, Housman was a reservist who served on active duty. *fn1" In contrast to their Regular Army counterparts who remain on active duty for indefinite terms, AGR officers must be regularly selected by a continuation board to remain on active duty.

 The initial AGR tour is three years in duration. Army Regulation ("AR") 135-18 at P 2-9 (June 1, 1990) (Def.'s Exh. Y). If after the initial tour a continuation board should grant an officer a subsequent tour, the officer's tour of duty becomes technically indefinite. Id. Despite the characterization of the duration of the subsequent tour, in actuality, continuation boards convene every five years to determine whether an AGR officer may remain on active duty. Id. at P 4-11a.

 The purpose of the AGR program is to provide highly qualified officer and enlisted personnel to support the Army National Guard and Army Reserves. Id. at P 1-5. To objectively select the best officers to remain in the AGR, the continuation board employs a process similar to that of the promotion board described in Doyle v. United States, 220 Ct. Cl. 285, 599 F.2d 984, 990 (D.C. Cir. 1979) (citations omitted)

The regulations require that the boards recommend for promotion ... those officers determined to be "best qualified" for promotion, i.e., those to whom the selection board has given the highest rating.

 Unlike the promotion board process described in Doyle, however, Housman's AGR continuation board was instructed to select all "fully qualified" personnel, as opposed to accepting only the "best qualified." Memo. of Instruction to January 1993 AGR Continuation Board at 2 (Def.'s Exh. I) (hereinafter, "MOI"). Under the "fully qualified" system, a situation might arise whereby all officers considered by a continuation board might be determined fully qualified and thus recommended for continuation on active duty. *fn2"

 The members of the continuation board were instructed that the Officer Evaluation Report ("OER") is the most important document in an officer's file to determine if an officer shall be selected to continue in the AGR program. MOI, Encl. 2 at iii. An OER contains evaluations made by the officer's "rater" (direct supervisor) and "senior rater" (a rater more senior to, and in a position of greater authority than, the rater). AR 623-105 (March 31, 1992) (Def.'s Exh. AA).

 The Memorandum of Instruction given to the board instructed that, of the several narrative ratings in an OER, the greatest weight is placed on the senior rater's evaluation. "The narrative, historically a key element on all evaluation reports, is particularly important in the senior rater's portion; it lends meaning and interpretation to other elements of the senior rater's evaluation, assesses the rated officer's potential for promotion, schooling or command, and may address specific aspects of performance." MOI, Encl. 2 at iv. Moreover, only the senior rater as a matter of course objectively compares the officers he or she senior-rates. After the senior rater numerically ranks a rated officer, the Department of the Army tallies how many officers have been rated higher, lower, and the same as the rated officer. AR 623-105 at P 4-16(d)(5)(A) (Mar. 31, 1992) (Def.'s Exh. AA) In light of this fact, the board was also told that "the senior rater evaluation is an important aspect of the OER because of the emphasis on objectivity placed thereon by the Army. ... One of the most important responsibilities of senior raters is that of providing credible rating information which can be used in the selection of future Army leadership." MOI, Encl. 2 at v.

 B. Housman's Performance Ratings

 During his eight years on active duty in the AGR program, Housman received four poor evaluations. In his first OER, Housman was ranked last out of the four officers most recently rated by Housman's senior rater. The senior rater wrote, in part, that "[Housman's] pursuit of a graduate degree although commendable, has placed demands on his available time which has effected his performance to such an extent that other personnel have been detailed to accomplish certain of his duties." Def. Exh. X (OER from Sept. 3, 1985 to Sept. 2, 1986). Although the defendant disputes the characterization of this OER as negative, (Pl.'s Mem. Show Cause at 4), certainly a continuation board would be permitted to draw a negative inference from the senior rater's remark.

 His second OER was much worse--he was fired from his job, or in Army parlance, "relieved for cause." Although he later succeeded on administrative appeal in having the senior rater portion deleted, the negative comments of the rater remained in his record and he was not reinstated in his old job. The following comments are representative of rater's evaluation which remained in Housman's performance record: "CPT Housman does not read, understand, or follow [Army Regulations] or specific guidance, relying instead on his own brand of logic." "During this rating period I continued to relieve him of responsibility and authority with the hope that he would be able to complete his remaining duties as a Mobilization Officer, Physical Security Officer, and Training Officer in a satisfactory manner." Id. (OER from Sept. 3, 1986 to Jan. 28, 1987).

 Although his third OER rated him very highly (OER from Jan. 29, 1987 to July 12, 1987), a continuation board which convened in January 1988 apparently did not review that OER and did not select him for continuation in the program. Def.'s Exh. DD. Housman appealed the board's decision on the grounds that the second OER was under appeal, and that the very favorable, third OER had been improperly withheld from the board. Id. His appeal was granted, and in July 1988 another continuation board met which recommended that he be granted a follow-on AGR tour on August 25, 1988. Def.'s Exhs. EE and FF. Apparently, this board also reviewed his fourth AGR OER which also was very favorable. Def. Exh. X (OER from July 13, 1987 to June 6, 1988).

 His next two OERs--spanning the seven month period from June 7, 1988 to January 1, 1989--again rated him very highly. Id. This spell did not last, however. In his next (seventh) OER, his senior rater ranked him the lowest of 37 officers rated. Id. (OER from Jan. 2, 1989 to Jan. 1, 1990). Housman did not appeal this OER until September 1993, long after the board had decided his future with the Army. Def. Exh. B. The appeal was ultimately rejected on December 8, 1993. Def.'s Exh. C.

 Housman rebounded on his eighth evaluation, tying with seven other officers as the best of 61 officers rated by the senior rater. Def. Exh. X (OER from Jan 2, 1990 to Sept. 30, 1990). His ninth OER was not unfavorable. Id. (OER from Oct. 1, 1990 to May 27, 1991). The board did not review his tenth and last OER signed on November 22, 1992, which relieved him for cause from his position as a training and operations officer. Def. Exh. A (OER from Feb. 17 to Oct. 26, 1992). This OER was not part of his official file when the January 1993 board convened. Decl. of Allen M. Gildersleeve at 2 (Def.'s Exh. K to Def.'s Mot. to Dismiss).

 Thus, the record shows that the board saw nine active duty OERs received in an six year period, three of which were unfavorable. While the board also reviewed a number of OERs for his service in the reserves (not active duty) from September 26, 1980 to February 3, 1985 which appeared to find his performance satisfactory, the board was instructed to consider the "length of time covered by the report," "the scope and degree of responsibility as outlined in the duty description," and "trends in professional competence." MOI, Encl. 2 at iv. These instructions could have led board members to conclude that Housman's more recent active duty OERs should receive greater emphasis than his older OERs which rated him for part-time reserve duty.

 While the reasons for the January 1993 board's decision not to continue Housman in the AGR program are unknown, it determined that Housman should not be continued on active duty. On April 23, 1993, Housman requested reconsideration of the board's recommendation. 3d Decl. of David H. Toole at 1 (Def.'s Exh. U). In response to his request, the Army determined that the plaintiff had not "presented sufficient evidence to show that this record contained a 'material error' so as to cause the board to recommend his noncontinuation." Id. at 1-2.

 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 ...

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