Davis's personnel file. Because the fitness report had influenced the decision of the SER Board to select plaintiff for early retirement, the Secretary of the Navy removed plaintiff's name from the early retirement list.
When plaintiff was considered for promotion in January 1994, he was passed over and scheduled to be involuntarily retired from the Navy by August 31, 1995. Commander Davis subsequently learned that one of the officers who sat on his promotion board had also been a member of the SER Board whose recommendation for plaintiff's early retirement had been overturned. In addition, at the time plaintiff's case was before the promotion board, plaintiff's personnel file improperly contained the two negative documents regarding revocation of his SCI access.
Because of the above, Commander Davis appealed his non-selection for promotion to the Board for Correction of Naval Records ("BCNR"). As a result of this appeal, the two letters concerning denial of SCI access were removed from plaintiff's file, and plaintiff's corrected record was to be considered at the next regularly scheduled selection board. Plaintiff was to be considered for promotion to Captain in an "in-zone" status, i.e. as if he had not previously been denied promotion. In recommending this relief, the BCNR noted that the presence at his promotion board of a member of the SER Board who had seen the adverse fitness report was "an injustice of such magnitude as to render the proceedings fundamentally unfair."
Meanwhile, Commander Davis had been transferred to serve under a new superior officer and had received exemplary fitness reports for 1993 and 1994. Although Commander Davis had been ranked in the top one percent and recommended for early promotion in all eleven of plaintiff's relevant fitness reports, he was not promoted. Despite Commander Davis's 35 years of exemplary service, he was involuntarily retired on September 1, 1995, pursuant to 10 U.S.C. § 6383.
Commander Davis submitted a petition for relief to the BCNR, requesting that he be reinstated and that a special selection board be convened to consider him for promotion to Captain. He stated that his prior promotion board was unfair because he was considered in an 'above-zone' status (i.e. as if he had been previously passed-over for promotion), which put him at a disadvantage. Plaintiff maintains that the decision not to restore him to command doomed his chances for promotion by making him no longer competitive with his peers. The BCNR denied plaintiff's petition, and the decision was upheld on January 11, 1996, by the designated representative of the Secretary of the Navy.
In this action, plaintiff alleges that defendants' discriminatory actions and failure to follow applicable Navy regulations constitute a violation of the due process, equal protection and double jeopardy clauses of the Fifth Amendment to the United States Constitution. Commander Davis further asserts that the revocation of his SCI access was arbitrary and capricious and that defendants' failure to correct his service record concerning his medical status and SCI access violates the Privacy Act, 5 U.S.C. § 552a et seq. Plaintiff asks this Court to: (1) order BCNR to correct his service records by removing any reference to his medical status and his SCI access; (2) order that Commander Davis be reinstated to active duty in the Navy or, alternatively, that the Navy convene a Selective Retention Board to consider Commander Davis's case; and (3) order the BCNR to convene a special selection board to consider Commander Davis for promotion.
SUMMARY JUDGMENT STANDARDS
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mere allegations or denials of the adverse party's pleadings are not enough to prevent issuance of summary judgment. The adverse party's response to the summary judgment motion must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Pro. 56(e).
The Supreme Court set forth the governing standards for issuance of summary judgment in Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In Celotex, the Supreme Court recognized the vital need for summary judgment motions to the fair and efficient functioning of the justice system:
Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Fed. Rule Civ. Pro. 1...