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CHARETTE v. WALKER

March 11, 1998

CAROL A. CHARETTE, Plaintiff
v.
THE HONORABLE ROBERT M. WALKER, ACTING SECRETARY OF THE ARMY*, Defendant.



The opinion of the court was delivered by: GREEN

 In 1990 plaintiff Carol A. Charette was a Captain in the United States Army stationed in Germany in command of C Company, 79th Engineer Combat Battalion, 18th Engineer Brigade. In the fall of 1990, plaintiff received an Officer Evaluation Report (OER) that recommended she be relieved of her command for cause. Captain Charette was relieved for cause on November 5, 1990. This suit represents the latest iteration in plaintiff's long quest to have that relief-for-cause OER overturned or expunged from her military personnel records.

 Presently pending are defendant's Motion to Dismiss or in the Alternative for Summary Judgment, plaintiff's Cross-Motion for Summary Judgment, and plaintiff's Motion for Leave to File an Amended Complaint. Upon careful consideration of the entire record in this matter, and for the reasons stated below, plaintiff's Motion for Leave to File an Amended Complaint will be granted; defendant's Motion to Dismiss or in the Alternative for Summary Judgment will be granted in substantial part; plaintiff's Cross-Motion for Summary Judgment will be denied in substantial part; and the Court's decision on one discrete issue shall be held in abeyance pending submission of affidavit(s), declaration(s) or other evidence by defendant on that issue.

 BACKGROUND

 Regulatory Setting

 The Army's Officer Evaluation System is designed to identity "officers who are best qualified for promotion" and to distinguish between those officers "who should be kept on active duty, those who should be retained in grade, and those who should be eliminated" from the Army. Army Regulation (AR) 623-105 § 1-5(a). The Army collects the necessary information on each officer's performance through the Officer Evaluation Reporting System. Id. § 1-6. Under that system, each officer is evaluated by a rater, who is senior to the officer in the chain of command and who is the person most familiar with the officer's day-to-day performance, id. § 3-4, and by a senior rater, who is higher in the chain of command than the rater and who evaluates the officer "from a broad organizational perspective," id. § 3-10.

 Each officer is evaluated annually on DA Form 67-8, the Officer Evaluation Report (OER). *fn1" In addition to administrative data, id. § 4-10, a completed OER contains a performance evaluation of the officer's professionalism, id. § 4-13; the rater's evaluation of the officer's performance and potential, id. § 4-14; and the senior rater's comparison of the officer to other officers of the same rank in the senior rater's command, id. § 4-16. Each participant signs the OER when she *fn2" completes her portion of the form -- for example, the officer signs the report after completing the administrative data section, id. § 4-11(c)(3), the rater and senior rater sign after completing their portions of the form, id. § 4-11(c)(4).

 An OER is also required when an officer is relieved for cause. Id. § 5-18(a). "Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty." Id. An officer fails in her performance of duty when she does not "complete [] assigned tasks in a competent manner and [in] compliance at all time with the accepted professional officer standards" as outlined on the OER form. Id. A completed relief-for-cause OER must be referred to the officer for acknowledgment and comment before it is submitted to Army Headquarters. Id. § 5-28.

 According to Army regulations, OERs are presumed to "be administratively correct," to "have been prepared by the proper rating officials," and to "represent the considered opinion and objective judgment of the rating officials at the time of preparation." Id. § 9-2(a) (the "presumptions of regularity"). However, if the officer believes that the OER is substantively incorrect because it is based on "bias, prejudice, inaccuracy or unjust rating," id. § 9-2(i), she may appeal to an Officer Special Review Board (OSRB). Such an appeal must be filed within five years of the OER's completion date, id. § 9-3(b), and "must be supported by substantiating evidence." Id. § 9-2(f). The burden of proof on appeal rests with the officer to show by clear and convincing evidence *fn3" that the presumptions of regularity described above should not apply and that "action is warranted to correct a material error, inaccuracy, or injustice." Id. § 9-7(a). Evidence of a personality conflict between the officer and her rater or senior rater "does not constitute grounds for relief" unless the officer can show "conclusively that the conflict resulted in an inaccurate or unjust evaluation." Id. § 9-9(c)(2).

 Proceedings before the OSRB are administrative and non-adversarial; the officer and her counsel are not authorized to appear before the Board. Id. § 9-8(b). The OSRB is not bound by the Federal Rules of Evidence, but keeps "within the reasonable bounds of evidence that is competent, material, and relevant." Id. On its own initiative, the OSRB "may obtain more information from the appellant, the rating officials, persons in the chain of command, or anyone thought to have firsthand knowledge of the case." Id.

 An appeal may be approved in whole or in part, or may be denied, depending on the merits of the case, but the OSRB will not usually take action that would worsen an appealed OER. Id. § 9-5(c). If the appeal is denied, the officer may submit a new appeal to the OSRB supported by new or additional evidence or the officer may appeal the OSRB's decision to the Army Board for Correction of Military Records (ABCMR). The Secretary of the Army, acting through the ABCMR, "may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1). It is the officer's responsibility to present the ABCMR with sufficient relevant evidence "to demonstrate the existence of probable material error or injustice." 32 C.F.R. § 581.3(5).

 Factual Background

 The following facts are not disputed. During all events in question in this case, plaintiff held the rank of Captain in the United States Army. On December 2, 1989, the Army assigned her the position of engineer company commander. She served in that position until November 5, 1990, when her Brigade Commander Colonel Stephen A. Winsor relieved her for cause. The relief for cause was based upon an Officer Evaluation Report (OER) that stated that she could not handle stress, applied faulty logic in deviating from established standards, and did not apply standards uniformly. Her rater Lieutenant Colonel Robert F. Driscoll did not recommend her for promotion and her senior rater Colonel Winsor judged her potential to be below that of the majority of her peers.

 On September 13, 1992, plaintiff appeared the relief-for-cause OER to the Officer Special Review Board (OSRB) on the grounds that it contained both administrative and substantive inaccuracies. In support of her appeal, she submitted numerous written statements from both officers and enlisted personnel and other documentation. On December 11, 1992, the OSRB issued a written opinion in which it partially approved plaintiff's appeal. As she had requested, the OSRB added an addendum to the OER addressing the alleged administrative inaccuracy. *fn4" However, the OSRB found that she had failed to provide clear and convincing evidence to support her claims that the relief-for-cause OER was substantively incorrect. Therefore, it denied her appeal in all other respects.

 One month later -- in August 1993 -- plaintiff voluntarily resigned from the Army; she was granted Voluntary Separation Incentive payments of $ 9,512.34 annually for twenty years. Nonetheless, she continued to press her case to have the relief-for-cause OER expunged from her military records. Specifically, she appealed the OSRB's denial of her substantive appeal to the Army Board for Correction of Military Records (ABCMR). She argued that the Board of Inquiry's decision to retain her on active duty demonstrated that the relief-for-cause OER was substantively incorrect and, therefore, her relief for cause was unjust.

 On December 7, 1994, the ABCMR issued a memorandum decision finding no errors or unjust determinations in plaintiff's records. The ABCMR concluded that the Board of Inquiry's recommendation that Captain Charette be retained did not demonstrate that the relief-for-cause OER was substantively wrong because the Board specifically declined to address that question. A year later, plaintiff filed a request for reconsideration of her relief-for-cause appeal with the OSRB and included a copy of the Board of Inquiry's transcript as newly discovered evidence. The OSRB returned her request without action, indicating that she should seek reconsideration from the ABCMR since that body had denied her relief after taking into account the Board's transcript.

 While she continued her quest to expunge her military records, plaintiff joined an Army reserve unit as a Captain. However, she was not selected for promotion to Major on two different occasions and therefore was separated from active reserve status on September 3, 1996.

 Months later, she filed this lawsuit. According to her Complaint, she believes that the ABCMR and 1996 OSRB decisions, which denied her request to have the OER expunged from her records, should be overturned by this Court. The plaintiff argues that the Army's denial of relief was arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence, and otherwise not in accordance with law. Specifically, she requests that the Court order the Army to set aside, or at a minimum amend, her relief-for-cause OER or place the OER in the restricted section of her official personnel file. Finally, she requests that the Army be required to set aside her non-selections for Major, grant her promotion reconsideration, and reinstate her to active reserve status in a non-paying training capacity pending promotion reconsideration. *fn5"

 Presently before the Court are defendant's Motion to Dismiss or in the Alternative for Summary Judgment and plaintiff's Cross-Motion for Summary Judgment. In his motion, defendant asserts that plaintiff's claims for promotion and reinstatement are non-justiciable military matters. He further asserts that summary judgment in his favor on plaintiff's other claims is appropriate because plaintiff has failed to overcome the strong presumption that military administrators discharge their duties correctly and lawfully, rather than arbitrarily and capriciously. He also argues that the ABCMR and OSRB decisions were fully supported by the administrative record. Finally, defendant disagrees with plaintiff's conclusion that, because the Board of Inquiry voted to retain her in the Army, the Board must have determined that the relief-for-cause OER was substantively incorrect.

 I. Summary Judgment Standard

 Summary is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial--whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The role of the Court on a motion for summary judgment is not to weigh the evidence, but to determine whether genuine issues of material fact exist for trial. Abraham v. Graphic Arts Int'l Union, 212 U.S. App. D.C. 412, 660 F.2d 811, 814 (D.C.Cir.1981). To survive summary judgment, the nonmoving party must offer more than mere allegations, Anderson, 477 U.S. at 249, by going "beyond the pleadings and by [its] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the material facts proffered by the nonmoving party are subject to diverse interpretations, summary judgment is not available. Tao v. Freeh, 307 U.S. App. D.C. 185, 27 F.3d 635, 638 (D.C.Cir.1994). Any doubts must be resolved in favor of the nonmoving party, Abraham, 660 F.2d at 815, and the nonmoving party is entitled to all justifiable inferences. Anderson, 477 U.S. at 255.

 II. Justiciability

 In its leading opinion on the issue of the justiciability of claims such as plaintiff's, this Circuit warned that

 
Judges are not given the task of running the Army. The responsibility for setting up channels through which [complaints of discrimination, favoritism, et cetera] can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.

 Kreis v. Secretary of the Air Force, 275 U.S. App. D.C. 390, 866 F.2d 1508, 1511 (D.C. Cir. 1989) (brackets in Court of Appeals opinion) (citing Orloff v. Willoughby, 345 U.S. 83, 93-94, 97 L. Ed. 842, 73 S. Ct. 534 (1953)). The Court further cautioned that the "Constitution vests 'the complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force' exclusively in the legislative and executive branches." Id. (quoting Gilligan v. Morgan, 413 U.S. 1, 10, 37 L. Ed. 2d 407, 93 S. Ct. 2440 (1973)). In light of these principles, the Court determined that requests for retroactive military promotions fall "squarely within the realm of nonjusticiable military personnel decisions." Id.

 In this case, plaintiff's claims that the Secretary of the Army acted arbitrarily and capriciously, abused his discretion, or otherwise employed deficient decision making processes are clearly justiciable under familiar principles of administrative law. See, e.g., Frizelle v. Slater, 324 U.S. App. D.C. 130, 111 F.3d 172, 177 (D.C. Cir. 1997) (finding Board arbitrary when it failed to respond to two of plaintiff's arguments that were not frivolous on their face and could have affected the Board's decision); Smith v. Dalton, 927 F. Supp. 1, 9-10 (D.D.C. 1996) (remanding to the Board because Board did not have full opportunity to consider the entire record); Nethery v. Orr, 566 F. Supp. 804, 808 (D.D.C. 1983) (finding the Board did not act arbitrarily in refusing to construct a fictional basis for plaintiff's discharge). However, plaintiff's request for reinstatement and promotion reconsideration are clearly not justiciable because consideration of these claims would require this Court to intrude upon military personnel decisions committed exclusively to the legislative and executive branches. See Kreis, 866 F.2d at 1511 ("To grant such relief [judicial promotion] would require us to second-guess the Secretary's decision about how best to allocate military personnel in order to serve the security needs of the Nation. . . . Not only is the task inherently unsuitable to the judicial branch, but also Congress has vested in the Secretary alone the authority to determine whether the original selection boards erred in comparing appellant to the other candidates for promotion."); Cargill v. Marsh, 284 U.S. App. D.C. 180, 902 F.2d 1006, 1007 (D.C. Cir. 1990) ("To grant the transfer sought here, like the promotion in Kreis, would require [the court] to second-guess the Secretary's decision about how best to allocate military personnel in order to serve the security needs of the nation.") (internal quotations omitted).

 III. Administrative Procedures Act Review

 As discussed above, plaintiff's claims that the ABCMR and OSRB acted arbitrarily and capriciously, abused their discretion, or otherwise employed deficient decision making processes are clearly justiciable under familiar principles of administrative law. However, the function of this Court is not to serve as a super correction board that reweighs the evidence. See Walker v. Shannon, 848 F. Supp. 250, 255 (D.D.C. 1994). In fact, this Circuit has stated that APA review of the Boards' decisions are subject to "an unusually deferential application of the 'arbitrary and capricious' standard." Kreis v. Secretary of the Air Force, 275 U.S. App. D.C. 390, 866 F.2d 1508, 1514 (D.C. Cir. 1989). This high degree of deference stems from the statutory language authorizing the Secretary to correct military records " when the Secretary considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1) (emphasis added). As the Kreis Court said, "it is simply more difficult to say that the Secretary has acted arbitrarily if he is authorized to act ' when he considers it necessary to correct an error or remove an injustice,' 10 U.S.C. § 1552(a), than if he is required to act whenever a court determines that certain objective conditions are met, i.e., that there has been an error or injustice." Kreis, 866 F.2d at 1514.

 A. The Effect of the Board of Inquiry Decision

 In this case, plaintiff challenges the refusal of the ABCMR to expunge her relief-for-cause OER from her personnel file and the OSRB's denial of her appeal of that decision as arbitrary and capricious. Plaintiff's arguments in that regard hinge upon her interpretation of the Board of Inquiry's decision that she should be retained in the Army rather than eliminated. She argues that the Board's decision means that it determined that the OER was substantively invalid. Therefore, she claims that the ABCMR and OSRB denials of relief were arbitrary and capricious, abuses of discretion, and unsupported by substantial evidence because those denials maintained a substantively invalid OER in her active personnel file where it could be considered by promotion boards. Accordingly, although plaintiff does not ...


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