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.
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.