The opinion of the court was delivered by: GREEN
This matter is before the Court on cross-motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56(a). The Plaintiff, Mr. Donald A. McDougall ("Mr. McDougall"), brought this action seeking reversal of a decision by the Air Force Board of Correction for Military Records ("AFBCMR") in which the AFBCMR denied his request for a correction of his military record. For the reasons set forth below, the Court grants Defendant's Motion for Summary Judgment, and denies the Plaintiff's Motion for Summary Judgment.
A review of the cross-motions for summary judgment reveal that the parties agree on all material facts necessary for this Court to make a ruling of summary judgment.
Plaintiff, Mr. McDougall, is a retired United States Air Force Captain. Widnall is the Secretary of the Air Force. During all relevant times, Plaintiff was a United States Air Force Captain. In 1992, Plaintiff was first considered for promotion to the rank of Major. See Complaint, P 6. In October of 1992, a Performance Recommendation Form ("PRF")
was prepared by Plaintiff's senior rater (the officer who prepares the promotion recommendation) for the exclusive use by the Calendar Year 1992 Major's Selection Board convening in December 1992. Plaintiff's senior rater was Colonel Kenneth Hess. This was Plaintiff's first consideration for promotion to Major.
The PRF is prepared by a senior rater who reviews an officer's entire record of past performance in the Air Force, and then writes narrative comments highlighting the officer's most significant accomplishments and the level of performance of these duties. See USAF OFFICER'S GUIDE TO THE OFFICER EVALUATION SYSTEM (1988)(hereinafter "GUIDE"). These narrative comments are intended to support the subsequent recommendation award in the PRF where the senior rater marks one of three blocks labeled "definitely promote," "promote," or "do not promote." Id. P 4-2.
Plaintiff's PRF for the Calendar Year 1992 Major's Selection Board included the following statements:
Personally manages a 28 week, 240 hour Undergraduate Pilot Training (UPT) program. Provides outstanding flight instruction to student pilots in a extremely demanding flying environment, requiring superior skill and judgment in the T-28 supersonic aircraft and the T-51 flight simulator in accordance with a highly complex syllabus of instruction.
- Proven leadership in war and peace mark this officer as a rising star.
-- Demonstrated outstanding aviation skills in B-52 combat operations: upgraded to aircraft commander, flight commander, instructor pilot in minimum time
-- As flight lead, destroyed key targets in Iraq and Kuwait during Desert Storm
- Outstanding staff skills highlight his versatility
-- Air component plans officer to USSOUTHCOM, wrote joint war plan to defend Panama Canal
-- Coordinated air operations and beddown of forces in Panama for Operation Just Cause
-- Developed USOUTHCOM'S strategy for counter narcotics operations in Latin America
- Outstanding performance in ATC evidence by exceptional student check ride pass rate
This PRF prepared by Colonel Hess awarded Plaintiff with a "promote" recommendation. Id. However, Plaintiff was not selected for promotion by the Calendar Year 1992 Major's Selection Board. See Complaint, P10.
Mr. McDougall claims that the characterizing comments in the 1992 PRF were conspicuous in their colorless description of his performance of his duties, and other omitted language otherwise recommending the timing of Mr. McDougall's promotion, attendance at advanced professional schooling, and potential. See Complaint, P 9. Plaintiff was told during a performance records review with his senior branch official, Lieutenant Colonel Smith, that the lackluster description of his duty performance and other omitted language in section IV of his PRF was the single greatest factor prejudicing his favorable consideration for promotion in the 1992 Major's Selection Board. See Complaint, P 11.
In April of 1993, Lieutenant General ("LTG") Eugene Habiger, acting in his capacity as president of the Management Level Evaluation Board ("MLEB") responsible for quality control of all PRFs, issued a letter to Colonel Hess and other senior raters articulating his policy statement on how PRFs should be written. Criticizing the senior raters for poorly written PRFs, LTG Habiger outlined specific directions to Colonel Hess on how to write appropriate PRFs. See Administrative Record ("AR") at 23-24.
Soon thereafter, Air Training Command ("ATC") conducted a formal briefing for ATC senior raters to effect LTG Habiger's PRF instructions for writing the PRFs as part of the continuing MLEB quality control process. The briefing included the Director of Personnel for ATC selecting Mr. McDougall's 1992 PRF written by Colonel Hess as an example of a poorly written PRF. The ...