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CONE v. CALDERA

February 18, 1999

GEORGE E. CONE, JR., PLAINTIFF,
v.
THE HONORABLE LOUIS CALDERA, AS SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Kennedy, District Judge.

MEMORANDUM OPINION

George E. Cone, Jr., an officer in the United States Army, seeks review under the Administrative Procedure Act of a decision by the Army Board for the Correction of Military Records (the "Board"). In that decision, the Board declined to amend Cone's Officer Evaluation Report (the "report") and to reconsider his non-selection to the resident Command and General Staff College. Cone contends that the Board's holdings were arbitrary and capricious. The Army argues that Cone's report and non-selection were consistent with Army regulations, and that his non-selection does not present a justiciable issue to this court.

This case is presently before the court on cross-motions for summary judgment. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that each party's motion must be granted in part and denied in part.

I. FACTUAL BACKGROUND

George E. Cone, Jr. served as a captain in the United States Army in Germany and later in combat in Southwest Asia during the Persian Gulf War. In June 1991, Cone received an Officer Evaluation Report for the year ending June 13, 1991. The report contained evaluations by a rater and a senior rater. The rater checked a box marked "promote ahead of contemporaries" and wrote the comment: "CPT Cone has outstanding potential for the most challenging assignments. Select for promotion and [the Command and General Staff College] as soon as eligible." Pl.Ex. D at 47. The senior rater's evaluation includes the following comments:

    CPT Cone has developed into an outstanding Company
  Commander. His company executed a safe and rapid
  deployment to SWA and performed superbly during
  offensive operations aimed at the liberation of
  Kuwait. Consolidation operations and humanitarian
  assistance provided by his company after cessation of
  hostilities were particularly outstanding.
    Solid potential for advancement. Promote to major
  and consider for CGSC when eligible.
    (This evaluation does not reflect a downturn in
  performance, rather I have restarted my profile.)

Id. The senior rater also indicated Cone's "personal evaluation" by placing an "X" in the second of ten available blocks. Id. Although this rating was the second-highest possible, it was below the median, or "center of mass," of the senior rater's distribution. Supp. Statement for George E. Cone, Jr. ¶ 3, Pl.Ex. A at 9.

On March 6, 1993, and March 7, 1994, Cone filed appeals with the Officer Special Review Board, requesting deletion of the senior rater's comments and evaluation. The Board denied both appeals.

Cone then appealed to the Army Board for Correction of Military Records. The latter board dismissed Cone's application for correction, finding that Cone had failed to show that the report "was not prepared in compliance with applicable regulations and policy" and that the senior rater's rating was based on an objective comparison of Cone with other officers of the same grade at the time of evaluation. Pl.Ex. A at 6. Subsequently, Cone was promoted to major, but was twice not selected to attend the Command and General Staff College. This litigation followed.

II. STANDARD OF REVIEW

A. Summary Judgment

A motion for summary judgment should be granted if and only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party's "initial responsibility" consists of "informing the [trial] court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue ...


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