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