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 of
material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks
If the moving party meets its burden, the burden then shifts to
the non-moving party to establish that a genuine issue as to any
material fact actually does exist. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). The non-moving party is "required to provide
evidence that would permit a reasonable jury to find" in its
favor. Laningham v. Navy, 813 F.2d 1236, 1242 (D.C.Cir. 1987).
Such evidence must consist of more than mere unsupported
allegations or denials and must set forth specific facts showing
that there is a genuine issue for trial. Fed. R.Civ.P. 56(e);
Celotex, 477 U.S. at 322 n. 3, 106 S.Ct. 2548. If the evidence
is "merely colorable" or "not significantly probative," summary
judgment may be granted. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
B. Administrative Procedure Act
It is not the court's function to serve as a super correction
board and reweigh the evidence. Walker v. Shannon, 848 F. Supp. 250,
254-55 (D.D.C. 1994). Accordingly, "review of the
administrative decision is limited to determining whether the . .
. action was arbitrary, capricious, or in bad faith, or was
unsupported by substantial evidence, or contrary to law,
regulation, or mandatory published procedure of a substantial
nature by which [the complainant] has been seriously prejudiced."
Id. at 255 (citing Heisig v. United States, 719 F.2d 1153,
1156 (Fed.Cir. 1983)). The plaintiff must show by "clear and
convincing evidence" that the decision should be overturned.
Id. at 254 (citing Wronke v. Marsh, 787 F.2d 1569, 1576
A. Cone's Report
Army regulations presume that officer evaluation reports, once
officially recorded, are administratively correct and "represent
the considered opinions and objective judgment of the rating
officials at the time of preparation." AR 623-105, ¶ 5-32(a). In
federal court, "the burden is on the plaintiff to prove
otherwise." Cooper v. United States, 203 Ct.Cl. 300, 304
(1973). An officer challenging the accuracy of an evaluation
report, therefore, "`must overcome the strong, but rebuttable
presumption that administrators of the military, like other
public officers, discharge their duties correctly, lawfully, and
in good faith.'" Guy v. United States, 221 Ct.Cl. 427,
608 F.2d 867, 870 (1979) (citations omitted). The presumption of
regularity may be rebutted by proof of legal error and arbitrary,
capricious action. See Skinner v. United States, 219 Ct.Cl.
322, 594 F.2d 824, 830 (1979). Thus, although "perfect
objectivity in the rating process cannot be expected or even
hoped for," id. at 870-71, a selection board may not properly
consider an evaluation report unless it has been "prepared in the
manner required by law." Id. at 870.
Here, Cone alleges that from 1989 through 1992, the senior
rater arbitrarily and capriciously failed to follow Army
in rating the potential of his fellow officers and that this
error caused him to receive a below center-of-mass evaluation.
The relevant regulations prescribe:
(b) The senior rater's evaluation is made by
comparing the rated officer's potential with all
other officers of the same grade, or grade groupings,
as in the case of lieutenants. His or her evaluation
is based on the premise that in a representative
sample of 100 officers of the same grade or grade
grouping (Army-wide), the relative potential of such
a sample will approximate a bell-shaped normal
(c) This distribution pattern is shown in the
senior rater's portion of the OER. The pattern means
that in a representative sample of 100 officers of
the same grade or grade grouping (Army-wide) only one
officer can reasonably be expected to be placed in
the top block. The probability of having an officer
of such potential is 1 in 100.
AR 823-105, ¶ 14-16.
Cone was one of eleven captains rated by the senior rater
during the relevant period. Of the eleven captains in the senior
rater's profile, seven received "top block" ratings for
potential; three (including Cone) received "second block"
ratings; and one received a "third block" rating.
The Army correctly notes that "[t]he regulations do not mandate
that each senior rater maintain a bell-shaped-curve distribution"
and that "since there are thousands of captains in the Army, it
is statistically possible that a particular senior rater may have
a number of captains that he or she is senior rating that merit
placement in the top block." Def.'s Resp. to Pl.'s Statement of
Facts ¶ 41; see also Def.'s Opp. at 13 (citing A.R. 623-105, ¶
4-16(d)(5)(a)). Nevertheless, the regulations plainly apply to
every senior rater and every evaluation, and explicitly set forth
specific statistical parameters under which a senior rater's
profile can reasonably be expected to fall. See Voge v. United
States, 844 F.2d 776, 779 (Fed. Cir. 1988) (citing Service v.
Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957))
("It has long been established that government officials must
follow their own regulations, even if they were not compelled to
have them at all"); see also Def.'s Opp. at 12 (citing AR
623-105, ¶ 2-5(b)) (noting that a senior rater's profile is
reviewed when the senior rater is considered for promotion).
Under the premise that the probability that a captain merits
placement in the top block is 1 in 100, or 0.01, the number of
such officers among a "representative sample" of eleven taken
from an "Army-wide" population is closely approximated by a
binomially distributed random variable with expected value 0.11
and standard deviation 0.33.*fn1 The senior rater's ranking of
seven captains in the top block is more than twenty standard
deviations above the expected value, and is significant in
Student's T distribution at the 99.9999999% confidence level.
See T Distribution Calculator
(reporting upper probability of 7.04475 × 10-10 -10 for
t=20.8788 with 10 degrees of freedom).
Even for this small sample, then, the senior rater's profile
alone is clear and convincing proof that the senior rater
violated ¶ 4-16 in rating at least some of the other captains
against whom Cone was compared. See Castañeda v. Partida,
430 U.S. 482, 497 n. 17, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977) ("As a
general rule for . . . large samples, if the difference between
the expected value and the observed number is greater than two or
three standard deviations, then the hypothesis that
the jury drawing was random would be suspect to a social
scientist."); Moultrie v. Martin, 690 F.2d 1078, 1084 n. 10
(4th Cir. 1982) ("The Supreme Court's rule in Castañeda of
course can be adjusted for small sample sizes through the use of
the student's [sic] t distribution."). These legal errors are
sufficient to overcome the presumption of regularity regarding
In deciding Cone's first appeal, the Officer Special Review
Board noted that previous profiles by the same senior rater
indicated a "persistent failure . . . to manage his profile for
[captains] in such a way as to preclude any unintended
below-[center of mass] ratings." See Def. Ex. B at 20 (noting
profiles in which 22 of 61, 12 of 19, 6 of 11, and 26 of 32
captains received top-block ratings); see also Def. Ex. B at 35
(noting that in all profiles between November 1990 and January
1992, "[the senior rater's] top block was his [center of mass]");
Def Ex. A at 6 (concluding that Cone's potential evaluation "was
based on the [senior rater's] comparison of the applicant with
other officers of the same grade"). This characterization of the
senior rater's errors presupposes that, consistent with ¶ 4-16,
the center of mass of an eleven-officer profile can reasonably be
located in the top block. It cannot.
Moreover, the senior rater's parenthetical comment that "[t]his
evaluation does not reflect a downturn in performance, rather I
have restarted my profile" indicates, at the very least, that the
senior rater did not intend for his ongoing profile to serve as
the basis for an adverse assessment of Cone's performance. See
AR 623-105, ¶ 3-12.1b (cautioning senior raters that a restart
may be necessary to convey the intended personnel evaluation to
selection boards and personnel managers). The remainder of the
senior rater's comments are wholly laudatory and support Cone's
promotion and selection to the Command and General Staff College.
In sum, there is nothing in the senior rater's report that can
reasonably be construed as the basis for a below-center-of-mass
evaluation. The court therefore finds that the Officer Special
Review Board acted arbitrarily, capriciously, without the support
of substantial evidence, and contrary to law when it found that
the presumption of regularity in ¶ 5-32 must be applied to Cone's
report and, accordingly, that the Army Board for the Correction
of Military Records should have amended Part VIIa of Cone's
report to reflect a center of mass rating.
B. Cone's Nonselection
The finding that military personnel records require correction
does not authorize this court to review the merits of a
discretionary decision based on those records. See Murphy v.
United States, 993 F.2d 871, 873-74 (Fed.Cir. 1993). In
Murphy, the Court of Federal Claims had held that an officer
was unlawfully released from active duty based on incorrect
military records. Id. at 873. Without reviewing the trial
court's determination that the officer's records were in error,
the Federal Circuit held that "the possibility of erroneous
records does not transform an otherwise nonjusticiable action
into a reviewable one." Id. Even after the records were
amended, "there were still no tests or standards [the trial
court] could apply to determine whether the officer would have
been released." Id. Thus, the merits of the decision to release
the officer were beyond judicial reach, and would remain so even
if the appeals court were to order remand for reconsideration
based on corrected records. Id. at 874. See also Small v.
United States, 158 F.3d 576, 581 (Fed.Cir. 1998) (finding that
non-selection for promotion did not present justiciable issue
where there were "no tests or standards" to determine whether
officer would have been promoted on the basis of a corrected
Despite the senior rater's express recommendation that Cone be
considered for selection when eligible, Pl.Ex. D at 47, Cone
states that he was informed by certain
officers that his non-selections were prejudiced by the senior
rater's report. Compl. ¶ 17. Cone, however, has not suggested any
tests or standards to determine whether he would have been
selected to the Command and General Staff College no matter what
had appeared in the senior rater's report. Instead, Cone notes
that "[t]he selection rate for the entire year group over this
four year period is about 50%, with 90% of those selected in the
first two considerations." Compl. ¶ 16. These raw statistics do
not even indicate a correlation between selection and senior
raters' evaluations, let alone a causal relationship. Thus, the
court finds that Cone has failed to allege an adequate "nexus or
link between that error or injustice and the adverse action" to
permit review of his non-selection by this court. See Muse v.
United States, 21 Cl.Ct. 592, 604 (1990) (citing Hary v. United
States, 223 Ct.Cl. 10, 618 F.2d 704, 706-07 (1980)).
For the foregoing reasons, the Army's motion for summary
judgment will be granted as to reconsideration of the
non-selection to the Command and General Staff College, and
denied as to amendment of the officer evaluation report. Cone's
cross-motion for summary judgment will be granted as to amendment
of the report and denied as to reconsideration of the
non-selection. An appropriate order accompanies this memorandum.
ORDER AND JUDGMENT
Pursuant to Fed.R.Civ.P. 58 and for the reasons stated by the
court in its memorandum docketed this same day, it is this 18th
day of February 1999 hereby
ORDERED and ADJUDGED that judgment is entered in favor of the
plaintiff as to amendment of the officer evaluation report; and
it is further
ORDERED and ADJUDGED that judgment is entered in favor of the
defendant as to reconsideration of the non-selection to the
Command and General Staff College.