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STEM v. ENGLAND

October 30, 2001

JACK L. STEM, PLAINTIFF,
V.
GORDON R. ENGLAND, SECRETARY OF THE NAVY DEFENDANT.



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

GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING THE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The plaintiff, Jack Stem ("the plaintiff"), brings this action against the Secretary of the Navy ("the defendant"), alleging that the decision made by the Board for Correction of Naval Records ("BCNR") is contrary to law, arbitrary and capricious, an abuse of discretion, and not supported by substantial evidence. Before the court is the defendant's motion for summary judgment and the plaintiffs cross-motion for summary judgment. Upon consideration of the parties' submissions and the relevant law, the court will grant the defendant's motion and deny the plaintiffs motion.

II. BACKGROUND

A. Factual Background

By way of background, the plaintiff is an active duty Lieutenant Commander ("LCDR") in the U.S. Navy who was not selected for promotion by the fiscal year ("FY") 2000 selection board. See id. ¶¶ 2, 5. Among other things, the selection board considered two fitness reports, respectively dated November 12, 1996 and April 15, 1997, in reaching its decision. See id. ¶ 6; see also Administrative File of BCNR in the case of LCDR Jack L. Stem [hereinafter "Admin. File"] at 14-17.

On February 23, 2000, Captain Robert H. Wood (U.S.Navy, Retired), the author of the two fitness reports mentioned above, sent a letter to the president of the FY 2001 selection board. See Admin. File at 18. In that letter, Captain Wood explained his philosophy in rating the officers in his command. See id. His goal was "to try and give deserving officers the opportunity to finish at or near, the top [of the rating scale] before they detached." See id. Captain Wood also wrote:

[h]ad I remained on active duty, I would have ranked Jack [Stem] my number one officer on the next fitness cycle. Also, had I not taken into consideration Jack's relative experience and `juniority,' but only considered his stellar achievements and demonstrated leadership ability, I would have ranked him significantly higher earlier in his tour.

Id. In addition to his non-selection in FY 2000, the plaintiff was not selected for promotion by the FY 2001 selection board. See Compl. ¶ 5.

B. Procedural History

By way of procedural history in the case, following the decision rendered by the FY 2001 selection board, the plaintiff applied to BCNR for correction of his personnel record on October 24, 2000. See id. ¶ 10. The plaintiff sought to have the two fitness reports referred back to the author for correction. See Admin. File at 7. The plaintiff claimed that Captain Wood improperly lowered his evaluation of the plaintiff and that the letter demonstrates Captain Wood's evaluation of officers based on a system of "progressively-higher evaluations as time elapses based upon relative seniority of the officers under evaluation." See id. at 10. The plaintiff attempted to have BCNR set aside the FY 2000 and FY 2001 selection boards' determinations regarding his non-selection for promotion and to have his record referred, after having been corrected, to a Special Selection Board to reconsider the plaintiff for promotion to Commander. See Admin. File at 7.

On March 28, 2001, the Executive Director of BCNR informed the plaintiff that BCNR had considered the plaintiffs application for correction of his records, and that BCNR had decided that it would take no action. See Admin. File at 1. Specifically, BCNR "found no authority for [the plaintiffs] counsel's proposition that [the plaintiffs] reporting senior could not properly consider [the plaintiffs] experience and seniority in ranking [the plaintiff]." See id.

On April 19, 2001, the plaintiff filed his complaint with this court against the Secretary of the Navy, alleging that BCNR's decision was "contrary to law, arbitrary and capricious, an abuse of discretion, and not supported by substantial evidence." See Compl. ¶ 15. In the complaint, the plaintiff requests that the court grant him equitable relief from BCNR's decision by issuing a judgment reversing BCNR's decision, directing that the fitness reports be referred back to their author for correction, voiding the plaintiffs "pass[-]overs" for promotion to Commander, and requiring the plaintiffs corrected record to be referred to a special selection board to reconsider the plaintiff for FY 2000 and FY 2001 board action. See id. at 5.

The defendant filed a motion for summary judgment on August 6, 2001. On September 4, 2001, the plaintiff filed a cross-motion for summary judgment. These motions are now before the court. For the reasons that follow, the court will deny the plaintiffs cross-motion for ...


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