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Calloway v. Brownlee

March 30, 2005

GONZALES CALLOWAY, PLAINTIFF,
v.
LES BROWNLEE, SECRETARY OF THE ARMY DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiff, a retired noncommissioned officer ("NCO") of the United States Army ("Army"),*fn1 brings this action contending that the Army improperly denied his request to remove two Non-Commissioned Officer Evaluation Reports from his personnel file in violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Amended Complaint for Declaratory Relief ("Compl.") at 1. Currently before the Court are the defendant's Motion to Dismiss,*fn2 Transfer, or, for Summary Judgment ("Def.'s Mot."), the plaintiff's Cross-Motion for Summary Judgment ("Pl.'s Cross Mot."), and the parties' oppositions thereto.*fn3 For the reasons set forth below, this court will deny the defendant's motions for summary judgment, to transfer, and to dismiss, and grants in part the plaintiff's cross-motion for summary judgment.

I. Background

(A) Regulatory Framework

The evaluation of noncommissioned officers is governed by Army Regulation ("Army Reg.") 623-205 (April 30, 1992), which establishes the Noncommissioned Officer Evaluation Reporting System ("NCOERS"). The regulation provides for the "preparation, processing [and] submi[ssion]" of Noncommissioned Officer Evaluation Reports ("NCOER"), whose purpose is to, in part, "ensure the selection of the best qualified noncommissioned officers to serve in positions of increasing responsibilities by providing rating chain view of performance/potential for use in centralized selection...." Army Reg. 623-205 § 1-5(a)(2). The information contained in these reports is one factor used as the basis for making personnel decision, including school selections, promotions, and the assignment of military occupational specialty classifications. Id. Each NCO is evaluated by both a rater, who is generally the NCO's immediate supervisor, id. § 3-5(a)(1), and a senior rater, who is someone who is higher in the chain-of-command than the rater. Id. § 3-7(a)(1). The primary responsibility of the rater is to evaluate the NCO's duty performance and professional development, id. § 3-6(a), while the senior rater's role is primarily "overwatching the performance evaluation, and mentioning." Id. § 3-8.*fn4

Pursuant to this evaluation system, report information is completed on DA Form 2166-7, the NCO Evaluation Report. Id. § 6-1 & pp. 27-28. This evaluation form contains a number of sections in which various attributes of an NCO are evaluated. For example, in Part IV, raters assess whether the NCO satisfies certain values, i.e., dedication, commitment, discipline, honesty, and courage. Id. at 27. Also in Part IV, the rater evaluates the NCO's competence, physical fitness and military bearing, leadership, training, and responsibility and accountability. Id. at 28. In each of these categories, the rater determines whether the NCO merits a rating of "excellence," "success," "needs some improvement," or "needs much improvement." Id. In addition, in Part V, the rater assesses the NCO's overall performance and indicates whether the NCO's overall potential for promotion and/or service in positions of greater responsibility is "among the best,"*fn5 "fully capable,"*fn6 or "marginal."*fn7 Id. at 28. In addition, the senior rater assesses the NCO's overall performance and the NCO's overall performance for promotion and service in positions of greater responsibility, and assigns numerical scores to the evaluations. Id. A rating of "1", "2", or "3" is considered a "successful" or "superior" rating, with "1" being the highest possible numerical score. A numerical rating of 4 is considered "fair" and a score of "5" is considered poor and is the lowest possible rating. Id. The senior rater also provides comments to support his or her numerical scores. Id.

Such evaluations must occur at least annually, however, if certain qualifying events occur, the evaluations must be completed more often. Id. § 2-7(a). For example, "[a] report will be submitted whenever the designated rater is changed as long as the minimum rater qualifications are met." Id. § 2-8(a) ("change-of-rater evaluation"). Rater changes occur if either the rater or the NCO is reassigned, released from active duty, or if the rater dies, is relieved, reduced, AWOL, declared missing, or becomes incapacitated. Id. § 2-8(a)(1)-(5). In addition, an NCOER must be conducted if an NCO is being relieved of his or her duty for cause.

Relief-for-cause is defined as the removal of a NCO from a rateable assignment based on a decision by a member of the NCO's chain of command or supervisory chain that the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the U.S. Army.

Id. § 2-10 ("relief-for-cause evaluation"). "[R]elief of an individual for cause is one of the most serious steps taken. It is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate under the circumstances." Army Reg. 600-20 § 2-15 (March 30, 1988).

An NCO has a number of procedural channels available to challenge an adverse NCOER. For example, an NCO can request a Commander Inquiry to determine whether an NCOER was "illegal, unjust, or otherwise in violation of [Army Regulations.]" Army Reg. 623-205 § 2-15. Moreover, an NCO may appeal an NCOER to the Enlisted Special Review Board ("ESRB"), which hears appeals when claims are made alleging substantive inaccuracy in an evaluation or injustice, such as bias, prejudice, inaccurate or unjust ratings. Id. §§ 4-2(i), 4-5(b). If the appeal is denied by the ESRB, an NCO may either seek reconsideration by the ESRB, put forth new evidence in support of a new appeal before the ESRB, or appeal the ESRB's decision to the Army Board for Correction of Military Record ("ABCMR" or "BCMR"). Id. § 4-5(f). On appeal, the NCO bears the burden of proving a substantive inaccuracy or injustice. Id. § 4-7(a). In addition, the regulation states that NCOERs are presumed to be "administrative[ly] correct", "[h]ave been prepared by the proper rating official," and "[r]epresent the considered opinion and objective judgment of rating officials at the time o[f] preparation." Id. §§ 4-2(a)(1)-(3). Any appeal "must be supported [b]y substantiating evidence." Id. § 4-2(f). And the NCO must establish by clear and convincing evidence that the above listed presumptions should not be applied.

(B) Factual Background

In 1974, the plaintiff enlisted in the Army as an active duty member. Compl. ¶ 1. Initially, the plaintiff trained as an Automated Data Processing specialist. Id. However, in October 1983, the plaintiff, who was then a Staff Sergeant, became an Army recruiting specialist. Id. ¶ 2. From 1983 through most of 1985, the plaintiff was a Field Recruiter at various recruiting stations in the "Seattle Washington Recruiting Battalion." Id. During this time, the plaintiff received an award for Top New Recruiter in 1984, and was "commended" as Top Recruiter in the battalion in 1985. Id. In 1985, the plaintiff was promoted to Sergeant First Class. Id. ¶ 3. In September 1985 and until January 1987, the plaintiff was the commander of a Field Recruiting Station in the "Seattle Washington Recruiting Battalion." Id. ¶ 4. Following this assignment, in January 1987, the plaintiff became a Recruiting Trainer at the Army Recruiting Training Brigade in Fort Baker, California. Id. ¶ 5. The plaintiff served in this position until February 1988, at which time he again was a station commander of a recruiting station in Seattle, Washington. Id. ¶ 6.

Following his 1988 assignment to the Seattle position, the plaintiff was transferred to the Norfolk Virginia Recruiting Company, United States Army Recruiting Battalion, Richmond, Virginia and assigned as the Company's First Sergeant. Id. ¶ 7. The plaintiff's first NCOER (NCOER 9303-9307) as senior sergeant at this company was issued as a change-of-rater evaluation because the plaintiff's supervisor departed. Id. ¶ 12. He received "excellence" marks in all five categories of the NCOER, and the senior rater awarded the plaintiff the highest numerical score possible, "1", for overall performance and promotion potential. Id. ¶ 12.

Thereafter, Captain Latham became the plaintiff's supervisor and thus his rater under the NCOERS. Id. ¶ 15. According to the plaintiff, once Captain Latham assumed this position, he began to shift credit for the Norfolk Virginia Battalion's successes from the plaintiff to himself. Id. ¶ 15. The plaintiff alleges that after Latham's effort to relieve him of his duties was unsuccessful, a "back-room deal was made" in his absence whereby the plaintiff would receive credit for the Company's success by the issuance of a Meritorious Service Medal, while at the same time he would be relieved of his duties and receive an evaluation which he deemed would be a "career-ender NCOER." Id. ¶¶ 16-17. In this evaluation, which covered the period of August 1993 through January 1994, the plaintiff contends that his prior "excellence" marks in Part VI of the NCOER were "deflated." Id. ¶ 16. To support this accusation, the plaintiff points to the fact that in the prior NCOER, he received five "excellence" ratings, while in the NCOER for this period he received only two "excellence" ratings and three "success" ratings. Id; compare Administrative Record ("A.R.") at 166-167 (NCOER 9303-9307) with A.R. at 169-170 (NCOER 9308-9401). Moreover, the plaintiff notes that his overall evaluation was downgraded from the prior NCOER, which had rated him "among the best," to "fully capable" in the NCOER for that rating period. Id. In addition, the plaintiff notes that the senior rater in this NCOER rated the plaintiff's overall performance and overall potential for promotion as a "2" and commented that the plaintiff should be promoted with his contemporaries, while the senior rater in the prior NCOER rated the plaintiff's overall performance and overall potential for promotion as a "1" and asserted that the plaintiff should be promoted to Sergeant Major. Id. Following the issuance of the 1994 NCOER, the plaintiff was ...


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