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Lassalle v. Geren

April 27, 2007

JOSE L. LASSALLE, PLAINTIFF,
v.
PETE GEREN, ACTING SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Jose L. Lassalle, currently a Warrant Officer in the United States Army Reserve, brings this action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., seeking review of a decision by the Army Board for Correction of Military Records ("ABCMR" or the "Board") denying his request for a temporary waiver of the civilian education requirement for promotion to the rank of Captain. Plaintiff also seeks review of the Board's subsequent denial of his request for reconsideration. Plaintiff asks that the case be remanded to the Secretary of the Army so that the Secretary may re-examine his military records and determine whether a waiver was warranted as of December 1999 and, if so, send plaintiff to a special selection board to be reconsidered for promotion to Captain. This matter is before the Court on the parties' cross-motions for summary judgment. For the reasons explained herein, the Court will grant defendant's motion for summary judgment and deny plaintiff's cross-motion for summary judgment.

BACKGROUND

Plaintiff has served in the United States military since 1978, when he enlisted in the Army. (Administrative Record ("AR") 195.) From June 1979 to November 1987, plaintiff served on active duty in the Army, rising to the rank of Sergeant. (AR 161, 195.) He thereafter enlisted in the Army National Guard. (AR 162-63, 195.) In August 1990, plaintiff graduated from Officer Candidate School ("OCS") and was commissioned as a Second Lieutenant in the Army National Guard. (AR 165-66, 168.) Plaintiff was promoted to the rank of First Lieutenant in August 1993. (AR 168.) In March 1998, plaintiff was assigned to an Active Guard and Reserve position in the 402nd Civil Affairs Battalion. (AR 173.)

Although plaintiff was considered for promotion to the rank of Captain by both the 1997 and 1998 Army Reserve Component Selection Boards, he was not selected by either Board because he had not yet earned a baccalaureate degree and therefore did not meet the civilian education requirement for promotion above the grade of First Lieutenant under 10 U.S.C. § 12205(a).*fn1 (AR 3, 37, 39.) Plaintiff was notified of his nonselection for promotion by the 1998 Selection Board in May 1999. (AR 95.) Because this was his second nonselection, plaintiff was also notified that he would be discharged from active duty in November 1999 in accordance with 10 U.S.C. § 14513.*fn2 (Id.) Plaintiff thereafter received a Bachelor of Science degree from Regents College in Albany, New York on June 18, 1999. (AR 98.)

On June 20, 1999, plaintiff submitted a request for a retroactive waiver of the civilian education requirement of 10 U.S.C. § 12205(a), pursuant to Section 516 of the National Defense Authorization Act for Fiscal Year 1999, Pub. L. No. 105-261, 112 Stat. 1920, 2008-09 (1998) (hereinafter "Section 516"). (See AR 3.) Enacted in October 1998, Section 516 authorized the Secretary of the Army to waive the civilian education requirement for a period of no more than two years for officers commissioned through OCS. 112 Stat. at 2008. The statute provided that such waivers would be made "on a case-by-case basis, considering the individual circumstances of the officer involved," and permitted the Secretary to grant waivers retroactively "as appropriate in an individual case."*fn3 Id. at 2008-09. Since plaintiff had been passed over for promotion by the 1998 Selection Board because he had not yet been awarded a baccalaureate degree, as required by 10 U.S.C. § 12205(a), a waiver of that requirement, made retroactive to the time that plaintiff was considered for promotion by the 1998 Board, would have enabled plaintiff to be reconsidered for promotion by a special selection board. (See AR 39.) In a September 1999 memorandum, the Chief of the Office of Promotions, Reserve Components, recommended that plaintiff's waiver request be granted. (AR 37.)

In December 1999, while his waiver request was pending, plaintiff was released from active duty. (AR 177.) One month later, in January 2000, plaintiff was notified by the Office of the Deputy Chief of Staff for Personnel ("ODCSPER") that his waiver request had been denied on the basis that there were "no grounds for [ODCSPER] to grant such a request after being twice non-selected for promotion." (AR 13.) The notice informed plaintiff that if he felt he had "a strong case for denial of due process based on his attendance to the active Officer Candidate School," he could file with the ABCMR. (Id.)

In July 2000, plaintiff submitted an application for correction of military records to the ABCMR, seeking promotion to the rank of Captain and call back to active duty status on the basis that his waiver request should have been granted. (AR 7-12.) The Board met to review plaintiff's application in March 2001 and voted to deny the application. (AR 2-5.) The Board recognized that, as an OCS-commissioned officer, plaintiff was eligible to request a waiver, but determined that there was no basis to grant plaintiff's request where there was "no evidence that he was denied due process or that there were mitigating circumstances that prevented him from attaining a degree prior to his consideration for promotion." (AR 5.) In April 2001, the ABCMR notified plaintiff that his application had been denied. (AR 6.)

More than two years later, in October 2003, plaintiff sought reconsideration of the ABCMR's March 2001 decision on the ground that the Board had committed a "mistake of law" and a "manifest error" in approving the denial of plaintiff's waiver request. (See AR 20-41.) Plaintiff argued that ODCSPER had denied his waiver request based on the incorrect legal conclusion that it had no discretion to grant a waiver to an officer who had been twice nonselected for promotion to the rank of Captain, and that the Board had erred by failing to correct ODCSPER's legal error. (See AR 27-34.) The ABCMR responded to plaintiff's request for reconsideration in July 2004, notifying him that the staff of the Board had determined that his application did not include "substantial relevant evidence . . . show[ing] fraud, mistake in law, mathematical miscalculation, [or] manifest error" or "substantial relevant new evidence discovered contemporaneously or within a short time after the original decision" and did not, therefore, meet the requirements for reconsideration more than one year after the original decision. (AR 18-19.) Accordingly, plaintiff was informed that his case was being administratively closed and returned to him without referral to the Board. (AR 19.)

Plaintiff again petitioned the ABCMR for reconsideration in April 2005, again challenging the Board's failure to take into account ODCSPER's failure to consider the merits of plaintiff's waiver application. (AR 66-69.) The Board returned plaintiff's application to him without action in March 2006. (AR 42.) In May 2006, plaintiff requested assistance from Senator John McCain (AR 51), who referred the matter to the ABCMR. (AR 45-46.) The Board construed plaintiff's inquiry as a further request for reconsideration and again returned the request to him without action in September 2006. (AR 43.)

ANALYSIS

I. Standard of Review

Decisions of military corrections boards are reviewed "under an 'unusually deferential application of the arbitrary or capricious standard' of the Administrative Procedure Act." Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (quoting Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)) (internal quotation marks omitted). The Court must defer to the correction board's decision "unless it is arbitrary and capricious, contrary to law, or unsupported by substantial evidence." Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997). The decision need not be "a model of analytic precision to survive a challenge. A reviewing court will 'uphold a decision of less than ideal clarity if the [board's] path may reasonably be discerned.'" Dickson v. Sec'y of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995) (quoting Bowman Transp., Inc. v. Arkansas-Best Motor Freight Sys., 419 U.S. 281, 286 (1974)). ...


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