The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
William Poole ("Poole"), a former United States Army E-5/Sergeant, brings this action against Francis J. Harvey, Secretary of the Army ("Secretary"), in his official capacity, asserting that the Army Board for Correction of Military Records ("ABCMR") acted arbitrarily and capriciously when it did not retroactively promote him to E-6/Staff Sergeant. The Secretary moves to dismiss this action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) in part and for summary judgment pursuant to Fed. R. Civ. P. 56 in part. Poole cross-moves for summary judgment. Upon consideration of the motions, the oppositions thereto, and the record of the case, the court concludes that both motions must be granted in part and denied in part.
Poole served on active duty in the Army from 1983 to 1998 and was discharged on July 19, 1998, pursuant to the Army's Retention Control Point ("RCP") policy. Pursuant to this policy, if a soldier does not reach a certain rank by promotion within a certain time frame he is discharged. The RCP fluctuates over time. At the time of Poole's discharge, the RCP required soldiers to attain the rank of E-6/Staff Sergeant within fifteen years. Poole was discharged because he failed to attain the rank of E-6/Staff Sergeant by his fifteen year mark.
Poole applied to the ABCMR for retirement pay and benefits. Poole asserted that the Army changed its RCP policy after he was discharged and that under this new policy soldiers had twenty years, instead of fifteen years, to attain the rank of E-6/Staff Sergeant. Poole asserted further that this policy change applied retroactively and that pursuant to the new policy, he would have been able to serve twenty years and retire with full benefits. The ABCMR denied Poole's request on the grounds that the change in policy was not retroactive.
Poole then submitted a request for reconsideration, in which he raised a different argument as to why he was entitled to retirement pay and benefits. In his request for reconsideration, Poole asserted that he should have been promoted to E-6/Staff Sergeant in March 1997, fifteen months prior to his discharge.
To be promoted, a soldier must complete several steps. First, he must attain a certain number of "points" in the field and be recommended for promotion by a unit commander. The soldier receives points for various activities, such as civilian education programs, military education programs, and marksmanship. The points that a soldier receives are documented in a "promotion packet." The soldier then appears in front of a promotion board, which awards additional points and decides whether to recommend him for promotion to the Battalion Commander. If the promotion board recommends the soldier for promotion and the Battalion Commander approves the recommendation, he is placed on a promotion standing list.
A soldier can then be promoted on the first day of the third month following the promotion board's recommendation,*fn1 provided that two criteria are met. First, a soldier must still appear on a promotion standing list. Second, the soldier must have enough "points" to meet or exceed a minimum "cut-off." The number of points necessary to meet this "cut-off" fluctuates over time. Accordingly, a soldier can be on the promotion standing list but not have the minimum number of points necessary for promotion.*fn2
In his request for reconsideration, Poole contended that he met these two criteria in March 1997. Poole submitted letters from his former First Sergeant and Command Sergeant Major that stated that he had been placed on a promotion standing list in 1991 and again in 1995. Poole contended that he must have still been on a promotion standing list in March 1997 because he was still in the Army at this time. Poole pointed out that, in March 1997, the RCP for soldiers who were not on a promotion standing list was thirteen years, and the RCP for soldiers who were on a promotion standing list was fifteen years. In April 1997 the Army increased the RCP for soldiers not on a promotion standing list to fifteen years. Poole reached the thirteen year mark in June 1996, but he was not discharged at that time. Poole contended that, had he not been on a promotion standing list between June 1996 and April 1997, he would have been immediately discharged because he would have been in the Army while the thirteen year RCP was in effect.
Poole concluded that the fact that he was still in the Army in March 1997 proved that he was on a promotion standing list.
Poole also asserted that he met the points "cut-off." In March 1997 the points "cut-off" was 726 points. While Poole was unable to submit a copy of his original promotion packet to the ABCMR, he submitted a "reconstructed" promotion packet. In this reconstructed promotion packet, he documented the points that he received. Poole contends that this reconstructed packet demonstrated that he received 728 points by March 1997, which was two points above the points "cut-off."
The ABCMR denied Poole's request for retroactive promotion. The ABCMR concluded that while the reconstructed promotion packet showed that he probably had enough points to achieve the March 1997 points "cut-off," there was no evidence that he was on the promotion standing list in March 1997.
Poole moves for summary judgment asserting that the ABCMR's decision not to retroactively promote him was arbitrary and capricious, and he seeks a court order that would require the Secretary to retroactively promote him.*fn3 Poole asserts that he was qualified for promotion in March 1997 because, at this time, he: (1) was on a promotion standing list and (2) met the points "cut-off." The Secretary cross-moves to dismiss this action insofar as it seeks a court order that would require Poole's promotion on the grounds that this court has no jurisdiction to review and order military promotion decisions. The Secretary recognizes, however, that this court has jurisdiction to ensure that the decision of the ABCMR rejecting Poole's claim was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence. With respect to the decision of the ABCMR rejecting Poole's claim, the Secretary moves ...