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Brown v. McHugh

United States District Court, District of Columbia

September 23, 2013

HENRY BROWN JR., Plaintiff,
v.
JOHN McHUGH, Secretary of the Army, Defendant

Decided: September 22, 2013.

Page 59

[Copyrighted Material Omitted]

Page 60

For MR. HENRY BROWN, JR., Plaintiff: Jane Carol Norman, LEAD ATTORNEY, BOND & NORMAN, PLLC, Washington, DC.

For JOHN M. MCHUGH, Defendant: John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Civil Division, Washington, DC.

OPINION

Page 61

MEMORANDUM OPINION

RICHARD J. LEON, United States District Judge.

Plaintiff Henry Brown, Jr. (" plaintiff" or " Brown" ), a retired United States Army officer, brought this suit against John McHugh, Secretary of the Army, in his official capacity as head of the Department of the Army. Plaintiff claims that the Army Board for Correction of Military Records improperly denied his administrative request to remove an adverse Officer Evaluation Report from his military service record. He now appeals that administrative decision to this Court. Before the Court are defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment, and plaintiff's Cross-Motion for Summary Judgment. Because plaintiff has failed to state a claim upon which relief can be granted, defendant's motion is GRANTED and plaintiff's motion is DENIED.

Page 62

BACKGROUND

Plaintiff Henry Brown, Jr. served as a commissioned officer in the U.S. Army Reserve for over 24 years and retired with the rank of Major in April 2007. Compl. [Dkt. # 1] ¶ ¶ 6, 8, 16, 21. In early 2006, plaintiff received an Officer Evaluation Report (" OER" ) evaluating his performance for the period October 21, 2004 to October 20, 2005 (the " October 2005 OER" ). Compl. ¶ 19; Administrative Record (" A.R." ) at 23-24. That OER is the centerpiece of this case.

An OER is a form used to evaluate the performance and potential of officers. See Army Regulation 623-105 (Dec. 17, 2004) (" Army Reg. 623-105" ), at ¶ 1-7(a). As part of the Army's personnel system, it helps identify which officers are best qualified for promotion and assignment to positions of higher responsibility, as well as which officers should be kept on active duty, retained in grade, or eliminated. Id. ¶ 1-8(a). At least two of the officer's supervisors prepare the OER: the " rater," who is the officer's direct supervisor, and the " senior rater," who is higher in the chain of command. Id. at ¶ ¶ 2-10, 2-14. The rater and senior rater evaluate the officer on the OER by checking " yes" or " no" in boxes for certain attributes, skills, and actions; rating performance and potential for promotion on a continuum; and writing narrative comments. Id. at ¶ ¶ 3-19, 3-20, 3-22.

Plaintiff's October 2005 OER, completed by rater Colonel Mark Rutkowski and senior rater Colonel Robert Visbal, reflected negatively on him in several respects. The rater checked " no" in the box for " Communicating" in Part IV(b)(3) and checked the " Unsatisfactory Performance, Do Not Promote" box in Part V(a), while the senior rater checked the " Do Not Promote" box in Part VII(a). Compl. ¶ 19; A.R. at 23-24. And the raters explained their recommendations with written comments that plaintiff's performance was " marginal" and " unremarkable" ; that he " often required more direction and guidance than should be required" by an officer of his rank; that he was lacking in leadership, communication, and organizational skills; that he required " greater experience to be an effective field grade officer" ; and that he should not be considered for promotion until he improved in those areas. Id.

Plaintiff appealed the October 2005 OER first to the Army Special Review Boards (" ASRB" ) in 2006 and requested removal of that report from his service record. Compl. ¶ 20; A.R. at 32-33. The ASRB denied his appeal in February 2008. Compl. ¶ 22; A.R. at 26-31. In the interim, plaintiff was not promoted to Lieutenant Colonel and was involuntarily retired from the Army with an honorable discharge in April 2007. Compl. ¶ ¶ 18, 21.

Following his discharge, plaintiff then pursued the final administrative remedy available to him--an appeal to the Army Board for Correction of Military Records (" ABCMR" ) to remove the October 2005 OER from his service record. Compl. ¶ 1, 24; A.R. at 11-22. The ABCMR, a civilian board operating under the authority of the Secretary of the Army, " may correct any military record of the [Army] when the Secretary considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a); see also Army Reg. 623-105 at ¶ ¶ 6-8(f), 6-10(a).

In his application to the ABCMR, plaintiff contested the adverse rating he received for his communication skills. See A.R. at 11-22. He submitted evidence to contradict his evaluation, including a letter commending his performance from Lieutenant Colonel Gundula Birong, who served with plaintiff during the period ...


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