United States District Court, District of Columbia
Re Document No.: 10, 14.
For JETHRO COE, Plaintiff: Jane Carol Norman, BOND & NORMAN, PLLC, Washington, DC.
For JOHN M. MCHUG, Secretary of the Army, Defendant: John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Civil Division, Washington, DC.
RUDOLPH CONTRERAS, United States District Judge.
Granting the Defendant's Motion to Dismiss or in the Alternative, for Summary Judgment; Denying the Plaintiff's Cross-Motion for Summary Judgment
This action seeks review of a decision by the Army Board for Correction of Military Records (" ABCMR" or " Board" ). The plaintiff is a U.S. Army veteran, who claims that when he served in the military, he unjustly received an adverse Officer Evaluation Report (" OER" ). He later obtained a sworn statement from the lieutenant colonel who had written the allegedly adverse OER, which recanted his negative comments and review. The plaintiff then filed an application with the ABCMR to amend the OER, which was denied. The plaintiff now files this action, appealing that decision, pursuant to the Administrative Procedure Act (" APA" ). He seeks correction of his military record, and also claims that because of the allegedly adverse OER, he was barred from promotion and was essentially forced to retire. The defendant has filed a motion to dismiss, or in the alternative, for summary judgment. In response, the plaintiff has filed a cross-motion for summary judgment. Because the Board evaluated all of the evidence before it and applied the relevant Army regulation in its analysis, its decision was well-reasoned and not arbitrary and capricious. The defendant's motion for summary judgment is therefore granted, and the plaintiff's claims are dismissed.
II. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
The plaintiff is a U.S. Army veteran with thirty years of service. Pl's SMF ¶ 1.
At some point between October of 1992 and July of 1993, while serving in the Army, he received a directive from the Department of the Army USSOCOM to cancel an operational exercise that had been requested by the Deputy Chief of Staff, Logistics, who was the plaintiff's senior rater. Id. ¶ 5. The plaintiff was instructed to submit a Disposition Form canceling the exercise, which he did. Id. ¶ 6. He forwarded the form to his rater and senior rater, explaining what had happened. Id. The plaintiff claims that upon return from temporary duty, the senior rater was upset that the plaintiff had canceled his operation. Id. In August of 1993, the plaintiff received an OER that stated that the plaintiff's " overbearing nature ha[d] diminished his relationship with people and overall effectiveness." Def.'s SMF ¶ 10. The plaintiff claims that the OER was written by Lieutenant Colonel Seetin at the direction of the senior rater, who was angry at the plaintiff for having canceled the operation. Pl.'s SMF ¶ 8.
In 2010, the plaintiff obtained a sworn statement from Lieutenant Colonel Seetin, which recanted his negative comments in the OER and substituted positive language in its place. Id. ¶ 9. On July 16, 2010, the plaintiff applied to the ABCMR, seeking corrections to the OER, and asserting that the OER was the result of bias and prejudice by the rating officials. Def.'s SMF ¶ 19. On September 23, 2010, the ABCMR, in a unanimous decision, denied the plaintiff's request for corrections to the OER. Id. ¶ 21. The plaintiff has now filed this action appealing that decision, pursuant to the Administrative Procedure Act, seeking correction of that record. He also alleges that because of the allegedly adverse OER, he was barred from promotion and was essentially forced to retire, in violation of his Fifth Amendment due process rights. The defendant has filed ...