Opinion
04-CV-1051 (SLT).
May 12, 2006
REPORT AND RECOMMENDATION
Introduction
Plaintiff Althea Davis brings this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. (2004), against defendant R.L. Brownlee, Acting Secretary of the United States Army. Complaint ("Compl.") ¶ 5. Davis has served since 1989 as a Reserve-commissioned officer in the United States Army Nurses Corps (the "Reserves"). Davis' claims arise out of (1) an "adverse" Officer Evaluation Report ("OER") in which two officers, Lieutenant Colonel Audrey L. Hinds and Colonel Linda G. Cupit, rated Davis' performance in the Reserves for the period from November 4, 1995 to November 3, 1996 (the "1995/96 OER"), (2) the absence of any OERs rating Davis' performance for the period from 1996 to 2000, and (3) a hardship discharge allegedly issued in 1997 but which Davis contends she never requested. Davis' allegations center around her movement from one Reserve unit to another unit and then back again, and the "personal animus" she claims Lieutenant Colonel Hinds and her friend Colonel Cupit harbored against her.
Although Brownlee was named in the Complaint in his official capacity as Acting Secretary of the United States Army, Dr. Francis J. Harvey was sworn in as the Secretary of the United States Army on November 19, 2004. Defendant's Memorandum of Law in Support of Defendant's Motion for Summary Judgment ("Def.'s Mem.") 1 n. 1, Docket Entry 16. Accordingly, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Dr. Harvey is substituted as the defendant in this action in place of Brownlee.See FED. R. CIV. P. 25(d)(1) (providing that "[w]hen a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party").
Davis contends that she was denied a promotion to lieutenant colonel in 2002 and 2003 because the Reserve Components Selection Board was influenced by the adverse 1995/96 OER and because, due to the four-year gap in Davis' OERs, the Board had no basis upon which to assess Davis' performance as a major. Davis further claims that she missed twelve unit training assemblies ("UTAs") held while she was out on the hardship discharge she never sought. Davis is concerned that her lack of promotion and the twelve UTAs that she missed while out on hardship discharge will negatively affect the amount of her retirement pay and benefits, which will be based in part upon the number of retirement points Davis earned and the highest rank she achieved.
Upset by her adverse 1995/96 OER, her missing OERs for subsequent years, her hardship discharge and the potential negative impact of these events on her Reserve career and retirement, Davis appealed the 1995/96 OER and raised her other complaints to the appropriate review boards within the Reserves. Specifically, Davis sought to have the 1995/96 OER removed from her records by appealing to the Special Review Board of the Army Reserve Personnel Center (the "ARPERCEN Review Board") in March 2000, to the Army Board for Correction of Military Records (the "ABCMR") in September 2001, to the ARPERCEN Review Board for a second time in June 2002, and to the ABCMR for a second time in November 2003. Except for changing Davis' rank from captain to major, each of the review boards denied Davis relief.
The Army Reserve Personnel Center is referred to as the "ARPERCEN." Defendant's Local Civil Rule 56.1 Statement ("Def.'s 56.1 Statement") ¶ 26 n. 3, Docket Entry 14.
Davis now seeks this court's review of the ABCMR's final decision denying her appeal, claiming that the decision was arbitrary and capricious. Compl. ¶¶ 4, 11. Plaintiff is seeking an order (1) compelling the United States Army (the "Army") to expunge the 1995/96 OER from her records, (2) directing the Army to expunge the hardship discharge from her records and to credit her with the retirement point credits she would have earned at the twelve UTAs she missed during the hardship discharge, and (3) compelling the Army to place a memorandum in her personnel file providing that the absence of any OERs from 1996 to 2000 should not be attributed to her or held against her by any Army promotion board. Compl. ¶ 58.
The parties have filed cross-motions for summary judgment and United States District Judge Sandra L. Townes has referred them to me for report and recommendation. Docket Entry 23. Having reviewed the administrative record and considered the submissions of the parties, I respectfully recommend that defendant's motion for summary judgment be granted and that plaintiff's cross-motion for summary judgment be denied.
Facts
A. The Officer Evaluation Reporting System
The 1995/96 OER was generated pursuant to the Officer Evaluation System (the "OES"), which is designed to identify "officers who are best qualified for promotion and assignment to positions of higher responsibility" and to differentiate between those officers "who should be kept on active duty, those who should be retained in grade, and those who should be eliminated." Army Regulation ("AR") 623-105, ¶ 1-5(a). The Officer Evaluation Reporting System (the "OERS"), an "important subsystem" of the OES, is used to gather and record information about each officer's performance. AR 623-105, ¶ 1-6; Charette v. Walker, 996 F. Supp. 43, 46 (D.D.C. 1998). The OERS "largely determines the quality of the officer corps, the selection of future Army leaders, and the course of each officer's career." AR 623-105, ¶ 1-6(a). The primary function of the OERS is to provide information for use as a "basis for personnel actions," including promotion, elimination, retention in grade and assignment, and its secondary function is to "encourage officer professional development and enhance mission accomplishment." AR 623-105, ¶¶ 1-6(c), 1-6(d). To achieve the second objective, the OERS focuses on "sound senior/subordinate relationships" and "effective communication." AR 623-105, ¶ 1-6(d).
The complete text of AR 623-105 is attached to Davis' Affidavit as Exhibit M and to the Stipulation as Exhibit B, although the Stipulation states that AR 623-105 is attached as Exhibit C. Stipulation Agreed Upon by Both Plaintiff and Defendant ("Stip.") ¶ 14, Docket Entry 10.
The OES provides for each officer to be evaluated annually in an Officer Evaluation Report ("OER"). AR 623-105, ¶¶ 1-1(a), 1-5(b). See Charette, 996 F. Supp. at 46. The "evaluation process starts at the beginning of the rating period" when "the rated officer and rater have a face-to-face discussion of duties and objectives." AR 623-105, ¶ 2-2(a). The purpose of the meeting is to "develop a duty description for the rated officer and major performance objectives for him or her to accomplish during the rating period." AR 623-105, ¶ 2-2(b). A DA Form 67-8-1 is "used as a worksheet to record this discussion." AR 623-105, ¶ 2-2(a).
At the conclusion of the rating period, a rater and a senior rater prepare an OER for the rated officer. See AR 623-105, ¶¶ 3-6(g), 3-12(e); Charette, 996 F. Supp. at 46. The rater should be the officer "most familiar" with the rated officer's day-to-day performance for at least 90 calendar days during the rating period, or, with respect to Reserve officers like Davis, 120 calendar days during the rating period. AR 623-105, ¶¶ 3-4(a)(1), 7-6(f)(1). The rater is usually the rated officer's immediate supervisor. AR 623-105, ¶ 3-5(b). The senior rater is the senior official in the rated officer's "rating chain" and is charged with evaluating the rated officer from a "broad organizational perspective." AR 623-105, ¶ 3-10(a). A rating chain should "correspond as nearly as practical to the chain of command and supervision within an organization" and "ties the rated officer's performance to a specific senior-subordinate relationship" in order to "allow[] for the proper counseling to develop." AR 623-105, ¶ 3-1(a), (a)(1).
Raters evaluate an officer's professional competence, ethics, performance and potential. AR 623-105, ¶¶ 4-13, 4-14. See Charette, 996 F. Supp. at 46. The rater also provides written comments describing specific aspects of the rated officer's performance, including the rated officer's duty description, objectives and contributions, and may focus on "what ought to happen to the rated officer in the future, such as assignments and education." AR 623-105, ¶¶ 4-14(c)(3), 4-14(c)(5).
The senior rater evaluates the rated officer's potential in comparison to other officers of the same rank. AR 623-105, ¶ 4-16(b). This comparison is "based on the premise that in a representative sample of 100 officers of the same grade or grade grouping (Army-wide), the relative potential of such a sample will approximate a bell-shaped normal distribution pattern." AR 623-105, ¶ 4-16(b). Accordingly, of 100 officers of the same grade, "only one officer can reasonably be expected to be placed in the top block," two to three officers may be ranked in the second block, and so on. AR 623-105, ¶ 4-16(c); Cone v. Caldera, 223 F.3d 789, 791 (D.C. Cir. 2000). The majority of officers in a representative sample will be rated in the middle two blocks. AR 623-105, ¶ 4-16(c). (As discussed below, Davis was rated in the third of nine blocks in the 1995/96 OER.) The senior rater also provides written comments describing the rated officer's performance. AR 623-105, ¶ 4-16(d)(2). See Cone, 223 F.3d at 791.
B. Davis' Background in Nursing and History with the Reserves
Plaintiff Davis is a licensed and board-certified adult nurse practitioner and family nurse practitioner. Affidavit of Althea Davis ("Davis Aff.") ¶ 11, submitted in support of Plaintiff's Motion for Summary Judgment, Docket Entry 17. Davis earned a masters in nursing and a doctorate in nursing education from Columbia University. Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment ("Pl.'s Mem.") 4, Docket Entry 18; Davis Aff. ¶¶ 11, 15; Tr. 29, 44. In addition to her work at a clinical practice, Davis has served as an instructor, an assistant professor and an associate professor at a variety of universities and medical facilities. Tr. 29-34; Davis Aff. ¶ 17; Pl.'s Mem. 4. She has also published a book entitled Early Black American Leaders in Nursing: Architects of Integration and Equality and a number of articles related to the nursing profession. Tr. 35-36, 64-71; Davis Aff. ¶ 17; Pl.'s Mem. 4.
Citations to "Tr." refer to the certified transcript of the administrative record maintained by the ABCMR, Docket Entry 9.
Davis joined the Reserves as a captain in August 1989 and was assigned to the 1208th General Hospital, a part of the 8th Medical Brigade. Davis Aff. ¶¶ 2, 18-20; Tr. 4, ¶ 1. In January 1991, Davis was activated in support of Operation Desert Shield/Storm and was stationed at the Walter Reed Army Medical Center in Washington D.C. Davis Aff. ¶ 23; Pl.'s Mem. 4; Tr. 41. While on active duty, Davis served as the team leader and evening shift change nurse for a neurology ward, where she cared for wounded and ill service members who served in Kuwait and Saudi Arabia and where she supervised nurses and aides. Pl.'s Mem. 4; Tr. 41. Davis was honorably discharged from active duty in the summer of 1991 and received numerous awards for her service. Pl.'s Mem. 5; Davis Aff. ¶ 23; Tr. 41. Upon her return to Reserve status, Davis was again assigned to the 1208th General Hospital and participated in numerous missions, including a deployment to Honduras as a part of a humanitarian initiative which provided medical care to severely undernourished children and for which she received the Army Commendation Medal. Davis Aff. ¶ 21; Pl.'s Mem. 5.
Effective January 2, 1995, Davis was transferred from the 1208th General Hospital, which was deactivated as a part of an Army reorganization effort, to the 343rd Combat Support Hospital (the "343rd CSH"). Davis Aff. ¶¶ 20, 25, Ex. D. Later that year, Lieutenant Colonel Theo Foralis, Davis' supervisor at the 343rd CSH, orally directed Davis to report to the 8th Medical Brigade to help Lieutenant Colonel Hinds organize a healthcare professional symposium that was to be held in the spring of 1996. Davis Aff. ¶¶ 27-28. On April 11, 1996, Davis received orders officially attaching her to the 8th Medical Brigade. Davis Aff. ¶ 32, Ex. E.
The 8th Medical Brigade is "subdivided into various subordinate units," including numerous Combat Support Hospitals. Stip. ¶ 5. It is unclear from the parties' submissions, however, whether the 343rd CSH is in fact one of the 8th Medical Brigade's units, although the parties seem to imply that it is. See Davis Aff. ¶ 27 (describing Davis' movement from the 343rd CSH to the 8th Medical Brigade as reporting to the "higher headquarters"). But see http://www.globalsecurity.org/military/agency/army/8med-bde.htm (listing the 344th CSH and the 865th CSH, but not the 343rd CSH, as subordinate units to the 8th Medical Brigade).
According to Davis, although she was informally and then officially attached to the 8th Medical Brigade, she remained assigned to the 343rd CSH. Davis Aff. ¶ 32. Specifically, Davis claims she was never informed that her superiors in the 8th Medical Brigade would be completing her OERs because she never received either a change of rater OER or a rating chain identifying Lieutenant Colonel Hinds and Colonel Cupit, the officers assigned to the 8th Medical Brigade who completed the 1995/96 OER, as her raters. Davis Aff. ¶¶ 29-31, 36-37, 54; Pl.'s Mem. 5. According to Davis, she never participated in a meeting with Lieutenant Colonel Hinds at the beginning of the rating period as the regulations require, and never received a DA Form 67-8-1, which is the form to be filled out during the initial meeting. Davis Aff. ¶ 38. Davis also asserts that although she attended drills with the 8th Medical Brigade, she did not sign in on the 8th Medical Brigade's pay and attendance roster as a soldier drilling with her own unit is required to do, but instead submitted a DA Form 1380, which is used to indicate that a soldier attended a drill outside of her own unit, to the 343rd CSH. Davis Aff. ¶¶ 32-34. Finally, Davis points out that the orders directing her to attend her annual training periods for 1996 were generated by the 343rd CSH. Davis Aff. ¶ 35, Exs. F (including order dated May 2, 1996), and G (including order dated April 26, 1996).
The administrative record does not contain copies of Davis' completed DA Form 1380s, and Davis has not submitted them to this court.
Sometime between May 1996 and May 1997, Davis was relieved of duty at the 8th Medical Brigade and was reassigned to the 343rd CSH. See Davis Aff., Ex. H; Compl., Ex. U; Davis Aff. ¶ 58. Davis was promoted to the rank of major effective July 31, 1996, before the 1995/96 OER was prepared, and she remained with the 343rd CSH until she was reassigned in March 1999. Davis Aff. ¶ 2; Def.'s 56.1 Statement ¶¶ 42-43; Tr. 4, ¶ 2; 75.
Although Davis claims in her affidavit that she requested reassignment in 2000, Davis asserts in her Complaint that she was reassigned on March 12, 1999. Compare Davis Aff. ¶ 58 with Compl. ¶ 27 (citing to Exhibit H, which contains Davis' hardship discharge, not the reassignment order). More importantly, the administrative record includes an order dated March 12, 1999, reassigning Davis to the 452nd CSH, located in Milwaukee, Wisconsin, effective March 15, 1999. Tr. 75.
C. Davis' Previous OERs
Davis claims that "[f]rom the time of [her] commissioning until the time of the [1995/96] OER, [her] annual OERs were always excellent." Davis Aff. ¶ 24. The documentary evidence corroborates Davis' claim. In her November 1990 evaluation, for example, Davis received a "usually exceeded requirements" rating for her performance and a "promote with contemporaries" for her promotion potential, and was rated in the second of nine blocks; in Davis' June 1991 evaluation, her rater awarded her an "always exceeded requirements" rating for her performance and a "promote ahead of contemporaries" for her promotion potential, and her senior rater rated her in the second of nine blocks; and in Davis' March 1994, December 1994 and March 1995 evaluations, she was awarded an "always exceeded requirements" rating for her performance and a "promote ahead of contemporaries" for her promotion potential, and her senior rater rated her in the first of nine blocks. Davis Aff., Ex. C.
In their narrative comments, the raters and seniors raters who completed Davis' previous OERs described Davis in glowing terms and detailed her many accomplishments. For example, in Davis' June 1991 evaluation, her rater described her performance as "exceptional" and stated that Davis had been "a great asset to this unit," and her senior rater noted that Davis "performed with skill, dedication and much expertise;" in Davis' March 1994 evaluation, her rater described Davis as a "dedicated, enthusiastic, professional nurse and officer of unlimited potential" and as an "[e]xemplary soldier," and her senior rater wrote that Davis "performed with skill, dedication and a high level of expertise;" in Davis' December 1994 evaluation, her rater described Davis' performance as "exceptional" and her potential as "unlimited," and her senior rater stated that Davis "performed with an exceptionally high level of self-direction, skill, commitment, and much expertise;" and in Davis' March 1995 evaluation, her rater wrote that Davis was an "exceptional officer and one of the most outstanding officers in her rank" and urged that Davis be "immediately" assigned to a "higher level of responsibility," and her senior rater noted that Davis was an "exemplary member" of her unit who "demonstrate[d] the highest degree of motivation and professionalism." Davis Aff., Ex. C. See Pl.'s Mem. 6-8 (describing in greater detail the positive comments on Davis' performance and potential).
D. The 1995/96 OER
On August 12, 1997, Davis received the 1995/96 OER. The OER was prepared by Lieutenant Colonel Hinds as Davis' rater and Colonel Cupit as Davis' senior rater, and covered the period from November 4, 1995 to November 3, 1996. Def.'s 56.1 Statement ¶¶ 2-3; Tr. 4, ¶ 3; Davis Aff. ¶ 42, Ex. I. Hinds and Cupit completed the OER in January, 1997. Tr. 4, ¶ 3; Davis Aff., Ex. I.
Hinds gave Davis a "met requirements" rating (the third best of five categories) for her performance and a "promote with contemporaries" (the second best of four categories) for her promotion potential. Davis Aff., Ex. I; Def.'s 56.1 Statement ¶ 4; Tr. 4, ¶ 4. In her narrative comments, Hinds wrote that Davis "worked well with guidance," "demonstrated competence in all assigned tasks," and "accepted all tasks willingly and performed them satisfactorily," and stated that Davis had the "potential to function in and meet the requirements of the next higher grade." Davis Aff., Ex. I.
Cupit noted that Davis "did an excellent job in the objective development process and in tallying the evaluations" and possessed "extensive experience and skill in nursing education and research." Davis Aff., Ex. I. Cupit rated Davis "in the third of nine blocks," which the ABCMR characterized as "below the center of mass." Tr. 4, ¶ 5. See also Davis Aff., Ex. I; Def.'s 56.1 Statement ¶ 5. Although being rated in the third of nine blocks would seem to be an above average rating, the Army considers the rating relative to other rankings made by the same evaluator. More specifically, once a senior rater completes an OER, the Army compares the senior rater's evaluation of the rated officer's potential to the senior rater's rating history for all other officers of the same grade for the same rating period, and then determines how the particular rated officer performed in relation to the "center of mass," or the median ranking of officers of the same rank who were evaluated by the same senior rater. Cone, 223 F.3d at 791; AR 623-105, ¶¶ 2-5, 4-16(d)(5)(a).
In this case, it appears that for the rating period covered by the 1995/96 OER, Cupit rated one captain in the top block, five captains in the second block from the top and five captains in the third block from the top. See Tr. 82 (including the original 1995/96 OER before Davis' rank was changed to major); Davis Aff., Ex. I (including a revised version of the 1995/96 OER, indicating that Davis' rank was changed to major but still comparing Davis' rank to other captains rated by Cupit). Also, for the same rating period, Cupit rated one major in the top block, one major in the second block from the top and one major in the third block from the top. See Compl., Ex. F (including a revised version of the 1995/96 OER, indicating that Davis' rank was changed to major and comparing Davis' rank to other majors rated by Cupit). Therefore, although she was rated in the third of nine blocks, Davis was considered below the center of mass when compared to the other captains or majors rated by Cupit during the same rating period. See Cone, 223 F.3d at 791.
In the decision that Davis asks this court to review, the ABCMR described the 1995/96 OER as an "adverse report." Tr. 4, ¶ 3. The OER also listed Davis's rank as captain although she had been promoted to the rank of major before the 1995/96 OER was prepared. Pl.'s Mem. 9; Davis Aff., Ex. I; Def.'s 56.1 Statement ¶¶ 42-43; Tr. 4, ¶ 2.
The defendant claims that when Davis was asked to sign the OER, she refused to do so. Tr. 4, ¶ 3; Davis Aff., Ex. I; Def.'s 56.1 Statement ¶ 7. Davis asserts, however, that she saw only a draft of the OER and that the final 1995/96 OER was never presented to her. Compl., Ex. W at 7. Davis further contends that the report was not sent outside the 8th Medical Brigade until after August 12, 1997, in violation of Army regulations that plaintiff asserts require prompter distribution. Davis Aff. ¶ 55, Ex. I (indicating that the report was given to Davis on August 12, 1997).
Davis asserts that Hinds and Cupit rated her adversely because Hinds was jealous of her and Cupit was "thick as thieves" with Hinds. Pl.'s Mem. 9. Specifically, Davis hypothesizes that Hinds and Cupit resented Davis because Davis held a doctorate in nursing, a degree that neither Hinds nor Cupit had acquired. Davis Aff. ¶¶ 44-46. Davis also asserts that Hinds resented Davis' knowledge of how to organize a professional symposium and her past experience organizing numerous such symposia. Davis Aff. ¶ 47. According to Davis, her professional relationship with Hinds deteriorated, and Hinds failed to delegate authority, became overwhelmed by stress, yelled, threw temper tantrums and left abusive messages on Davis' answering machine. Davis Aff. ¶¶ 48-50. The relationship culminated in a final discussion between Davis, Hinds and Cupit, during which both supervising officers allegedly yelled at Davis and Cupit "became personally nasty." Davis Aff. ¶ 51.
E. The Missing OERs
Davis further alleges that despite her "numerous" requests, she did not receive another OER from 1996 to 2000, when she asked to be reassigned away from the 343rd CSH. Davis Aff. ¶ 58; Pl.'s Mem. 10. Davis also asserts that by letter dated October 1, 1998, Lieutenant Colonel Irmalinda Bernard enclosed a draft OER covering the period from November 4, 1996 to November 3, 1997 (the "draft 1996/97 OER") and a draft OER covering the period from November 4, 1997 to November 3, 1998 (the "draft 1997/98 OER"). Tr. 19, 84 (including letter from Lieutenant Colonel Bernard but no draft OERs). At the time, Davis complained that the draft 1996/97 OER and the draft 1997/98 OER were inaccurate, but Lieutenant Colonel Bernard allegedly failed to follow up on, finalize or submit the draft OERs. Tr. 19-21, 86-87.
In 2002 and 2003, the Reserve Components Selection Board considered Davis' application for promotion to the rank of lieutenant colonel. Tr. 6, ¶ 16. Davis claims that she was passed over for promotion because of the adverse 1995/96 OER and because there was a four-year gap in her subsequent OERs which left "the promotion board . . . no basis upon which to assess my performance as a major." Davis Aff. ¶ 62.
F. The Hardship Discharge
According to Davis, she was issued a hardship discharge effective March 24, 1997, although she had not requested one. Davis Aff. ¶ 57; Compl. ¶ 24, Ex. H; Pl.'s Mem. 10. Davis describes a hardship discharge as a leave "requested by [a] soldier when there is a family emergency that interferes with military service." Davis Aff. ¶ 56. Although Davis had already been reassigned to the 343rd CSH when the hardship discharge was issued, the order appears to have been issued by the 8th Medical Brigade. Pl.'s Mem. 10; Compl., Ex. H. Davis had a "strong suspicion" that it was Lieutenant Colonel Hinds who arranged for the hardship discharge to be issued. Davis Aff. ¶ 57.
A copy of the order allegedly issuing Davis a hardship discharge is attached as Exhibit H to the Complaint, not as Exhibit G to the Complaint as the Complaint indicates, Compl. ¶ 24, and not as Exhibit J to Davis' Affidavit as Davis indicates. Davis Aff. ¶ 57.
While out on the hardship discharge and before it was revoked, Davis missed twelve UTAs and therefore could not accumulate the retirement points she would have earned by attending those drills. Davis Aff. ¶ 57; Compl. ¶ 25; Pl.'s Mem. 10. As both parties stipulated, a Reserve officer "is entitled to a non-regular retirement entitling her to pay and benefits at age sixty when the officer completes a minimum of twenty qualifying years of service." Stip. ¶ 10. An officer must earn a minimum of 50 retirement points in a year for it to be a "complete retirement" or "qualifying" year. Stip. ¶ 11 (citing to AR 140-185). A Reserve officer earns 15 retirement points for each year of membership in the Reserves and an additional point for each four-hour drill period and each day of annual training that the officer attends. Stip. ¶ 11. Each year, a unit typically schedules 48 drill periods and one annual training period lasting 14 days. Stip. ¶ 11. The amount of retirement pay and benefits that a Reserve officer ultimately receives is based upon a calculation involving the number of retirement points earned and the highest rank achieved by the officer. Pl.'s Mem. 2. Accordingly, Davis' missed UTA's and corresponding missed retirement points may adversely impact her retirement pay and benefits.
The complete text of AR 140-185 is attached to the Stipulation as Exhibit C, see Stip., Ex. C, although the Stipulation states that it is attached as Exhibit B. Stip. ¶ 11.
G. Davis' Appeals within the Reserves
1. First Appeal to the ARPERCEN Review Board
On March 23, 2000, Davis appealed the 1995/96 OER to the ARPERCEN Review Board, arguing that the OER was "substantive[ly] inaccura[te]." Tr. 89, ¶ 2; Def.'s 56.1 Statement ¶¶ 8-9. See also Tr. 4, ¶ 6. Specifically, Davis argued that (1) the 1995/96 OER was rendered by the 8th Medical Brigade, where she was attached, but not by the 343rd CSH, where she was assigned, (2) because evaluations are due on an annual basis, the OER should have covered a one-year period beginning in January, and not from November 4, 1995 to November 3, 1996, (3) Hinds and Cupit "were never in [Davis'] published rating chain,"(4) the OER indicated that Davis was a captain, although she had previously been promoted to the rank of major, and (5) the 1995/96 OER should have been forwarded to the ARPERCEN within 90 days of the "thru" date, not nine months after the "thru" date. Tr. 89-90, ¶¶ 2-8; Def.'s 56.1 Statement ¶¶ 10-12.
Davis cites to AR 623-105, ¶ 5-5 in support of this proposition. Tr. 89, ¶ 4; Stip. ¶ 14. Paragraph 5-5 provides that an "annual evaluation report is mandatory on completion of [one] calendar year of duty following the 'Thru' date of the last report submitted under this regulation." AR 623-105, ¶ 5-5. However, if one year "has elapsed and the rated officer has not performed the same duty under the same rater for 90 calendar days, a report will not be submitted until the 90-day requirement is met." Id.
AR 623-105, ¶ 7-2(a) provides that "[c]ommanders will ensure that completed reports arrive at ARPERCEN not later than 90 calendar days after the 'Thru' date of the report. The importance of the OER to personnel actions, especially those concerning selection boards, makes it necessary that this 90-day suspense be met."
On June 12, 2000, the ARPERCEN Review Board denied Davis' appeal, applying a "clear and convincing" standard and concluding that the evidence Davis submitted was insufficient to justify "altering or withdrawing" the 1995/96 OER. Tr. 93, ¶¶ 1-2; Def.'s 56.1 Statement ¶ 13. The Board observed that Davis "provided no supporting statements from either rating official[s] or any [s]enior officers in [her] chain of command who might support [her] claims." Tr. 93, ¶ 3; Def.'s 56.1 Statement ¶ 14. In fact, the ARPERCEN Review Board determined that the documents submitted by Davis did not support her case and stated that "several of the orders seem[ed] fabricated to support [Davis'] attempt at redress." Tr. 93, ¶ 3. The Board did instruct, however, that "[i]f additional evidence is gathered, this would significantly increase the validity of [Davis'] appeal and could justify the Board's acceptance of [Davis'] request." Tr. 93, ¶ 4; Def.'s 56.1 Statement ¶ 15.
2. First Appeal to the ABCMR
By application dated September 6, 2001, Davis appealed to the ABCMR. Tr. 102-112; Def.'s 56.1 Statement ¶ 16. In her application, Davis sought (1) removal of the 1995/96 OER from her records; (2) placement of a statement in her file explaining that any gap in her record was due to no fault of Davis' but was a result of her unit's "negligen[ce]"; (3) placement of a statement in her file explaining that no Army promotion or retention board should draw a negative inference from any gap in her record; and (4) removal of any reference to a hardship discharge and crediting of the twelve UTAs that Davis missed before the hardship discharge was revoked. Tr. 103-104; Def.'s 56.1 Statement ¶¶ 17-18.
In a letter dated February 13, 2002, the ABCMR denied Davis' appeal, concluding that she had failed to exhaust her administrative remedies. Tr. 101; Def.'s 56.1 Statement ¶¶ 19-20. The ABCMR directed Davis back to the ARPERCEN Review Board, advising that she could there resubmit her application to remove the 1995/96 OER, this time supported by proper evidence, and raise as well her new request to place two specific statements in her record. Tr. 101; Def.'s 56.1 Statement ¶ 20. The ABCMR also denied Davis' request to remove any reference to the hardship discharge from her records, explaining that "a review indicates no record of the [hardship discharge] document" located in Davis' personnel records. Tr. 101.
3. Second Appeal to the ARPERCEN Review Board
By letter dated June 3, 2002, Davis submitted a new filing to the ARPERCEN Review Board. Tr. 11; Def.'s 56.1 Statement ¶ 21. Apparently disregarding the ABCMR's suggestion that she support her application with additional evidence, Davis resubmitted the paperwork she had prepared for her appeal to the ABCMR and requested the same relief. Tr. 11. Additionally, Davis contended that she "never saw a published rating chain," "was never informed as to who [her] rater and senior rater were" and "never had [a] face-to-face counseling [session]." Tr. 20; Def.'s 56.1 Statement ¶ 22.
By letter dated August 20, 2003, the ARPERCEN Review Board informed Davis that "the evidence [she] submitted [did] not justify withdrawing" the 1995/96 OER. Tr. 113; Def.'s 56.1 Statement ¶ 29. The Board concluded that Davis had "not presented convincing evidence indicating that there was bias or errors made concerning her OER, other than administrative errors." Tr. 116-17, ¶ 4; Def.'s 56.1 Statement ¶ 29. The ARPERCEN Review Board determined that "[t]here is no evidence that is clear and convincing enough to overcome the presumption of regularity to delete the OER" and "[t]here is no evidence that the rating chain failed to execute their designated responsibility to the rated officer." Tr. 117, ¶ 4(a)-(b); Def.'s 56.1 Statement ¶ 30.
The Board interviewed Cupit and Hinds by telephone before issuing its decision, and cited to their statements in support of its conclusions. See Tr. 115-18, ¶¶ 3(a)-(b), 4(c)(1)(a); Def.'s 56.1 Statement ¶ 31. In her interview, Cupit stated that Davis "arrived" at the 8th Medical Brigade in November of 1995 and not, as Davis claims, in April of 1996, that "it was not unusual for a soldier to report in and only to have the appropriate orders follow them months later," and that she (Cupit) had "made it clear that [Davis] knew who her supervisors were and to whom she reported." Tr. 115-16, ¶ 3(a); Def.'s 56.1 Statement ¶¶ 33-34. Cupit further asserted that "both she and the rater [Hinds] had regular contact" with Davis, and that she had "counseled [Davis] on her job performance on several occasions." Tr. 115, ¶ 3(a); Def.'s 56.1 Statement ¶ 32. Cupit also opined that it was not "unusual for it to take [two to three] months just to have a final OER draft typed, reviewed, corrected, signed and forwarded," especially in the 343rd CSH. Tr. 116, ¶ 3(a).
Hinds explained in her interview that she recruited Davis to help with the medical symposium "despite the warnings of some members of the 343[rd] CSH who said [Davis] would not do a good job." Tr. 116, ¶ 3(b). Hinds recalled that Davis reported for duty with the 8th Medical Brigade in November or December of 1995 and, like Cupit, stated that "it was not unusual for orders to follow" after an officer reported for duty. Tr. 116, ¶ 3(b); Def.'s 56.1 Statement ¶ 38. Hinds claimed that she and Cupit "personally went over the objectives of the symposium" with Davis and "made it clear whom [Davis] worked for" and that she "verbally counseled [Davis] throughout the rating period." Tr. 116, ¶ 3(b); Def.'s 56.1 Statement ¶¶ 37-38. According to Hinds, she and Cupit discussed the 1995/96 OER with Davis, who was "very upset" about the evaluation. Tr. 116, ¶ 3(b). Hinds further acknowledged that the 8th Medical Brigade, like other units in the Reserve, had "problems getting [OERs] processed in a timely manner." Tr. 116, ¶ 3(b).
The ARPERCEN Review Board concluded that Davis' "late attachment orders" and the "fact that the OER was not sent to ARPERCEN within 90 days" were both "administrative problem[s]" and "in themselves [did] not warrant removing" the 1995/96 OER from Davis' record. Tr. 118, ¶ 4(c)(1)(a); Def.'s 56.1 Statement ¶ 41. The Board did, however, conclude that there was "clear and convincing evidence" that Davis' "grade at the time the OER was prepared was major" and that this called for "an administrative change to the OER." Tr. 118, ¶ 4(c)(1)(a); Def.'s 56.1 Statement ¶¶ 42-43. With respect to Davis' remaining requests, including her application to have a statement added to her file explaining that any gap in her record was not her fault and should not be used against her by a promotion or retention board, the removal of any reference to a hardship discharge and the crediting of the twelve UTAs that Davis missed, the ARPERCEN Review Board determined that these issues were not within its "purview" and referred those items to ARPERCEN for decision. Tr. 118-19, ¶ 2; Def.'s 56.1 Statement ¶ 44.
4. Second Appeal to the ABCMR
On November 7, 2003, Davis appealed the ARPERCEN Review Board's decision to the ABCMR. Compl., Ex. R; Def.'s 56.1 Statement ¶ 45. In support of her appeal, Davis submitted papers nearly identical to those she prepared in support of her initial appeal. Compl., Ex. R at 1-11. Davis requested the same relief sought in her earlier applications, Def.'s 56.1 Statement ¶ 46, and further sought to "be promoted to the grade of Lieutenant Colonel." Compl., Ex. R at 5, 11.
On January 8, 2004, three members of the ABCMR met and considered Davis' appeal, which they denied by letter dated January 14, 2004. Tr. 1-2; Def.'s 56.1 Statement ¶¶ 47, 59. The Board concluded that Davis was not entitled to removal of the 1995/96 OER because she failed to meet her burden to "clearly and convincingly" demonstrate that she was entitled to this relief. Tr. 6, ¶ 19; Tr. 7, ¶¶ 1, 3; Def.'s 56.1 Statement ¶¶ 49-50. Although the ABCMR acknowledged that Davis "submitted strong argument[s] in support of [her] request," the Board concluded that Davis failed to demonstrate that the 1995/96 OER contained "any serious administrative deficiencies" or that the OER had "not [been] prepared in compliance with applicable regulations and policy." Tr. 7, ¶¶ 2-3; Def.'s 56.1 Statement ¶ 51. The Board also determined that the 1995/96 OER "appear[ed] to represent a fair, objective and valid appraisal of [Davis'] demonstrated performance and potential during the period in question." Tr. 7, ¶ 2. The ABCMR faulted Davis for failing to request a Commander's Inquiry, described as "an individual's available right and option concerning OER[]s perceived to be unfair or unjust," prior to the "finalization" of the 1995/96 OER and described Davis' appeal as a "dated case." Tr. 7, ¶ 3. The Board stated that a Commander's Inquiry would have provided a "concurrent investigation" and might have "made a difference based on the freshness of the rating with all involved in place." Tr. 7, ¶ 3. See AR 623-105, ¶ 5-30 (describing the requirements for a Commander's Inquiry).
The "primary purpose of the Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustice to the rated officer and correcting errors before they become a matter of permanent record." However, where an OER is already part of an officer's permanent record, the Commander's Inquiry is "not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record." AR 623-105, ¶ 5-30(a).
The Board also determined that Davis failed to submit sufficient evidence to warrant (1) the placing of a statement in her file explaining that she was not responsible for the gap in her record, (2) the removal of any reference to a hardship discharge, or (3) the crediting of the twelve UTAs that she missed during her hardship discharge. Tr. 8, ¶ 4; Def.'s 56.1 Statement ¶ 57. Regarding the hardship discharge, the ABCMR indicated that Davis' personnel records did not indicate that she had ever received a hardship discharge. Tr. 6, ¶ 15; Def.'s 56.1 Statement ¶ 58.
Discussion
A. Standards Governing Summary Judgment
When deciding a motion for summary judgment, a court must assess whether there are any genuine issues of material fact to be tried. Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991). A factual dispute is material if it "might affect the outcome of the suit under the governing law," and the dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). The court resolves any ambiguities and draws all reasonable inferences in favor of the nonmoving party. See Coach Leatherware Co., 933 F.2d at 167. However, "mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment," who must instead "set forth specific facts . . . showing a genuine issue exists for trial." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
To assist a court in deciding whether a party has raised a genuine issue of material fact, Local Civil Rule 56.1 requires the moving party to submit a concise statement of the material facts as to which the moving party claims that there is no genuine issue to be tried. Local Civ. R. 56.1(a). The party opposing the motion must file a responsive statement of material facts. Local Civ. R. 56.1(b). The opposing party's statement "shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party." Local Civ. R. 56.1(b). Furthermore, each statement of material fact "must be followed by citation to evidence which would be admissible" at trial. Local Civ. R. 56.1(d).
Defendant complied with the rule by filing a "Local Civil Rule 56.1 Statement" with its Notice of Motion and Memorandum of Law.See Def.'s 56.1 Statement. Plaintiff, however, failed to file a Local Rule 56.1 Statement and instead filed her own affidavit and an affirmation of her counsel. See generally Davis Aff.; Affirmation of Gary Port, counsel for plaintiff, submitted in support of Plaintiffs' Motion for Summary Judgment, filed as Docket Entry 17 ("Port Aff."). Both Davis' affidavit and Port's affirmation include factual allegations, but neither sets forth numbered paragraphs responding to each of defendant's statements as required by Local Civil Rule 56.1(b). Both Davis' affidavit and Port's affirmation do, however, cite to evidence which would likely be admissible at trial to support their contentions, including (1) Davis' resume; (2) OERs that Davis received prior to the 1995/96 OER; (3) various attachment, assignment and training orders; (4) the 1995/96 OER; (5) the ABCMR's decision on Davis' second appeal; and (6) the text of AR 623-105. Davis Aff., Exs. B-K, M.
Because plaintiff failed to submit a proper Rule 56.1 Statement, defendant seeks to have all of the material facts presented in its Rule 56.1 Statement deemed admitted. Defendant's Reply Mem. at 7. See Local Civ. R. 56.1(c) (providing that "[e]ach numbered paragraph in the statement of material facts . . . required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a corresponding numbered paragraph in the statement required to be served by the opposing party"). Although defendant's Local Civil Rule 56.1 Statement merely sets forth the essentially undisputed procedural history of Davis' appeals within the Army, I decline to deem all of defendant's statements admitted, preferring instead to analyze the substance of the motion and cross-motion for summary judgment in recognition of the law's preference for resolution of disputes on the merits. In any event, this case does not involve disputed facts but hinges instead upon the legal significance of a fixed administrative record, as the fact that the parties have filed cross-motions for summary judgment suggests. For the reasons set forth below, I conclude that there are no disputed genuine issues of material fact, and I recommend that defendant's motion for summary judgment be granted and that plaintiff's cross-motion be denied.
B. Standard of Review under the APA
Section 706(2)(A) of the APA provides that a court shall "hold unlawful and set aside agency action, findings, and conclusions" that the court finds to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). A court applying the arbitrary and capricious standard of review "may not assess the wisdom of an agency's choice; inquiry is limited instead to whether the Board has made a clear error of judgment." Falk v. Sec'y of the Army, 870 F.2d 941, 944-45 (2d Cir. 1989). Arbitrary and capricious review is "narrow" and "particularly deferential." Envtl. Def. v. United States E.P.A., 369 F.3d 193, 201 (2d Cir. 2004). Under the arbitrary and capricious standard, a court's task is "to determine whether the agency has considered the pertinent evidence, examined the relevant factors, and articulated a satisfactory explanation for its action including whether there is a rational connection between the facts found and the choice made." Gully v. Nat'l Credit Union Admin. Bd., 341 F.3d 155, 163 (2d Cir. 2003) (internal quotations omitted). See also Henley v. Food and Drug Admin., 77 F.3d 616, 620 (2d Cir. 1996).
The scope of review of decisions made by the military is especially confined; when reviewing a military decision pursuant to Section 706 of the APA, a court must afford the decision "increased deference." Falk, 870 F.2d at 945. Because Article III of the Constitution does not contain a "textual commitment to judicial supervision of military decisions," id., and because the military is a "'separate community' from civilian society," id. (quoting Orloff v. Willoughby, 345 U.S. 83, 94, 73 S. Ct. 534, 540 (1953)), "judicial deference in the military context 'is greater than [in] any other area.'" Id. (quoting Chappell v. Wallace, 462 U.S. 296, 301, 103 S. Ct. 2362, 2366 (1983)). This deference "is calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence." Cone, 223 F.3d at 793 (citingOrloff, 345 U.S. at 94, 73 S. Ct. at 540). This deferential standard of review is not, however, reason to provide no review at all or for the military's administrative agencies to dispose of matters with unrestricted power or unconditional authority.Id.; see also Crane v. Sec'y of the Army, 92 F. Supp. 2d 155, 164 (W.D.N.Y. 2000) (providing that "[a]lthough great deference is given to military decision making in general, courts do not abdicate their duty to review military actions which violate the military's own regulations"). Rather, as Davis points out, the "APA requires the Army, like any other agency, to follow its own administrative procedures," Crane, 92 F. Supp. 2d at 164 (citingSmith v. Resor, 406 F.2d 141, 145 (2d Cir. 1969)), and an "agency's failure to follow its own established procedures or regulations constitutes a violation of the APA." Id. (citingMiller v. Henman, 804 F.2d 421, 424 (7th Cir. 1986); Montilla v. I.N.S., 926 F.2d 162, 167 (2d Cir. 1991)). See Pl.'s Reply Mem. 2-3.
C. Standard of Review Applied by the ABCMR
AR 15-185 describes the ABCMR and its functions. See AR 15-185; AR 623-105, ¶ 9-5(f); Stip. ¶ 44. The ABCMR consists of "civilians regularly employed in the executive part of the Department of the Army [] who are appointed by the Secretary of the Army and serve on the ABCMR as an additional duty." AR 15-185, ¶ 2-1. With three members required for a quorum, the Board considers individual appeals, and "[i]n appropriate cases, it directs or recommends correction of military records to remove an error or injustice." AR 15-185, ¶¶ 2-1, 2-2(a). Because the ABCMR is not an "investigative body," its inquiry is limited to the "evidence of record." AR 15-185, ¶ 2-2(c). In its discretion, however, the ABCMR may hold a hearing or request additional evidence. AR 15-185, ¶ 2-2(c).
The complete text of AR 15-185 is attached to the Stipulation as Exhibit A, see Stip., Ex. A, although the Stipulation states that it is attached as Exhibit D. Stip. ¶ 44.
When reviewing Davis' request that the 1995/96 OER be removed from her records, the ABCMR applied AR 623-105, which "sets policies and procedures" for the OERS and "provides guidance on appealing evaluations." AR 623-105, ¶ 1-1(a). See Stip. ¶ 14; Tr. 6, ¶ 19. According to AR 623-105,
to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that (1) The presumption of regularity . . . should not be applied to the report under consideration. (2) Action is warranted to correct a material error, inaccuracy, or injustice.
AR 623-105, ¶ 9-7(a)(1)-(2). Clear and convincing evidence "must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy." AR 623-105, ¶ 9-7(b).
The "presumption of regularity" afforded to an OER is described in AR 623-105, ¶ 9-2(a)(1)-(3), which provides that an "evaluation report accepted for inclusion in the official record of an officer is presumed to (1) [b]e administratively correct, (2) [h]ave been prepared by the proper rating officials, and (3) [r]epresent the considered opinion and objective judgment of rating officials at the time of preparation." AR 15-185 similarly provides that the ABCMR "begins its consideration of each case with the presumption of administrative regularity." AR 15-185, ¶ 2-9. To overcome the presumption of regularity in a case involving claims of "inaccuracy or injustice of a substantive type," such as Davis' claims here, the " evidence must include statements from third parties, rating officials or other documents from official sources." AR 623-105, ¶ 9-7(d) (emphasis added). "Third parties" are defined as "persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period." AR 623-105, ¶ 9-7(d).
Davis appears to argue that, contrary to the plain language of the applicable regulations, she should not have been required to produce clear and convincing evidence in support of her claims.See Pl.'s Reply Mem. 1 (stating "the Government is incorrect that the standard to be used by the court is 'clear and convincing'"). As defendant points out, however, courts reviewing military decisions pursuant to the APA have consistently analyzed whether an applicant has met the burden of proof the regulations impose.See Jarrett v. White, No. Civ.A. 01-800-GMS, 2002 WL 1348304, at *6 (D. Del. June 17, 2002) (stating that the "plaintiff has the burden of proving arbitrary and capricious behavior by providing 'cogent and clearly convincing evidence'") (internal quotations omitted); Hoskins v. United States, 62 Fed. Cl. 209, 217 (Fed. Cl. 2004) (providing that a "plaintiff must present 'cogent and clearly convincing evidence' to prevail in a challenge to a military correction board decision") (internal quotations omitted). See also Def.'s Reply Mem. 5.
D. The ABCMR Decision
Having reviewed the administrative record and considered the ABCMR's denial of Davis' second appeal in light of the governing regulations described above, I conclude that the ABCMR decision was not arbitrary or capricious. To the contrary, the regulations make it clear that Davis failed to present sufficient evidence to justify the relief she seeks.
As defendant points out, the affidavits submitted by Davis in support of her cross-motion for summary judgment are not part of the administrative record and therefore may not be considered when reviewing the ABCMR's decision. In an appeal under the APA, the "scope of the court's review of agency action is confined to the full administrative record before the agency at the time the agency action was taken." Binghamton Gen. Hosp. v. Shalala, 856 F. Supp. 786, 792 (S.D.N.Y. 1994) (citing 5 U.S.C. § 706;Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20, 91 S. Ct. 814, 825 (1971)). See Cone, 223 F.3d at 795 (providing that "[b]ecause the affidavits were not part of the administrative record, we may not consider them on appeal"). This point is of little moment, however, because the facts asserted in Davis' affidavit and Port's affirmation are nearly identical to those alleged throughout Davis' administrative appeals.
In support of her appeal to the ABCMR, Davis submitted her written arguments from all four appeals, her resume, her attachment and assignment orders, and Lieutenant Colonel Bernard's letter regarding two draft OERs. Tr. 2, 16-25, 29-73, 75, 77, 79, 81-82, 84-87, 89-91, 93-94, 101-123. The ABCMR reviewed all of this pertinent evidence before rendering its decision. Its review also encompassed various documents contained in Davis' military personnel records, including the ARPERCEN Review Board's decision in Davis' first appeal, the ABCMR's decision in Davis' first appeal, and the ARPERCEN Review Board's decision in Davis' second appeal. The ABCMR also reviewed the evidence gathered and the findings made by the ARPERCEN Review Board in connection with Davis' second appeal, including the Board's interviews of Cupit and Hinds. See Tr. 5-6, ¶¶ 10-18. Davis failed to submit any statements from third parties in support of her second appeal to the ABCMR despite the requirements set forth in the applicable Army Regulations. See AR 623-105, ¶ 9-7(d).
Having reviewed the evidence in light of the governing regulations set forth in AR 623-105, the ABCMR concluded that Davis was not entitled to removal of the 1995/96 OER from her records. Tr. 6, ¶ 19; Tr. 7, ¶¶ 1, 3. The Board determined that Davis failed to demonstrate that the 1995/96 OER contained "any serious administrative deficiencies" or that the OER had "not [been] prepared in compliance with applicable regulations and policy," and stated that the 1995/96 OER "represent[ed] a fair, objective and valid appraisal of [Davis'] demonstrated performance and potential during the period in question." Tr. 7, ¶ 2. The ABCMR also concluded that Davis failed to submit "sufficient evidence to support" the placement of a statement in her file explaining that any gap in her record was due to no fault of her own but was a result of her unit's negligence. Tr. 8, ¶ 4. Regarding Davis' hardship discharge, the ABCMR indicated that Davis' personnel records did not "show" that she received a hardship discharge, and accordingly denied her request to remove any reference to a hardship discharge from her records and to credit her with the twelve UTAs that she missed during her hardship discharge. Tr. 6, ¶ 15; 8, ¶ 4. Each of these determinations is addressed below.
1. Removal of the 1995/96 OER
As discussed in greater detail above, Davis' primary contentions with respect to the 1995/96 OER are that it purported to cover several months before and after Davis was attached to the 8th Medical Brigade and that it was prepared by raters who supervised her for only a small portion of the rating period. Pl.'s Mem. 15. Army Regulations provide that a rater must supervise a Reserve officer assigned or attached to a troop program unit for a minimum of 120 calendar days before the rater can complete an OER for the officer. AR 623-105, ¶ 7-6(f)(1). Davis contends she was attached to the 8th Medical Brigade for a substantially shorter period of time. Pl.'s Mem. 17; Pl.'s Reply Mem. 5.
Although it seems odd that Davis did not receive her attachment orders until months after she began her work with the 8th Medical Brigade, the evidence in the administrative record supports the conclusion that Davis was attached to the 8th Medical Brigade for most of the rating period and, in any event, for more than the 120 days required by the applicable regulations. Cupit and Hinds, whose statements are part of the record, stated that Davis began working with the 8th Medical Brigade in November or December 1995. Both officers also opined that it was not unusual for official attachment orders to be created months after a soldier reported to a new unit. Tr. 115-16, ¶ 3(a)-(b). Even Davis acknowledged, although not in documents made part of the administrative record, that she was directed to report to the 8th Medical Brigade in either October 1995 or the "winter of 1995" to help Lieutenant Colonel Hinds organize a medical symposium. Compl., Ex. T at 1-2; Compl., Ex. W at 3; Davis Aff. ¶ 27.
The evidence in the administrative record also indicates that Hinds and Cupit were in fact plaintiff's supervisors during the time covered by the 1995/96 OER and that Davis knew it. As discussed above, Cupit stated that she made it clear to Davis who her supervisors would be and to whom she would be reporting. Similarly, Hinds reported that she and Cupit reviewed with Davis their objectives for the symposium Davis was to help organize, made it clear they would be supervising Davis, and verbally counseled Davis throughout the rating period. Moreover, in a memorandum dated October 29, 1996, Davis acknowledged that she had a face-to-face meeting with Lieutenant Colonel Hinds and Colonel Cupit during the summer of 1995 regarding the position of Coordinator of the 8th Medical Brigade Symposium. Compl., Ex. T at 1; Compl., Ex. W at 3. According to Davis, this meeting left her with "a clear understanding" that she would begin drilling with the 8th Medical Brigade in the fall of 1995, would learn the responsibilities of her new position by "working with and assisting" Lieutenant Colonel Hinds and "would assume the role" in the fall of 1996. Compl., Ex. T at 1.
As discussed above, the applicable regulations provide that evidence sufficient to overcome the presumption of regularity afforded to military records "must include statements from third parties, rating officials or other documents from official sources." AR 623-105, ¶ 9-7(d). Davis, however, countered the statements made by Cupit and Hinds only with her own assertions and failed to submit any statements from third parties in support of her appeal. This is particularly surprising because, assuming Davis was not reporting to Cupit and Hinds and attached to their unit throughout the rating period, she must have been reporting to a different supervising officer in another unit. It seems logical to conclude that, under those circumstances, Davis would have submitted a statement from her actual other supervisor, and perhaps the other reserve officers who worked with her, confirming her assignment to a different unit for most of the rating period and describing the quality of her work there.
Davis also challenges the 1995/96 OER by claiming that it was prepared by a rater, Hinds, who was biased against her. Pl.'s Mem. 17. As discussed above, evidence of a personality conflict between a rated officer and a rating official "does not constitute grounds for relief" unless the rated officer "show[s] conclusively that the conflict resulted in an inaccurate and unjust evaluation." AR 623-105, ¶ 9-9(b)(2). Davis failed, however, to present any evidence from any other officer involved in the symposium she was assigned to help Hinds organize or from any officer otherwise in a position to comment on the quality of her work during the rating period.
According to the defendant, Davis did not raise her claim that Hinds was biased against her before the ABCMR, and this Court therefore may not consider the issue in its review of the ABCMR's decision. Def.'s Reply Mem. 13 (citing to Ry. Labor Executives' Ass'n v. United States, 791 F.2d 994, 1000 (2d Cir. 1986) (holding that "[i]t is beyond cavil that a petitioner's failure to assert an argument before an administrative agency bars it from asserting that argument for the first time before a reviewing court")). However, Davis did argue in her second appeal to the ARPERCEN Review Board and in her first and second appeal to the ABCMR that (1) she "ran afoul of the politics of the nursing profession" because of the inherent tension between "R.N. nurses and 'Doctor' nurses" and (2) Lieutenant Colonel Hinds "pos[ed]" as her rater. Tr. 18, 105; Compl., Ex. R at 3. Because she implied before the ABCMR that a personality conflict may have prompted Lieutenant Colonel Hinds to evaluate Davis as she did and because this issue is not dispositive, I address Davis' claim that Hinds created the 1995/96 OER as a result of the personal animus she allegedly harbored towards Davis.
In short, I conclude that the ABCMR reasonably concluded that Davis failed to "clearly and convincingly" demonstrate that Lieutenant Colonel Hinds and Colonel Cupit did not supervise Davis during the time covered by the 1995/96 OER, or that Hinds' rating was biased and inaccurate or unjust. The decision of the ABCMR rejecting Davis' appeal from the OER was therefore not arbitrary or capricious.
2. Placement of Statement that Missing OERs Should Not Be Held Against Davis
Davis contends that the ABCMR incorrectly denied her request to have her personnel records include a statement that any gap between OERs was not her fault. Pl.'s Mem. 19. Citing to numerous provisions of AR 623-105, Davis argues that Army Regulations do not place the burden of completing and submitting an OER on the rated officer, and that it is therefore unfair for the gaps between OERs to be held against her. Pl.'s Mem. 18.
According to Davis, the ABCMR erroneously concluded that the missing OERs were due to the "fault of petitioner." Pl.'s Mem. 18. In fact, the ABCMR simply determined that Davis had failed to submit "sufficient evidence to support" placement of the requested statement in her file. Tr. 8, ¶ 4.
Davis' argument is based upon a misreading of the applicable regulations. AR 623-105 provides that, at the conclusion of the rating period, the rated officer is generally responsible for verifying the administrative data in the OER, entering certain information, signing the OER and forwarding the OER to the rater. AR 623-105, ¶ 2-4(a). The rater subsequently completes the portions of the OER describing the rated officer's performance and potential. Id. at ¶ 2-4(c). The senior rater then evaluates the rated officer's potential and forwards the OER on for processing. Id. at ¶ 2-4(d). These provisions place responsibility on the rated officer to initiate the process of completing an OER for each year. Davis failed to produce any evidence that she fulfilled her obligations related to the missing OERs.
In support of her argument to the ABCMR, Davis submitted a letter from Lieutenant Colonel Bernard apparently enclosing a draft 1996/97 OER and a draft 1997/98 OER, although neither draft OER was included in the administrative record. Tr. 84. Davis also submitted a letter she drafted to Lieutenant Colonel Bernard, complaining that the draft 1996/97 OER and the draft 1997/98 OER amounted to "libel" because, among other reasons, neither Lieutenant Colonel Bernard nor Colonel Cupit supervised Davis for the requisite amount of time. Tr. 86-87. Davis alleges that despite her "repeated requests and complaints," Lieutenant Colonel Bernard failed to follow up on, finalize or submit the draft OERs. Tr. 21. Once again, plaintiff offered no evidence in support of her position other than her own statements. Thus, the ABCMR's decision not to place the statement Davis requested in her file was not arbitrary or capricious.
3. Removal of Reference to Hardship Discharge
Finally, Davis sought an order from the ABCMR directing the Army to expunge the alleged hardship discharge from her records and to credit her with the retirement point credits that she would have earned at the twelve UTAs that she missed during the hardship discharge. Compl. ¶ 58(b). However, the ABCMR found that Davis' personnel records did not "show" that she received a hardship discharge, and it therefore follows that there was nothing to expunge. Tr. 6, ¶ 15. This finding is consistent with plaintiff's acknowledgment that the hardship discharge was revoked. Compl. ¶ 25. Plaintiff also concedes that she did not attend the training sessions for which she seeks credit. Id. It hardly seems arbitrary for the ABCMR to refuse to credit Davis for training she did not receive, even if the reason she did not receive the training may not have been her fault.
Conclusion
For the reasons stated above, I respectfully recommend that defendant's motion for summary judgment be granted and that plaintiff's cross-motion for summary judgment be denied. Any objections to the recommendations in this report must be filed with the Clerk of the Court and the Chambers of the Honorable Sandra L. Townes within ten days of receiving this Report and Recommendation, and in any event, no later than June 2, 2006. Failure to file timely objections may waive the right to appeal the District Court's Order. See 28 U.S.C. § 636(b)(2); Fed.R.Civ.P. 6(a), 6(e), 72; Small v. Secretary of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).