Stoneburner v. Secretary of the Army

• Decision Date: 08 September 1998
• Docket Number: No. 97-50765,97-50765
• Citation: 152 F.3d 485
• Parties: William D. STONEBURNER, Lieutenant Colonel, Plaintiff-Appellant, v. SECRETARY OF THE ARMY; Army Board for Corrections of Military Records, Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 485

152 F.3d 485

William D. STONEBURNER, Lieutenant Colonel, Plaintiff-Appellant, v. SECRETARY OF THE ARMY; Army Board for Corrections of

Military Records, Defendants-Appellees.

No. 97-50765

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 8, 1998.

Rehearing Denied Nov. 6, 1998.

William D. Stoneburner, Belton, TX, pro se.

Kurt Joseph Bohn, Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before DUHE, DeMOSS and DENNIS, Circuit Judges.

PER CURIAM:

William D. Stoneburner, a Lieutenant Colonel in the United States Army Reserve, appeals the grant of summary judgment dismissing his challenge to an Army Board for Correction of Military Records' ("ABCMR") decision. Stoneburner sought to have the evaluations submitted by his rating officers removed from his Officer Evaluation Report ("OER"). He alleges that the ABCMR's denial of his request was arbitrary and capricious, an abuse of discretion, and unsupported by substantial evidence. He also alleges that the Army's evaluation procedures violate the Equal Protection Clause. We affirm.

I. BACKGROUND

While on active duty at Fort Hood, Texas, Stoneburner underwent a routine performance and promotion potential evaluation covering the period from June 1, 1986 through May 31, 1987. He was evaluated by the rater, Lt. Colonel Ronald W. English,("English") and by the senior rater, Colonel Lawrence C. Richardson ("Richardson"). Richardson became Stoneburner's commander and senior rater March 2, 1987. From that date through May 28, 1987, his last day of active duty at Fort Hood, Stoneburner was in a nonrated status ¹ for 53 days and was absent from observation another 12 days.

To qualify as a senior rater, AR 623-105, p 3-10(b)(1) requires that the senior rater serve in that capacity for a minimum of 60 calendar days, without regard to the rated officer's rated or nonrated status. The rater, however, qualifies to evaluate the rated officer only if the rated officer remains in a rated status at least 90 days during the rating period. AR 623-105, p 4-10(c)(3). Richardson had 88 days, including both rated and nonrated days, to observe and evaluate Stoneburner; English also qualified as an evaluator, having observed Stoneburner for at least 90 rated days before rendering his report.

English rated Stoneburner favorably, giving him the highest ratings for performance and professionalism and described his performance and potential as "always exceed[ing] requirement." He commented that "LTC Stoneburner has performed his duties as Operations and Training Officer in an exemplary manner.... LTC Stoneburner is a fine U.S. Army Reserve Officer and has demonstrated his ability to serve on active duty with the competence to make a professional contribution." He recommended, however, that Stoneburner be promoted with his contemporaries, not ahead of them. He also recommended that Stoneburner be continued in the U.S. Army Reserve when he reached his mandatory release from active duty.

Richardson, the senior rater, assigned Stoneburner a mediocre rating in potential, two ranks lower than other lieutenant colonels whom he evaluated at the same time. He added the following narrative comments to that section of the OER:

Fully concur with rater's comments. During my observation of LTC Stoneburner's performance he has demonstrated a very capable ability to plan, schedule, and coordinate Reserve Component training. He is a good staff officer and consistantly [sic] meets the standards of Lieutenant Colonel on active duty and should continue to serve at that level on a higher headquarters staff where he can make significant contributions to the mobilization and training readiness of Reserve Component units.

After receiving the OER, Stoneburner requested a "Commander's Inquiry" to correct alleged errors and injustices in the report. Administrative errors were corrected and the Commander, Lt. General Crosbie Saint, determined that those errors did not invalidate the report. He further determined that the senior rater evaluation and comments were not illegal because Richardson was technically qualified to perform the rating. He did question the fairness of an evaluation by a senior rater who had had only a minimum observation period rather than an evaluation completed by the longer-serving departing senior rater.

Stoneburner next appealed to the Officer Special Review Board ("OSRB"), requesting that the OER senior rater portion be deleted because the evaluation was unjust and illegal. In an OSRB interview, Richardson acknowledged that he had placed Stoneburner at the low end of his personal senior rater profile. He insisted, however, that the ranking was appropriate, based on his observations and review of Stoneburner's work. He viewed the OER results as fair, accurate, and objective. The OSRB found no basis for making an exception to the regulatory policy that determines a senior rater's eligibility. It further concluded that Stoneburner had not provided clear and convincing evidence to justify a deletion or amendment to the OER.

Stoneburner appealed a second time to the OSRB, raising essentially the same allegations. The OSRB contacted the rater, English, who reported that Stoneburner's performance over the last five to six months of the rating period had deteriorated significantly. He cited "a bad attitude" and noted that Stoneburner "did not want to come to work and, when he did, his appearance did not represent what was expected of a field grade officer."

In a second interview, Richardson stated that because of his limited access to Stoneburner, he had "based much of his impression of the appellant's performance and potential on comments from the previous SR [senior rater] during their two week overlap when the SR 'sized-up' the appellant and other personnel." Richardson further explained that he had personally prepared his own OER comments and, because he did not see Stoneburner as having potential for promotion to full colonel, he had rated him accordingly.

The OSRB denied this second appeal, again finding that Stoneburner had failed to provide clear and convincing evidence to justify the deletion or amendment of the OER. It did not address Stoneburner's constitutional challenge to AR 623-105; it did determine, however, that the senior rater had adequate information available to prepare his portion of the OER. The OSRB further found that the rater's evaluation was not contradictory or ambiguous.

Stoneburner's third appeal was to the Army Board for Corrections of Military Records. The ABCMR concluded, inter alia, that the OER did not meet the criteria to be classified as a referred report. ² It found that the senior rater had met the minimum time in the position necessary to provide an evaluation. It further found that Stoneburner's due process claim was not supported by the record because the applicable administrative procedures had been followed. It determined that the OER appeared to "represent a fair, objective and valid appraisal of [Stoneburner's] demonstrated performance and potential during the period in question." In making its decision, the ABCMR obtained an advisory opinion from the OSRB. The OSRB found for the third time that Stoneburner had not provided clear and convincing evidence to support his contentions nor had he established that the OER met the AR 623-105 referral requirements. Thus the ABCMR determined that Stoneburner failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

Stoneburner appealed the ABCMR decision to the district court. He claimed that the ABCMR's decision was arbitrary, capricious, contrary to law, or unsupported by substantial evidence. His amended complaint alleged that the OER was erroneous, improper, and unjust because various provisions of AR 623-105 were disregarded. The Army moved for summary judgment, denying Stoneburner's allegations against the ABCMR.

Stoneburner filed a cross-motion for summary judgment. He attacked the constitutionality of the ABCMR decision and additionally argued that the ABCMR's refusal to classify the contested OER as a "referred" report was arbitrary and capricious. He pointed to Richardson's interview and statement that Stoneburner lacked the potential to be a full colonel in support of this contention. He also disputed the ABCMR's decision that the OER was not invalid. He again argued that Richardson was not eligible under AR 623-105, p 3-10(b)(1) to act as a senior rater. He contended that regulation's inclusion of non-rated time for qualification denied Richardson sufficient observation time for a just evaluation.

The district court granted the Army summary judgment. It determined that the ABCMR had the entire record before it in making its decision. It concluded that the record supported the ABCMR's determination that the OER should not have been classified as a referred report, and that Stoneburner failed to show that the ABCMR's decision to deny him relief was either arbitrary or capricious or that it was not based upon substantial evidence. The district court also determined that Stoneburner did not identify a protected property interest and so did not establish the deprivation of either substantive or procedural due process. Finally, the district court concluded that Stoneburner had not identified the manner in which he had been denied equal protection.

Stoneburner moved for reconsideration of the classification of the OER as a referred report. He also requested that the court clarify whether it had determined that AR 623-105 violates the Equal Protection Clause because it permits an officer to be rated by a senior rater who may have less than 60 days of rated time within which to observe and evaluate the rated officer. The district court denied the motion. Stoneburner appeals.

II. DISCUSSION

A. Standard of Review

This court reviews a district...