Rebosky v. United States

60 Fed. Cl. 305, 2004 U.S. Claims LEXIS 101, 2004 WL 904737
CourtUnited States Court of Federal Claims
DecidedMarch 4, 2004
DocketNo. 03-766C
StatusPublished
Cited by17 cases

This text of 60 Fed. Cl. 305 (Rebosky v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rebosky v. United States, 60 Fed. Cl. 305, 2004 U.S. Claims LEXIS 101, 2004 WL 904737 (uscfc 2004).

Opinion

OPINION

FIRESTONE, Judge.

This military pay case comes before the court on the parties’ cross-motions for judgment upon the administrative record pursuant to Rule 56.1 of the Rules of the United States Court of Federal Claims (“RCFC”). The plaintiff is a former officer in the United States Army (the “Army” or “government”) who was involuntarily separated with an Honorable Discharge upon recommendation from an administrative Board of Inquiry (the “Board”). The plaintiff argues that his discharge was arbitrary, capricious, contrary to law or regulation, or unsupported by substantial evidence, and therefore seeks reinstatement to active duty, expungement of his separation from his military record, and back pay. The government responds that the decision to discharge the plaintiff from the Army should be affirmed because the decision was not arbitrary, capricious, contrary to law or regulation, and is supported by substantial evidence. For the reasons stated below, the court DENIES the plaintiffs September 24, 2003 cross-motion for judgment upon the administrative record and GRANTS the government’s July 29, 2003 cross-motion for judgment upon the administrative record.

BACKGROUND

The plaintiff is a former captain in the Army. He enlisted in 1987 and was a second lieutenant in 1988 when he was placed on the Temporary Disability Retirement List [307]*307(“TDRL”) due to injuries sustained during training. After more than two years on the TDRL, the plaintiff was returned to active duty. As an officer, the plaintiff received an Officer Evaluation Report (“OER”) either after a year in an assignment or after completing a particular assignment, whichever period was shorter. In 1991 the plaintiff was sent to Korea where his duty was to maintain “the platoon in a combat ready status capable of transitioning to war quickly” and to be responsible for “the welfare, training, and tactical employment” of soldiers. OER, March 1992, Administrative Record (“AR”) at 18. The OER stated that the plaintiff does “not display the level of proficiency expected of an officer of his grade and experience.” Id. He also received a below average rating in comparison to his peers.1 The plaintiffs rater determined that he was below center of mass; this is, in effect, a determination that he was below average. Id. In addition, the plaintiff was third blocked along with two other officers, while sixty-one other officers all received first or second block ratings. OER, March 1992, AR at 19. This means that the plaintiffs rater determined that the plaintiff performed more poorly than at least sixty-one out of sixty-five of his peers.

After his service in Korea ended, the plaintiff was sent to Fort Benning, Georgia during which time his duties included “assisting the Commander in advising the International Student Training Detachment staff in solving academic, administrative, and personal problems.” OER, May 1993, AR at 26. During his service at Fort Benning, the plaintiff was promoted to captain. The plaintiffs OER for the period of March 6,1992 through May 20, 1993 was favorable. The senior rater noted a “[sjuper job by a mature, competent, and professional officer.” OER, May 1993, AR at 27.

Thereafter, the plaintiff attended the Infantry Officer Advanced Course 5-93 from May 21, 1993 through April 2, 1994. The plaintiff was next assigned to the position of instructor at the Army Chaplain Center and School at Fort Monmouth, New Jersey (“Chaplain School”), where his duties included teaching “all tactical common core subjects and general soldier proficiency skills” as well as “planning, coordinating, and conducting ... field training exercises.” OER, October 1994, AR at 28. The plaintiffs OER for the eight month period from May 2,1994 through October 10, 1994 was not positive. The initial rater stated that the plaintiff “[djoes not display the initiative or discipline required to lead troops.” Id. The senior rater concurred, stating that “Captain Rebosky’s duty performance consistently fluctuated between unsatisfactory and marginal.... I can not imagine him commanding soldiers.” OER, October 1994, AR at 29.

Following his job as an instructor in Fort Monmouth, the plaintiff served in Haiti during which time he was responsible for the “creation and sustainment of a functional operations center” during a military operation there. OER, January 1995, AR at 32. His OER for the period that he was in Haiti, between October 22, 1994 and January 27, 1995, was favorable. He was identified by his initial rater as “[cjlearly a top performer with unlimited potential.” OER, January 1995, AR at 33. The senior rater concurred and stated that “Captain Dave Rebosk/s performance as J3 Battle Captain has been absolutely superb!” Id.

Finally, the plaintiff was returned to Fort Monmouth as a Supply Officer, where his duties included the operation of the Fort’s supply system. The OER for the period between January 28, 1995 and June 29, 1995 stated that “CPT. Rebosky has performed to standard.” OER, June 1995, AR at 35. The senior rater stated that “CPT Rebosky provided expertise in supply and company administration. This expertise in training greatly supported our headquarters company annual pistol and rifle qualification training____Send this officer to CAS3 and assign [308]*308to troops.” Id. He was then given a “third block” rating. Id.

The plaintiff had the opportunity to appeal, and in some instances did appeal, these OERs. A request to reconsider an officer’s OERs is authorized only if the officer has new evidence to present to the Army. Memorandum from Larsen, Chief, Appeals and Corrections Branch, Department of the Army to Rebosky of 11/5/93, AR at 25. Since the plaintiff did not present any new evidence to the Army when appealing, all of his appeals were denied. Id.

Soon after the plaintiff received his last OER in 1995, the Army initiated elimination proceedings against him. In accordance with the administrative procedures available to him, the plaintiff attempted to rebut the initiation of the proceeding to eliminate him from the Army. In his letter to the Commander, U.S. Total Army Personnel Command, the plaintiff presented, in essence, the same arguments that he has presented to the court. Letter from Rebosky to Commander, U.S. Total Army Personnel Command of 12/2/96, AR at 38. In particular, the plaintiff argued that the OER for the period ending March 1992 was not indicative of his skill level because he was rated after a long period of inactivity due to injury. In any event, the plaintiff argued that the negative aspects of this OER could not be properly considered since the plaintiff was promoted to captain despite the OER’s comments. The plaintiff next contended that his OERs for the periods ending October 1994 and June 1995 were not valid because he was rated by chaplains rather than by line officers. Finally, the plaintiff argued that his negative OERs were retaliatory, both for personality conflicts that he had with superiors and for reporting misconduct to the Inspector General’s office. In response to his rebuttal, the Army referred his case to the Board, which was convened on June 9,1997. AR at 42.

The Board convened to determine whether the plaintiff should be separated from the Army.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dresen v. United States
Federal Claims, 2017
Brass v. United States
120 Fed. Cl. 157 (Federal Claims, 2015)
Hatmaker v. United States
117 Fed. Cl. 560 (Federal Claims, 2014)
Wollman v. United States
116 Fed. Cl. 419 (Federal Claims, 2014)
Ocean Ships, Inc. v. United States
115 Fed. Cl. 577 (Federal Claims, 2014)
Nathan T. Meidl v. United States
114 Fed. Cl. 607 (Federal Claims, 2014)
Preferred Systems Solutions, Inc. v. United States
110 Fed. Cl. 48 (Federal Claims, 2013)
Banerjee v. States
77 Fed. Cl. 522 (Federal Claims, 2007)
Santiago v. United States
75 Fed. Cl. 649 (Federal Claims, 2007)
Interspiro, Inc. v. United States
72 Fed. Cl. 672 (Federal Claims, 2006)
Levine v. United States
Federal Circuit, 2006
Matthew E. Levine v. United States
453 F.3d 1348 (Federal Circuit, 2006)
Lechliter v. United States
70 Fed. Cl. 536 (Federal Claims, 2006)
Loomis v. United States
68 Fed. Cl. 503 (Federal Claims, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
60 Fed. Cl. 305, 2004 U.S. Claims LEXIS 101, 2004 WL 904737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rebosky-v-united-states-uscfc-2004.