Remy v. Air Force Board for Correction of Military Records

701 F. Supp. 1261, 1988 U.S. Dist. LEXIS 14449, 1988 WL 136608
CourtDistrict Court, E.D. Virginia
DecidedDecember 14, 1988
DocketCiv. A. No. 88-0395-A
StatusPublished
Cited by3 cases

This text of 701 F. Supp. 1261 (Remy v. Air Force Board for Correction of Military Records) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Remy v. Air Force Board for Correction of Military Records, 701 F. Supp. 1261, 1988 U.S. Dist. LEXIS 14449, 1988 WL 136608 (E.D. Va. 1988).

Opinion

MEMORANDUM OPINION

ELLIS, District Judge.

Introduction

In this appeal from administrative action, plaintiff contends he fell victim to an arbitrary and capricious Air Force promotion process. As a result, he claims he was unfairly and illegally denied promotion to the rank of Lieutenant Colonel. He seeks here the remedy twice denied him below by the Air Force Board for Correction of Military Records (AFBCMR): upgrading of certain performance reports or, alternatively, their removal from the record, and reconsideration by the Air Force of the question of whether he should be promoted to Lieutenant Colonel. Only a full recitation of the facts — which are essentially undisputed — will adequately illuminate the issues raised by plaintiff’s claim.

Facts

Plaintiff, Thomas J. Remy, is a retired Air Force officer. He was commissioned as a second lieutenant in the Air Force Reserve in December, 1967. In September, 1970, he was integrated into the regular Air Force. Remy served continuously on active duty from the date of his commissioning until his retirement. During this period, he was progressively promoted from second lieutenant to the permanent rank of major. Remy was first considered, but not selected, for advancement to the rank of Lieutenant Colonel by a promotion board which convened on July 26, 1982. Three subsequent promotion boards, from 1983 to 1985, also declined to select Remy for promotion. He retired with the permanent rank of major.

Defendant AFBCMR is an administrative board established within the Department of the Air Force pursuant to 10 U.S.C. § 1552(a). As Section 1552 provides, correction of military records is a function of the service Secretary who acts through a board of civilian employees of the executive part of the service department. Correction [1264]*1264of records is appropriate in those circumstances where it is necessary “to correct an error or remove an injustice.” 10 U.S.C. § 1552(a). Here, as the Air Force is the service involved, the appropriate board of civilians is AFBCMR. Initially, AFBCMR was the sole defendant. To eliminate any issue concerning whether plaintiff had named the proper defendant,1 the Court entered an agreed Order submitted by the parties adding the Secretary of the Air Force as a party defendant.

As noted, this appeal grows out of the Air Force’s decision not to promote Remy. Remy claims this occurred as a result of unfair and arbitrary and capricious ratings he received on certain Officer Effectiveness Reports (OERs). Hence, it is important to understand in some detail what OERs are and the regulations or policies that governed their completion at the times in issue. OERs are periodic evaluations of an officer’s performance and fitness for promotion. Until 1975, evaluations of an officer were completed by a “rater,” the subject officer’s immediate superior. These evaluations were in turn reviewed by an “endorser,” usually the rater’s immediate superior officer. Under this pre-1975 system, only the rater graded the subject officer; the endorser reviewed the rater’s work, but did not independently rate the officer under review. In the event an endorser disagreed with a rater, he or she merely noted this in the narrative comments.

This pre-1975 system used a two-digit rating system. The first digit represented a grade for overall performance and the second an assessment of promotion potential. The overall performance rating scale ranged from 0 to 9, the former signifying “unsatisfactory” performance and the latter “outstanding” performance. Appropriate qualitative descriptions existed for each of the numbers between 0 and 9. For example, a rating of 8 signified “exceptionally fine” performance. Promotion potential was measured on a smaller scale: 1 to 4, with a one awarded to those officers who “did not demonstrate any capability for promotion,” a two awarded to those recommended for promotion along with their contemporaries, a three for those demonstrating the capacity for promotion “ahead of contemporaries,” and a four for those meriting promotion “well ahead of contemporaries.” Thus, the highest rating one could earn, a “9/4,” signified outstanding performance and promotion potential well ahead of contemporaries. An “8/8,” the next step down on both scales, reflected exceptionally fine performance warranting promotion ahead of contemporaries. From 1969 until the system changed in 1975, Remy received the following ratings:2

January 1969 8/3
July 1969 9/4
October 1969 9/4
February 1970 9/4
July 1970 8/3
January 1972 9/4
July 1972 9/4
January 1973 9/4
July 1973 9/4
February 1974 9/4
May 1974 9/4
January 1975 8/3

In 1975, the Air Force changed its rating system.3 The new system called for three major changes. First, it used three levels of evaluation: a “rater,” a “second rater” and a “reviewer.” All three were required to evaluate the subject officer. The second change was a new, single overall rating scale ranging from 1 to 6, with one being [1265]*1265the highest rating available and six the lowest. Since all three — the rater, second rater and reviewer — were required to render an evaluation, each subject officer received a three-digit evaluation. Thus, a “1-1-1” OER means the officer received the highest rating from each member of the rating group. A “1-2-3” indicates the rater thought the subject officer worthy of the highest rating, while the second rater concluded he or she deserved the second highest rating and the reviewer awarded only the third highest rating.

The third major 1975 change is the genesis of this case. The Secretary, by regulation, imposed a quota on the top ratings. He did so, it appears, to control and remedy a serious ratings inflation problem that “had eroded the effectiveness of the OER as a management tool.” AF 36-10, Chapt. 6, § 6.1(a). The quotas imposed were straightforward. Of the officers being evaluated in a command, only 22% could receive a “1” and only 28% could receive a “2.” Thus a rating of “3” or below automatically consigned the subject officer to the bottom half of the evaluated group. This quota system was commonly referred to as the “controlled OER system.” The system imposed the quotas only on “reviewers” and “control points,”4 not on raters and second raters. Another significant, but unofficial, aspect of the controlled OER system was the use of seniority or time in grade as the principal factor in distributing the limited number of top ratings. The regulations neither permitted nor proscribed this ratings allocation practice; they were silent on this issue. Yet not surprisingly, perhaps, the practice was promptly engrafted onto the controlled OER system. Certainly it was used by the reviewer and second rater in this case. Apparently it was widely used. This is understandable. Those closest to promotion had the greatest need for the top ratings.

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

Related

Clark v. Kendall, III
E.D. Virginia, 2024

Cite This Page — Counsel Stack

Bluebook (online)
701 F. Supp. 1261, 1988 U.S. Dist. LEXIS 14449, 1988 WL 136608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/remy-v-air-force-board-for-correction-of-military-records-vaed-1988.