                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
MAURICE B. PETTIFORD,               )
                                    )
                        Plaintiff,  )
                                    )
            v.                      )                Civil Action No. 05-2082 (ESH)
                                    )
SECRETARY OF THE NAVY,              )
                                    )
                        Defendant. )
____________________________________)


                                 MEMORANDUM OPINION

       Plaintiff Maurice B. Pettiford, a retired Gunnery Sergeant (pay grade E-7) in the United

States Marines Corps, brings this action under the Administrative Procedure Act, 5 U.S.C. § 701,

et seq., against the Secretary of the Navy, seeking review of the May 18, 2010 decision of the

Board for Correction of Naval Records (“BCNR” or “Corrections Board”).1 That decision

denied plaintiff’s petition challenging the May 8, 2010 Enlisted Remedial Selection Board’s

(“ERSB” or “Remedial Selection Board”) decision not to recommend plaintiff for remedial

promotion to Master Sergeant or First Sergeant (pay grade E-8) as of Calendar Year 1999.

       Plaintiff seeks an order setting aside both decisions and directing the Secretary of the

Navy to correct his record to show that he was promoted to pay grade E-8 as of 1999. In the

alternative, he seeks an order remanding the case for further proceedings before either the

Remedial Selection Board (if both decisions are set aside) or the Corrections Board (if only that


       1
         To simplify matters, the Court will refer to the decision of the BCNR, although “the
final agency action under review is the decision of a designated representative of the Secretary of
the Navy approving the recommendation of the BCNR.” See Piersall v. Winter, 435 F.3d 319,
320 n.* (D.C. Cir. 2006).
decision is set aside). The matter is before the Court on defendant’s motion to dismiss or, in the

alternative, for summary judgment and plaintiff’s cross-motion for summary judgment. For the

reasons explained herein, plaintiff’s claim for remedial promotion will be dismissed, the May

18, 2010 decision of the BCNR will be set aside, and the case will be remanded to the BCNR for

further proceedings in accordance with this opinion.

                                         BACKGROUND

       The administrative record in this case is extensive and convoluted, but as plaintiff’s

Fourth Amended Complaint is limited to his contention that he should have been promoted to

either Master Sergeant or First Sergeant, pay grade E-8, retroactive to Calendar Year (“CY”)

1999 by the May 8, 2008 ERSB decision or the May 18, 2010 BCNR decision, only the facts and

procedural history that bear directly on that claim are set forth herein.

       Plaintiff enlisted in the United States Marine Corps in May 1979. (Administrative

Record (“AR”) 138.) By 1990, he had attained the rank of Staff Sergeant, pay grade E-6.2

(Def.’s Statement of Facts ¶ 2, July 2, 2010 [“Def.’s Facts”].) In 1993, 1994, and 1995, the

regularly scheduled Staff Noncommissioned Officer Selection Board considered but did not

recommend plaintiff for promotion to Gunnery Sergeant, pay grade E-7 (Def.’s Facts ¶ 2), but

the 1996 Selection Board did promote him. (Def.’s Facts ¶ 6; 4th Amended Compl. ¶ 10 [“4th

Compl.”].) In 2000 and 2001, the regular Selection Board considered but did not recommend




       2
        In the Marine Corps, staff noncommissioned officers are senior enlisted personnel in pay
grades E-6 through E-9. A Staff Sergeant is in pay grade E-6; a Gunnery Sergeant is in pay
grade E-7; both First Sergeants and Master Sergeants are in pay grade E-8; and both Master
Gunnery Sergeants and Sergeants Major are in pay grade E-9. (4th Compl. ¶ 5).

                                                  2
plaintiff for promotion to First Sergeant or Master Sergeant, both at pay grade E-8.3 (AR 269;

Def.’s Facts ¶ 10.) In June 2002, due to his failure to be promoted, plaintiff was involuntarily

retired from the Marines Corps. (AR 909; Def.’s Facts ¶ 20.)4

I.     PRE-LITIGATION ADMINISTRATIVE PROCEEDINGS

       On March 31, 1994, after failing to be promoted to Gunnery Sergeant by the regular

Selection Board, plaintiff petitioned the BCNR to have certain material relating to a 1992

disciplinary action removed from his file and, once the material was removed, for

reconsideration for promotion by the Remedial Selection Board. (AR 610.)

       As a general matter, the Remedial Selection Board, which is “constituted by authority of

the Commandant,” is “an advisory board that provides advice to the Commandant of the Marine

Corps on Staff Noncommissioned Officer remedial promotion cases.” (AR 341.) It is

“authorized to review all Marine enlisted personnel records referred to it for the purpose of

making recommendations concerning remedial promotion to the [Staff Noncommissioned

Officer] grades.” (AR 341.) The BCNR, which is composed of civilians appointed by the

Secretary of the Navy, “may correct any military record ... when [the Secretary of the Navy

acting through the Board] considers it necessary to correct an error or remove an injustice.” 10

U.S.C. § 1552(a).



       3
       At the E-8 paygrade, two positions are available for a Marine to be promoted, Master
Sergeant and First Sergeant. Both positions are the same paygrade and both are Senior Non-
Commissioned Officers. (AR 1089-90.)
       4
         Presently, plaintiff is assigned to the Fleet Marine Corps Reserve, a status held by
enlisted Marines who so desire from the time they complete 20 years of service until they are
transferred to the retired list upon completion of 30 years of service. 10 U.S.C. §§ 6330-31. He
is currently employed by the Department of State. (4th Compl. ¶ 1.)

                                                 3
       On December 12, 1995, the BCNR recommended that the Secretary grant full relief, and

on April 11, 1996, that recommendation was approved and the Secretary ordered the 1992

material redacted from plaintiff’s file. (AR 597-98.) On May 1, 1996, plaintiff requested

consideration for remedial promotion for 1993, 1994 and 1995. (AR 611-17.) It was while

plaintiff was awaiting a decision on that request that the 1996 regular Selection Board, with

plaintiff’s corrected record before it, promoted him, effective July 1, 1996. (AR 598-99.) On

June 27, 1996, however, the Remedial Selection Board decided not to recommend remedial

promotion. (AR 590; Def.’s Facts ¶ 5, 7; 4th Compl. ¶ 13.) On August 21, 1996, plaintiff

petitioned the BCNR for the same relief. (AR 591.) On March 18, 1997, the BCNR denied Mr.

Pettiford’s request to backdate his promotion to 1993. (AR 448.)

       In 2001, after the 2000 and 2001 regular Selection Boards had failed to promote him to

either First Sergeant or Master Sergeant, plaintiff discovered that an electronic document that

reflected the 1992 disciplinary action that the Corrections Board had previously ordered redacted

still remained in his record. (4th Compl. ¶ 13; Def.’s Facts ¶ 11.) Thus, plaintiff petitioned the

BCNR to request removal of this document. (AR 428-433.) He also requested that his

promotion to Gunnery Sergeant be backdated to 1993, and that the BCNR promote him to

Master Sergeant without referring him back to the Remedial Selection Board. (AR 428-33, 471.)

On May 30, 2001, the BCNR informed plaintiff that, effective May 23, 2001, all references to

plaintiff’s 1992 disciplinary infraction had been removed from the electronic version of his

record and, therefore, that he could seek remedial consideration “for all selection boards that

may have been affected” by the information. (AR 276, 422.) On July 2, 2001, plaintiff

submitted his request for remedial promotion to Gunnery Sergeant as of 1993 and, if granted,


                                                 4
remedial promotion to Master Sergeant for the appropriate year. (AR 274.)

       On August 29, 2001, the Remedial Selection Board recommended that plaintiff be

remedially promoted to Gunnery Sergeant as of November 1, 1994, a recommendation that was

approved on August 31, 2001. (AR 52, 55, 57.) Based on this revised promotion date, plaintiff

would have been eligible for promotion to First Sergeant or Master Sergeant before the regularly

scheduled 1999 Selection Board, so the Remedial Selection Board proceeded to consider

whether to recommend plaintiff for calendar years 1999, 2000 and 2001. On November 16,

2001, though, the Remedial Selection Board decided not to recommend remedial promotion for

1999, 2000 or 2001. (AR 65-71.) Plaintiff thereafter requested relief from the BCNR. (AR 170-

173.) After the BCNR denied relief on May 6, 2004 (AR 166), plaintiff filed his initial

complaint in this Court. (Compl., Oct. 24, 2005.)

II.    POST-LITIGATION ADMINISTRATIVE PROCEEDINGS

       Since plaintiff filed his initial complaint, there have been additional administrative

proceedings before both the Remedial Selection Board and the BCNR. Only the Remedial

Selection Board’s most recent decision, issued on May 8, 2008,5 and the BCNR’s May 18, 2010

decision denying plaintiff’s application for relief from that decision are material to plaintiff’s



       5
         Between 2005, when plaintiff filed his initial complaint, and the May 8, 2010 Remedial
Selection Board decision, the case was remanded for further administrative proceedings several
times. (See Order, Apr. 16, 2006 [dkt. #16] (ordering remand at defendant’s request “so that the
BCNR can, if necessary, obtain a new advisory opinion from the Head of Enlisted Promotions
Branch, United States Marine Corps” or “convene a new ERSB” or “undertake any other
appropriate action”); Order, Apr. 15, 2008 [dkt. #33] (granting plaintiff’s consent motion to
remand “with instructions to refer [plaintiff’s] record to the Enlisted Remedial Selection Board
(“ERSB”) for reconsideration with respect to CY 1999, CY 2000, and CY 2001 Master Sergeant
regular selection boards, with particular reference to the board size requirement prescribed in
Marine Corps Order 5420.16C”).

                                                  5
Fourth Amended Complaint6 and the pending motions.

       A.      May 8, 2008 Decision of the Enlisted Remedial Selection Board

       On May 5, 2008, the Commandant issued a precept convening the Remedial Selection

Board for May 8, 2008 (AR 1062-64), and on May 8, 2008, the Remedial Selection Board

convened to consider 13 Marines of differing ranks, including plaintiff, who had been identified

as “eligible . . . for remedial consideration for promotion” (AR 1052-53, 1058-59) and to decide

whether to recommend each “for promotion to the next higher grade.” (AR 1053.) Of the

Marines under consideration, plaintiff was the only one being considered for remedial promotion

as of calendar year 1999, 2000 or 2001.

       Three documents were to guide the May 8, 2008 Remedial Selection Board’s decision-

making process: (1) Marine Corps Order (“MCO”) 5420.16C (AR 347); (2) the “Precept

Convening the CY 1999 Sergeant Major Through Master Sergeant Selection Board” (AR 1066-

76 [“1999 Precept”]); and (3) the May 5, 2008 “Precept Convening the Enlisted Remedial

Selection Board” for May 8, 2008 (AR 1062-64 [“2008 Remedial Precept”]).

       (1) Marine Corps Order 5420.16C: Marine Corps Order 5420.16C provides

“information, guidance and [] assign[s] responsibilities concerning the operation and functioning

of the Enlisted Remedial Selection Board.” (AR 341.) “[T]he guidance and procedures

contained [therein] or specifically referenced . . . are considered the sole guidance and

procedures governing the ERSB.” (AR 342.) “Specific Guidance Concerning Remedial



       6
       As a result of these additional administrative proceedings, plaintiff has had to amend his
complaint multiple times (See Amended Complaint, Jan. 23, 2008 [dkt. #23]; Third Amended
and Supplemental Complaint, Jan. 12, 2010 [dkt. #40]; Fourth Amended Complaint, June 18,
2010 [dkt. #58].)

                                                 6
Promotions” is set forth in subsection (1)(b), which, in relevant part, states the following:

       (1)     The ERSB will consider the cases of enlisted Marines both Regular and
       Reserve, who, for any reason other than ineligibility, did not receive consideration
       or were not properly considered, when they were eligible for consideration by a
       regularly convened Headquarters, U.S. Marine Corps Staff Noncommissioned
       Officer Selection Board.

       ...

       (3)    When considering whether or not to recommend selection of Marines
       whose records have been submitted to the board, the ERSB will be guided by the
       precept, procedural rules, policies, and regulations in effect when the respective
       regularly scheduled promotion selection board was in session. . . .

       (4)     The ERSB is not constrained by the selection allocations in effect at the
       time of the regularly scheduled board for which Marines have been granted
       remedial promotion consideration. The primary consideration of the ERSB will
       be a comparison of the record of the Marine granted remedial consideration to
       the records of the Marines selected by the regularly scheduled board before
       which the Marine has been granted remedial consideration.

       ....

(AR 346 (emphasis added).)

       (2) 1999 Precept: According to MCO 5420.16C, the Remedial Selection Board is to be

guided in part by “the precept . . . in effect when the respective regularly scheduled promotion

selection board was in session.” (AR 346.) The 1999 Precept provided, in relevant part, that:

       The function of the selection board is to recommend eligible first sergeants,
       master sergeants and gunnery sergeants for promotion to the next higher grade.
       The Marines selected will be SNCOs [Staff Noncommissioned Officers] whom a
       majority of the members of the board consider best qualified for promotion to
       meet the needs of the Marine Corps. In addition to the foregoing standard of best
       qualified, all Marines recommended for promotion must be fully qualified. Each
       Marine’s qualification and performance of duty must clearly demonstrate that the
       Marine will be capable of performing the duties normally associated with the next
       higher grade.

(AR 1067 (emphasis added).)


                                                  7
       (3) 2008 Remedial Precept: The 2008 Remedial Precept “directed” the Remedial

Selection Board “to comply with the instructions governing the regularly scheduled board,

except as noted.” (AR 1063.) The material exceptions include the following:

       a.      A remedial selection board is not subject to the limitations of promotion
       percentage or authorized selection numbers, which are ordinarily applicable to
       regularly scheduled selection boards. The “best and fully qualified” selection
       standard contained in the references is therefore modified for this remedial board
       to “fully qualified.”

       b.     The remedial selection board shall consider the official military personnel
       records of the Marines as their records should have appeared before the regularly
       scheduled selection board. For CY 1999 and earlier selection boards, the record
       may be compared with the records of those Marines of the same competitive
       category who were recommended for promotion, using the performance index. . . .
       . For CY 2000 and later selection boards, the record will be compared to the
       record of the Marines who were considered in the same competitive category,
       which will be furnished along with the record of the Marine who is considered by
       the remedial board. Based on the record and the other information submitted, the
       board shall recommend for promotion Marines who are fully qualified for
       promotion and capable of assuming the duties of the next higher grade.

(AR 1063 (emphasis added).) The “Performance Index (PI) rating system was the performance

evaluation system in use during 1999.” (AR 128.) It “calculates the value of fitness report

marks in a Marine’s current grade not to exceed five years. PI ratings can fall anywhere between

9.00, being the highest, to 6.50, being the lowest.” (AR 128.)

       In considering plaintiff for remedial promotion, the Remedial Selection Board had before

it plaintiff’s Performance Index rating (8.95), the range of Performance Index ratings for the

Marines considered for promotion to either Master Sergeant or First Sergeant by the 1999

regular Selection Board (all but two of the Marines recommended for promotion had ratings

between 8.80-9.00, as did many Marines not recommended for promotion), but not any particular




                                                8
Marine’s Performance Index rating, plaintiff’s Official Military Personnel File,7 and data from

the Marine Corps Total Force System.8 The record of proceedings before the May 8, 2008

Remedial Selection Board states that the board members “read the [May 3, 2008] Precept,”

“considered the cases of all personnel presented for review and complied with all instructions

contained in Marine Corps Order 5420.16.” (AR 1053.) The Remedial Selection Board

recommended six Marines for promotion – those Marines who, “in the opinion of a majority of

the members . . . represent the optimum in professional achievement in all respects, and are

qualified for appointment to the next higher grade.” (AR 1054, 1060.) Plaintiff, as well as six

others, was “not recommended for promotion.” (AR 1061.) The Record of Proceedings contains

no substantive information about the basis for the Remedial Selection Board’s decision.

       B.      May 18, 2010 Decision of the BCNR

       Following the Remedial Selection Board’s May 8, 2008 decision, plaintiff applied to the

BCNR, asking it to “correct” his record to show that he was promoted by the 1999 regular

Selection Board. (Def.’s Facts ¶ 28; AR 15-16.) On May 18, 2010, the BCNR denied relief.9

       7
         A Marine’s official file consists of a Marine’s official photograph, copies of his
service record book, performance evaluations received over his career, enlistment/reenlistment
contracts, copies of professional military or civilian education certificates or diplomas,
awards/certificates and any derogatory information such as disciplinary or counseling statements
for poor performance. (AR 36-38.)
       8
         An individual’s Marine Corps Total Force System data includes his physical fitness test
scores, rifle and pistol qualification scores, professional military education, personal awards, and
special skills or qualifications that a Marine may have earned throughout his career. (AR 37.)
       9
        The time lapse between the May 8, 2008 Remedial Selection Board decision and the
May 18, 2010 BCNR decision resulted from consented-to remands to or reconsideration by the
BCNR. For example, plaintiff first petitioned the BCNR on November 5, 2008, via email,
requesting that the BCNR direct that he receive a remedial promotion. (AR 15-16.) On
September 24, 2009, the BCNR denied relief. (AR 9-10.) However, on February 23, 2010, the
Court granted a consent motion to remand to a new BCNR panel. (Order, Feb. 23, 2010 [dkt.

                                                 9
       Prior to its consideration of plaintiff’s case, the BCNR sought an advisory opinion from

Headquarters, United States Marine Corps. In an Advisory Opinion issued on March 18, 2010,10

Marine Corps Headquarters offered the following to explain the May 8, 2008 Remedial Selection

Board’s decision not to recommend plaintiff for promotion:

       1. Performance Index (PI) is a statistics rating system used prior to CY 2000
       ERSBs to evaluate Marines selected to the next higher grade in their respective
       Intended Military Occupation Specialty (IMOS). PI calculates the value of fitness
       report marks in a Marine’s current grade not to exceed five years. PI ratings can
       fall anywhere between 9.00, being the highest, to 6.50, being the lowest. The
       intent of the PI was to provide board members with a tool to statistically measure
       the performance of Marines being considered for an ERSB in comparison to those
       Marines selected for promotion. Prior to CY 2000 ERSBs, the only Official
       Military Personnel File (OMPF) the board was privileged to view was the Marine
       being considered. Therefore, the focus of effort by board members to make a
       decision to promote a Marine to the next higher grade would have been based on
       the Marine’s OMPF and leadership experience in their respective roles as senior
       Marines. Of particular note, Gunnery Sergeant Pettiford’s OMPF contains two
       derogatory page 11 counseling entries; one from [December 9, 2005] for failure to
       pay spousal support and one [from October 12, 1984] for unprofessional attitude
       toward his NCOIC. Additionally, Gunnery Sergeant Pettiford has an adverse
       fitness report in his OMPF for the period [April 4, 1983] through [October 29,
       1983]. All adverse material must be briefed to the board.

       2.      The term “fully qualified” is not an arithmetic formula. On regularly
       scheduled [Staff Noncommissioned Officer] Selection Boards, the “best and fully
       qualified” are selected for promotion due to Marines competing for a limited
       amount of allocations. . . . Because Marines do not compete for allocations on



#47] (remanding because when the BCNR rendered its 2009 decision, it “mistakenly understood
that the Enlisted Remedial Selection Board had before it comparison Official Military Personnel
Files of other Marines in [plaintiff’s] competitive category who had been considered for
promotion to E-8 by the 1999 regular selection board”). On April 9, 2010 a new three-member
panel of the BCNR denied relief (AR 1086-1087), but because those proceedings “were not
conducted in accordance with applicable regulations” this Court extended its remand to allow a
different panel of the BCNR to consider the case. (See Minute Order, Apr. 23, 2010 [dkt. #48].)
       10
        Marine Corps Headquarters issued its first advisory opinion on May 8, 2009 (AR 11),
which the BCNR relied on in denying relief on September 24, 2009. (AR 09-10.) However, as
noted above (see supra n.9), the matter was subsequently remanded for reconsideration.

                                               10
      the ERSB, there is no limitation to select only to the number of allocations.
      Therefore, the criteria is “fully qualified.” The Marine must be deemed fully
      qualified in the opinion of the majority of the board members. If the majority
      opinion of the board deems the Marine fully qualified when compared against his
      peers, the Marine would be selected for promotion. . . . The ERSB, like a
      regularly scheduled Staff Noncommissioned Officer (SNCO) Selection Board
      follows the guidance and authority of the precept. Under oath and guidance from
      the precept, ERSB members have the authority to use some form of discretion and
      interpretation when it discussed cases being considered.

      3.    When Gunnery Sergeant Pettiford received remedial consideration for the
      CY 1999 . . . Selection Board, his PI value was 8.95. . . .

      ...

      5.      [For the First Sergeant regular selection board,] [t]here were 1002 Marines
      with a Performance Index (PI) rating between [8.80 and 9.00] . . . . Of those
      Marines, only 179 . . . were selected for promotion. Therefore, 830 Marines
      eligible for promotion with a PI rating between [9.00 and 8.80] were not selected
      for promotion. . . . Gunnery Sergeant Pettiford, along with 830 Marines with a
      similar PI, was simply not as competitive as those selected for first sergeant.

      ...

      7.      Sixty-two Marines were considered by the CY 1999 Master Sergeant
      regular promotion board [within plaintiff’s specialty]. Of those Marines, thirty-
      four possessed PI ratings between [9.00-8.80], . . . . 20 of the thirty-four Marines
      with a PI rating between [9.00-8.80] were selected for promotion. Therefore, 14
      Marines with a PI rating between [9.00-8.80], including [plaintiff] were not
      selected. . . . Gunnery Sergeant Pettiford, along with 14 other Marines, were
      simply not as competitive as those selected.

      8.      The circumstances surrounding each Marine’s request for remedial
      consideration are evaluated individually, with consistency and fairness in mind.
      However, the confidentiality of the selection board process precludes knowing the
      exact reasons why Gunnery Sergeant Pettiford was not selected. It can only be
      inferred that based upon a majority vote of the board members, his record was
      not competitive with the records of the Marines selected for promotion. Based
      upon the foregoing, it is the recommendation of this office that Gunnery Sergeant
      Pettiford’s rank remain unchanged.

(AR 1088-1090 (emphasis added).)

      Plaintiff filed a “Response to the Advisory Opinion” with the BCNR on April 1, 2010.

                                               11
Therein, he argued that the Advisory Opinion “does not justify the denial of [his] request that his

record be corrected to show that he was promoted by the 1999 regular selection board” (AR

1100) because (1) his 8.95 Performance Index necessarily puts him above other Marines who

were selected; (2) the Remedial Selection Board erred by considering plaintiff’s OMPF but not

any other Marine’s OMPF; and (3) the cherry-picked OMPF entries cited in the advisory opinion

were stale by 1999 and did not preclude [plaintiff’s] selection. (4th Compl. ¶¶ 38-39) Plaintiff

also submitted to the BCNR a number of statements from Marine Corps supervisors

recommending his promotion, copies of which had been submitted when the case was before the

Remedial Selection Board. (4th Compl. ¶ 39.)

       On May 18, 2010, relying entirely on the Advisory Opinion and without expressly

addressing any of plaintiff’s arguments, the BCNR denied plaintiff’s petition for relief.

Following the BCNR’s decision, plaintiff filed his Fourth Amended Complaint. Plaintiff asks

the Court to: (1) set aside the May 2008 decision of the Remedial Selection Board and the May

2010 decision of the BCNR; (2) direct the Secretary to correct plaintiff’s record to show that he

was promoted to pay grade E-8 by the calendar year 1999 regular Selection Board or, in the

alternative (and without prejudice to that relief), remand the case for further proceedings before

the Remedial Selection Board and, if need be, the BCNR on plaintiff’s request that his record be

so corrected; and (3) grant such other and further relief as may in the circumstances be just and

proper. Defendant has moved to dismiss or, in the alternative, for summary judgment. Plaintiff

has moved for summary judgment.

                                          DISCUSSION

       Plaintiff’s Fourth Amended Complaint claims that the BCNR’s May 18, 2010 decision is


                                                12
arbitrary and capricious and contrary to law because it addressed neither the nonfrivolous

arguments advanced in plaintiff’s response to the advisory opinion nor the supporting statements

he submitted (4th Compl. ¶ 46) and that the Remedial Selection Board’s May 8, 2008 decision

along with the BCNR’s decision are arbitrary and capricious “for the reasons set forth in

[plaintiff’s] response to the advisory opinion.” (4th Compl. ¶ 47). Defendant has moved to

dismiss or, in the alternative, for summary judgment on the ground that plaintiff’s claim for

retroactive promotion is not justiciable and the BCNR’s decision is not arbitrary and capricious.

I.     LEGAL STANDARD

       A final decision of the BCNR is subject to judicial review under § 706 of the

Administrative Procedure Act, 5 U.S.C. § 706. See Frizelle v. Slater, 111 F.3d 172, 176 (D.C.

Cir. 1997). Under the APA, a reviewing court must “defer” to an agency’s decision unless it “is

arbitrary and capricious, contrary to law, or unsupported by substantial evidence.” Id.; see Kreis

v. Sec’y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989). Generally, “[t]he scope of

review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its

judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983). Thus, a court “will not disturb the decision of an agency that has

‘examined the relevant data and articulated a satisfactory explanation for its action including a

rational connection between the facts found and the choice made.’ “ MD Pharm. v. Drug

Enforcement Admin., 133 F.3d 8, 16 (D.C. Cir.1998) (quoting Motor Vehicle Mfrs. Ass’n, 463

U.S. at 43). “[A]n agency’s decision [need not] be a model of analytic precision to survive a

challenge.” Dickson v. Sec’y of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995); Frizelle, 111

F.3d at 176. Rather, “[a] reviewing court will uphold a decision of less than ideal clarity if the


                                                 13
agency’s path may reasonably be discerned” Dickson, 68 F.3d at 1404; Frizelle, 111 F.3d at

176.

       Reviewing the decision of a military correction board requires an “unusually deferential

application of the arbitrary or capricious standard” given the language of 10 U.S.C. § 1552(a).

Kreis, 866 F.2d at 1514; see Musengo v. White, 286 F.3d 535, 538 (D.C. Cir. 2002); Cone v.

Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). As the Court of Appeals explained in Kreis:

       In practice, however, the question whether a particular action is arbitrary or
       capricious must turn on the extent to which the relevant statute, or other source of
       law, constrains agency action. While the broad grant of discretion implicated here
       does not entirely foreclose review of the Secretary’s action, the way in which the
       statute frames the issue for review does substantially restrict the authority of the
       reviewing court to upset the Secretary’s determination. It is simply more difficult
       to say that the Secretary has acted arbitrarily if he is authorized to act “when he
       considers it necessary to correct an error or remove an injustice,” 10 U.S.C. §
       1552(a) (emphasis added), than it is if he is required to act whenever a court
       determines that certain objective conditions are met, i.e., that there has been an
       error or injustice..

Kreis, 866 F.2d at 1514. Thus, a court’s role in reviewing the decision of a military corrections

board is to determine whether “the decision making process was deficient, not whether [the]

decision was correct.” Dickson, 68 F.3d at 1405-06 (quoting Kreis, 866 F.2d at 1511). To

enable a court to perform that review and ensure that the decision is not “utterly unreviewable,”

a military corrections board “must give a reason that a court can measure, albeit with all due

deference, against the ‘arbitrary or capricious’ standard of the APA.” Kreis, 866 F.2d at 1514-

15. Thus, if a military board of corrections “fail[s] to address . . . . arguments that are not

facially frivolous,” its decision must be reversed and the matter remanded. Frizelle, 111 F.3d at

175, 177; Dickson, 68 F.3d at 1404 (“fail[ure] to provide anything approaching a reasoned

explanation” rendered military correction board’s decision “arbitrary and capricious”); see also


                                                  14
Calloway v. Brownlee, 366 F. Supp.2d 43, 53 (D.D.C. 2005) (“[A]n agency action is arbitrary

and capricious if the agency ... has entirely failed to consider an important aspect of the case

presented.”).

II.    JUSTICIABILITY

       Defendant has moved to dismiss plaintiff’s complaint as nonjusticiable on the ground that

“the determination as to whether [plaintiff] should be promoted to the rank of Master Sergeant is

decidedly a military personnel decision.” (Def.’s Mem. in Support of Supp. Mot. to Dismiss or

Summ. J. at 10, July 2, 2010 [“Def.’s Mem.”]11.) To the extent plaintiff seeks retroactive

promotion directly from this Court, defendant is correct. It has long been established that “a

request for retroactive promotion falls squarely within the realm of nonjusticiable military

personnel decisions.” Kreis, 866 F.2d at 1511; see, e.g., Millican v. United States, 744 F.

Supp.2d 296, 305 (D.D.C. 2010) (no jurisdiction over claim for retroactive promotion).12

       However, plaintiff’s complaint also challenges the BCNR’s decision making process. As

the Court of Appeals held in Kreis, a claim for the correction of military records, even where

plaintiff’s “efforts are aimed ultimately at securing his promotion,” is justiciable because such a

claim “required the district court merely to evaluate, in light of familiar principles of

administrative law, the reasonableness of the Secretary’s decision not to take certain corrective

action with respect to [plaintiff’s] record,” and that “adjudication of [plaintiff’s] claims would


       11
        Defendant’s Memorandum in Support of its Supplemental Motion to Dismiss
consolidated all of defendants’ arguments into a single brief.
       12
         “The Constitution vests ‘[t]he complex, subtle, and professional decisions as to the
composition, training, equipping, and control of a military force’ exclusively in the legislative
and executive branches.” Kreis, 866 F.2d at 1511 (quoting Gilligan v. Morgan, 413 U.S. 1, 10
(1973)).

                                                 15
require[d] the district court to determine only whether the Secretary’s decision making process

was deficient, not whether his decision was correct.” 866 F.2d at 1511. Indeed, defendant

acknowledges that “[t]his Court would have authority to set aside the Corrections Board and

Remedial Selection Board decisions as procedurally improper.” (Def.’s Mem. at 13.)

       Accordingly, defendant’s motion to dismiss will be granted in part and the Court will

dismiss plaintiff’s claim to the extent he asks this Court to order the Secretary of the Navy to

retroactively promote him.

III.   THE BCNR’S MAY 18, 2010 DECISION IS ARBITRARY AND CAPRICIOUS

       Plaintiff contends first that the May 8, 2008 Remedial Selection Board decision and the

May 18, 2010 BCNR decision are arbitrary and capricious for the reasons set forth in plaintiff’s

response to the Advisory Opinion or, in the alternative, that the BCNR decision is arbitrary and

capricious because it failed to address those arguments or the supporting statements plaintiff

submitted along with his response to the Advisory Opinion. The Court will consider the latter

contention first because only if the BCNR addressed plaintiff’s arguments, either expressly or

because the Court is able to “discern” its analysis from the record before it, can the Court

evaluate whether its decision-making process was otherwise deficient. If the BCNR failed to

address plaintiff’s nonfrivolous arguments, the appropriate remedy would be a remand to the

BCNR for it to do so in the first instance.

       As described above, in considering plaintiff for remedial promotion, the Remedial

Selection Board had before it plaintiff’s Performance Index rating (8.95), the range of PI ratings

for the Marines considered for promotion to either Master Sergeant or First Sergeant by the 1999

regular Selection Board (all but two of the Marines recommended for promotion had ratings


                                                 16
between 8.80-9.00, as did many Marines not recommended for promotion), plaintiff’s Official

Military Personnel File, and data from the Marine Corps Total Force System. Plaintiff argues

that because MCO 5420.16C requires that the “primary consideration of the ERSB will be a

comparison of the record of the Marine granted remedial consideration to the records of the

Marines selected by the regularly scheduled board before which the Marine has been granted

remedial consideration” (AR 346), the process employed by the May 8, 2008 Remedial Selection

Board was flawed. Specifically, plaintiff criticizes the Board’s process on the grounds that (1)

the only basis for comparison used by the Remedial Selection Board was the PI rating, but

plaintiff’s 8.95 rating put him above at least some, and perhaps most of the Marines who were

promoted by the regularly scheduled 1999 Selection Board; (2) the Remedial Selection Board

had before it and obviously relied on information in plaintiff’s Official Military Personnel File

without comparing it to the Official Military Personnel Files of any selected Marines; and (3) the

negative information in plaintiff’s official file that the Advisory Opinion speculated might have

been the basis for the Remedial Selection Board’s decision was too old and stale to justify that

outcome.

       Defendant suggests that plaintiff’s argument is meritless because it is “obvious that the

[2008 Remedial] precept required the Remedial Selection Board for 1999 to compare Plaintiff’s

Official File to the Performance Index of other Marines selected for promotion.” (Def.’s Mem.

at 21.)13 Plaintiff counters that the 2008 Remedial Precept “must be read in light of” MCO


       13
         Defendant also suggests that even if the Remedial Selection Board’s method of
comparison was “unfair,” plaintiff cannot show he was prejudiced because he was not remedially
promoted for either 2000 or 2001, when the Remedial Selection Board compared his OMPF to
the OMPF’s of Marines who had been promoted. (Def.’s Mem. at 22.) However, because each
year’s comparison must be a distinct inquiry, this argument is not persuasive. (AR 346

                                                17
5420.16C’s direction that the “primary consideration . . . be a comparison of the Marine granted

remedial consideration to the records of the Marines selected by the regularly schedule board.”

(Pl.’s Opp’n to Mot. to Dismiss and Mem. in Support of Mot. for Summ. J. at 11, June 7, 2010

[“Pl.’s Mem.”] (quoting AR 346).) Thus, plaintiff argues, the statement that “[f]or CY 1999 and

earlier selection boards, the record may be compared with the records of those Marines of the

same competitive category who were recommended for promotion, using the performance index”

(AR 1063) is properly read to “make[] the PI a surrogate for the Marine’s OMPF,” not to

authorize, much less require, “that the OMPF of the Marine being considered for remedial

promotion would be subjected to review with a fine-tooth comb while those with whom he or

she was being compared would be judged based just on their PI.” (Pl.’s Mem. at 12.) Plaintiff

also argues that defendant’s interpretation of the 2008 Remedial precept is flawed because it

would be simply illogical to try and “compare” a single Marine’s OMPF with other Marines’ PI

ratings, given that the OMPF is a comprehensive file based on a Marine’s entire career while the

PI rating is statistical rating based on a Marine’s fitness reports for the preceding five years.

       Plaintiff made its argument to the BCNR (see Pl.’s Response to Advisory Opinion), but

the BCNR never addressed it. See, e.g., Dickson, 68 F.3d at 1404 (“agency’s explanation must

minimally contain ‘a rational connection between the facts found and the choice made” (internal

quotations omitted)); Kreis, 866 F.2d at 1514 (Secretary “must give a reason that a court can

measure, albeit with all due deference, against the ‘arbitrary or capricious’ standard of the

APA.”) And although “[a] reviewing court will uphold a decision of less than ideal clarity if the



(Remedial Selection Board must compare “the record of the Marine granted remedial
consideration to the records of the Marines selected by the regularly scheduled board before
which the Marine has been granted remedial consideration”).)

                                                  18
agency’s path may reasonably be discerned,” Dickson, 68 F.3d at 1404, the Court is unable to

“discern” the BCNR’s rationale from the record before it. The Advisory Opinion, upon which

the BCNR’s decision entirely relies, establishes that the Remedial Selection Board had before it

plaintiff’s PI rating, the range of PI ratings for the Marines promoted and not promoted by the

regular Selection Board, and plaintiff’s OMPF. It also establishes that plaintiff’s PI rating was

8.95, that plaintiff’s PI rating fell in the same top range as most of the Marines promoted by the

regular Selection Board and, in all likelihood was higher than some; and that a number of

Marines with PI rating’s in that same range were not promoted. However, the Advisory Opinion

fails to address in any way plaintiff’s argument that to allow the Remedial Selection Board to see

plaintiff’s OMPF but no others was inconsistent with MCO 5420.16C’s instruction that the

primary consideration of the Remedial Selection Board should be the comparison of the referred

Marine to the Marines who were selected for promotion by a regularly scheduled Selection

Board. And, it fails to indicate that there is any legal impediment to allowing the Remedial

Selection Board to see other Marine’s OMPF’s. And nor does it explain how with only PI

rating’s as a basis for comparison, the Remedial Selection Board could have concluded, as the

Advisory Opinion states, that “was simply not as competitive as those [Marines] selected [by the

1999 regular Selection Board].” (AR 1090.)

       In any event, because the Court is reviewing the “decision making process” of the

BCNR, not whether its decision was “correct,” see Dickson, 68 F.3d at 1405 (quoting Kreis, 866

F.2d at 1511), it cannot “substitute its judgment for that of the agency” or “‘supply a reasoned

basis for the agency’s decisions that the agency itself has not offered.’” Calloway, 366 F.

Supp.2d at 53-54 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). Rather, the BCNR’s


                                                19
failure to address a non-frivolous argument raised by plaintiff that could affect the BCNR’s

ultimate disposition renders the BCNR’s decision arbitrary and requires a remand so that the

BCNR can consider and respond to the argument. See Frizelle, 111 F.3d at 177 (remanding to

Coast Guard Board for Correction of Military Records because “Board did not respond to two of

[plaintiff’s] arguments, which do not appear frivolous on their face and could affect the Board’s

ultimate disposition”); Dickson, 68 F.3d at 1406 (remanding to Army Board for Correction of

Military Records because “boilerplate language used by the Board ma[de] it impossible to

discern the Board’s path”); Poole v. Harvey, 571 F. Supp. 2d 120, 126 (D.D.C. 2008)

(remanding to Army Board for Correction of Military Records because plaintiff’s argument was

“non-frivolous and potentially meritorious and the [Board] failed to address it”); Roberts v.

Harvey, 441 F. Supp.2d 111, 121 (D.D.C. 2006) (remanding to Army Board for Correction of

Military Records for failure to address argument); Calloway, 366 F. Supp.2d at 55 (remanding to

Army Board for Correction of Military Records for failure to address nonfrivolous arguments).

As the Court in Dickson noted: a court “cannot determine whether the decision making process

was deficient until [it is] allowed to understand what that process was.” 68 F.3d at 1406.

       The BCNR’s failure to address plaintiff’s argument renders its decision arbitrary.

Accordingly, the Court will remand this matter to the BCNR for further consideration. On

remand, the BCNR is free to reject plaintiff’s argument, but “it must expressly indicate that it has

done so” and “explain its rationale.” Calloway, 366 F. Supp.2d at 55 (internal quotations

omitted); see also Calloway v. Harvey, 590 F. Supp.2d 29, 40 (D.D.C. 2008) (military board did

not act arbitrarily in denying relief after remand to address plaintiff’s nonfrivolous arguments).

                                         CONCLUSION


                                                20
       For the reasons stated above, plaintiff’s claim for remedial promotion will be dismissed;

the May 18, 2010 decision of the BCNR will be set aside, and the case will be remanded to the

BCNR for further proceedings in accordance with this opinion. A separate Order accompanies

this Memorandum Opinion.



                                                         /s/
                                            ELLEN SEGAL HUVELLE
                                            United States District Judge


DATE: March 31, 2011




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