                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit



                              No. 97-50765
                            Summary Calendar




             WILLIAM D. STONEBURNER, Lieutenant Colonel,

                                                           Plaintiff-Appellant,


                                     VERSUS


         SECRETARY OF THE ARMY; ARMY BOARD FOR CORRECTIONS
                        OF MILITARY RECORDS,


                                                       Defendants-Appellees.



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

                           September 8, 1998

Before   DUHÉ, 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 status1 for 53 days and was absent from observation

another 12 days.

      To   qualify    as     a   senior     rater,        AR   623-105,    ¶    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, ¶ 4-10(c)(3).         Richardson had 88 days, including both rated

and nonrated days, to observe and evaluate Stoneburner; English

  1
   Being in nonrated status means that the officer being evaluated
is not performing work related to his duty position. Stoneburner
was on leave and in school preparing for a new assignment during
the 53 days.

                                               2
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.


                                          3
     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

                                          4
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

                                              5
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

     2
   A referred report is one that has an adverse impact upon the
rated officer’s military career. Such reports are referred to the
rated officer so that he may respond to the allegations before the
report is placed in his personnel file. AR 623-105 4-27.

                                              6
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, ¶ 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

                                         7
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   court’s   grant   of   summary

judgment de novo, applying the same standard as the district court.

 Fed. R. civ. P. 56(c).

     The ABCMR, a civilian board appointed by the Secretary of the

Army, has statutory authority to “correct any [Army] record” if

necessary to “correct an error or remove an injustice.”            10 U.S.C.

§ 15552(a)(1). ABCMR decisions “are subject to judicial review and

can be set aside if they are arbitrary, capricious or not based on

substantial evidence.”         Chappell v. Wallace, 462 U.S. 296, 303

(1983); Geyen v. Marsh, 782 F.2d 1351, 1352 (5th Cir. 1986).                 A

federal court may not review the ABCMR’s decision de novo,               Geyen

at 1352, because “[J]udges are not given the task of running the

Army.”   Orloff v. Willoughby, 345 U.S. 83 (1953).           Thus, judicial

review of the Board’s decision is limited to the record before the

Board at the time of its decision.          Geyen v. Marsh, 775 F.2d 1303,

1309 (5th Cir. 1985).

                    B.   The Officer Evaluation Report


                                        8
     Stoneburner attacks the validity of the OER on two grounds.

First, he contends that Richardson was not eligible to serve as his

senior rater and thus his ratings were unfair and unjust.    Second,

he argues that the report should have been referred because it

contained negative comments that indicated Stoneburner should not

be promoted.   We will examine each argument in turn.

     To evaluate a rated officer, “the senior rater must normally

serve in that capacity for a minimum of 60 calendar days.”   AR 623-

105, ¶3-10(b)(1). He is directed to “[u]se all reasonable means to

become familiar with the rated officer’s performance.” AR 623-105,

¶ 3-12(a).     Those means include personal contacts, records and

reports, and the rater’s evaluations.   Id.   In response to General

Saint’s request for clarification of the policy requiring the rater

to qualify based on rated days and the senior rater to qualify

solely on calendar days, the U.S. Total Army Personnel Agency

explained the reason for the difference:

          The relationship between the rater and the
          rated officer is the most important in the
          rating chain.   It most often determines the
          nature of performance and the resulting
          evaluation.   As a result, this relationship
          requires    the     longest    qualification
          requirement, determines whether a report is
          prepared, and is the only relationship
          affected by the rated officer’s non-rated
          time.

          The responsibility relationship between the
          rated officer and other rating officials (dual
          supervisor, intermediate rater, or senior
          rater) has less impact on actual performance
          and is mainly associated with an evaluation of
          potential.   These relationships, therefore,

                                 9
           deliberately   have   shorter    qualification
           requirements,   do  not   normally   determine
           whether a report is required, and are not
           affected by rated officer non-rated time.

     The ABCMR thus determined that the nonrated time accrued by

the rated officer does not affect the qualifications or eligibility

of the senior rater to provide an evaluation after serving the

minimum time in that position.

     We find that there is substantial evidence to support the

ABCMR’s   decision   that    Richardson   was    eligible   to   serve   as

Stoneburner’s    senior     rater   and   that    he   fairly    evaluated

Stoneburner.    He served as senior rater from his arrival on March

2, 1989, until May 28, 1989, Stoneburner’s last duty day of the OER

period.    This 88-day period therefore met the 60-calendar-day

regulatory requirement.     Richardson used all the recommended means

in making his evaluation, including input from the prior senior

rater. Accordingly, the record supports ABCMR’s determination that

Richardson was eligible to serve as Stoneburner’s senior rater and

that his evaluation was “a fair, objective[,] and valid appraisal.”

     Stoneburner also complains that the ABCMR’s decision that the

OER was not a referred report was arbitrary and capricious and not

based on substantial evidence.      We disagree.

     The reports that are classified as referred include:

           a.    A relief for cause report submitted. . .
           b.    Any report with negative remarks about
                 the rated officer’s professional ethics
                 in Part IVb, and/or in the rating
                 official’s narrative evaluation(s).
           c.    Any report with a rating of 4 or 5 in any

                                    10
                    of the 14 attributes in Part IVa.
            d.      Any report resulting in a performance
                    evaluation of “Often failed requirements”
                    or “Usually failed requirements” in Part
                    Vb.
            e.      Any report with a potential evaluation in
                    Part Vd of “Do not promote” or narrative
                    comments to that effect from any rating
                    official.
            f.      Any report with a potential evaluation in
                    Part Vd of “Other,” where the required
                    explanation has derogatory information.
            g.      Any report with a senior rater potential
                    evaluation in one of the bottom three
                    blocks in Part VIIa.
            h.      Any report with ratings or comments that,
                    in the opinion of the senior rater, are
                    so derogatory that the report may have an
                    adverse impact on the rated officer’s
                    career.
            i.      Any report with an entry of “FAIL” in
                    Part    IVa,     item    3,    indicating
                    noncompliance with AR 350-15; or an entry
                    of “NO” in Part IVa, item 12, indicating
                    noncompliance with AR 600-9.

AR 623-105, ¶4-27.

     The    ABCMR    found   that     Stoneburner’s    OER    met none of the

criteria set out above and did not contain ratings and comments so

derogatory    that    the    report    would   have   an    adverse    impact   on

Stoneburner’s career.         Stoneburner contends that the evaluation

remarks indicating       that    he   should   continue      to   serve   at   duty

positions of similar levels of responsibility were the same as a

comment of “do not promote.”

     English, the rater, gave all “1's,” the highest rating, in all

14 attributes in part IVa.             In Part IVb, the performance and

potential    evaluation,        he    marked   the    box    “Always      exceeded

requirement.”        In the comments section, the rater stated “LTC

                                        11
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.”          When presented with the choices for promotion,

English marked the box “Promote with contemporaries.”                           He did not

select “Promote ahead of contemporaries,” “Do not promote,” or

“Other.”    In commenting on Stoneburner’s potential, he wrote, “LTC

Stoneburner should be continued in the U.S. Army Reserve as an

Individual Ready Reservist when he reaches his mandatory release

from active duty in June 1990.”               None of these ratings or comments

were    sufficient       to   cause     the    senior    rater      to       consider   them

derogatory and consequently classify this as a referred report.

       The senior rater, Richardson, assigned mediocre ratings to

Stoneburner in his portion of the OER.               Under Part VIIa, when given

nine    levels    from     which   to    choose     in   assessing           Stoneburner’s

potential,       he     marked   the    fifth      level.          He    commented      that

Stoneburner “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.”

       Stoneburner argues that his OER is similar to the OER in Muse,

where the rated officer received “superior” ratings in one portion

of his report but obviously disparaging remarks in another portion.

Muse v. United States, 21 Ct.Cl. 592 (1990).                                 In Muse, the

                                              12
“superior”   ratings    were   accompanied     by    clearly     contradictory

comments:    “[Muse’s] performance as trial counsel was erratic. he

was frequently criticized for ineffective courtroom performance.

He is not a good public speaker and was not always thoroughly

prepared in court.”    Id. at 606.     We find that the raters’ comments

on Stoneburner’s performance and potential a far cry from the

derogatory comments found in Muse’s OER.                  We conclude that

Stoneburner’s raters’ comments do not rise to a level that could be

considered adverse to his career.

     In sum, none of the ratings or comments fall within the

guidelines for a referred report.           Although interviews with both

English and Richardson during the OSRB investigations reveal that

both raters doubted Stoneburner’s potential for advancement, the

OER did not reflect this.

     A review of the summary judgment proof reflects that the ABCMR

had the entire record before it in making its decision.                    That

record included the reports and investigations conducted during

Stoneburner’s   two    appeals   to   the    OSRB,   as   well    as   a   third

investigation by the OSRB at ABCMR’s request.                  The ABCMR also

considered the OER, Stoneburner’s application for correction of

military records, his military personnel records, the opinions from

the OSRB and the pertinent Army regulations and C.F.R. sections.

Thus, we     find that Stoneburner has not established that the

ABCMR’s decision was not based on substantial evidence or that it

was either arbitrary or capricious.           Accordingly, we affirm the

                                      13
district court’s ruling on that point.

                    C. Equal Protection Violation

      Stoneburner contends that the Army’s regulatory criteria for

determining the qualifications of senior raters violate equal

protection.   He claims that he was denied equal protection because

there is no requirement that he, as the rated officer, be in 60

days of rated time in order for the senior rater to be eligible to

serve as his senior rater although there is such a requirement for

raters.3   He argues that the evaluation prepared by his senior

rater was less fair than an OER prepared for a rated officer who

was in rated time for the entire 60 days.

      The Equal Protection Clause, as incorporated into the Fifth

Amendment’s   due   process   right4,   essentially    directs   that   all

persons similarly situated be treated alike.          City of Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985).          To state

an equal protection claim Stoneburner must allege, inter alia, that

similarly situated individuals were treated differently.         Muhammad

v. Lynaugh, 966 F. 2d 901, 903 (5th Cir. 1992).             He must also

allege purposeful or intentional discrimination.            McCleskey v.

Kemp, 481 U.S. 279, 292 (1987).         Stoneburner must show that the

Army has no rational basis for treating similarly situated persons




  3
   AR 623-105, ¶ 3-10(b)(1); AR 623-105, ¶ 4-10(c)(3).
  4
   Bolling v. Sharpe, 347 U.S. 497 (1954).

                                   14
differently.5

      Stoneburner appears to argue that not all lieutenant colonels

are treated alike in their ratings, i.e., some have more rated days

in which to be evaluated by senior raters than he and other

lieutenant colonels have.            We question the class Stoneburner has

fashioned to make this claim.            His argument merely rehashes his

earlier claim that Richardson was not qualified to be his senior

rater.

      Assuming, however, that he has identified a legitimate class,

Stoneburner     fails    to   show    that    the    Army’s   regulation   has    no

rational basis.         The regulations explain that the senior rater

evaluates     the    rated    officer        “from    a   broad   organizational

perspective.”       AR 623-105, ¶ 3-10(a).           In its explanation of the

different roles of the rater and senior rater, supra, § IIB, the

U.S. Army Total Personnel Agency opinion provides this rational

basis.   The Army also points to the undue administrative burden

officers in the field would suffer if they had to keep track of

nonrated time to qualify senior raters.               We consider this concern

an additional rational basis for requiring only calendar days to

qualify a senior rater. We also find that Stoneburner has failed to

establish     purposeful      or     intentional       discrimination      in    the

application of the Army’s OER regulations. Consequently, we affirm


  5
   Guerra v. Scruggs, 942 F. 2d 270, 279 (4th Cir. 1991). (because
no fundamental right or suspect classification is involved,
rational basis test applies).

                                         15
the district   court’s   grant   of   summary   judgment   on   the   equal

protection issue and deny Stoneburner’s motion to enlarge the

record.

AFFIRMED.




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