                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

___________________________________
JACKSON L. McGRADY                  )
                                    )
          Plaintiff,                )
                                    )
     v.                             )         Civil Action No. 05-1651
                                    )
                 1
DONALD C. WINTER                    )

Secretary of the Navy, et. al.     )
                                   )
          Defendants.              )
                                   )
___________________________________)


                          MEMORANDUM OPINION


     Plaintiff, Marine Corps Maj. Jackson L. McGrady, brings this

action pursuant to 10 U.S.C. § 628 and the Administrative Procedure

Act (“APA”), 5 U.S.C. § 701, et seq., against Defendants, U.S.

Department of the Navy and Secretary Donald C. Winter, seeking

judicial   review   of   agency   decisions   relating   to   Plaintiff’s

military service record and requests for the convening of a Special

Selection Board (“SSB”).2


1
  Pursuant to FED. R. CIV. P. 25(d), the current Secretary of the
Navy (“Secretary”), Donald C. Winter, is automatically substituted
as Defendant for former Secretary of the Navy, Gordon R. England.
2
 A SSB is a promotion board that convenes separately from the
Navy’s regularly-scheduled annual promotion boards. The Secretary
has the authority to convene an SSB where he “determines that
because of administrative error a person who should have been
                                                         (continued...)
     This matter is presently before the Court on Defendants’

Motion for Summary Judgment (“Defs.’ Mot.”) (July 25, 2006) [Dkt.

No. 42] and Plaintiff’s Cross Motion for Summary Judgment (“Pl.’s

Mot.”) (Aug. 25, 2006) [Dkt. No. 44].               Upon consideration of the

Motions, Oppositions, Replies, and the entire record herein, and

for the reasons stated below, Defendants’ Motion for Summary

Judgment is granted and Plaintiff’s Motion for Summary Judgment is

denied.

I. Background3

     On   November    26,   1990,     Plaintiff,         who   was    then     a   First

Lieutenant,    received     a    performance       review      from    Capt.       Dennis

Davidson for the four-month period beginning on August 1, 1990 and

ending on November 26, 1990 (“Davidson Report”). AR at 396-97. The

Davidson Report ranked Plaintiff “3 of 3,” indicating he was the

poorest   performer    compared       to     the   two    other      officers      under

simultaneous     review.    AR   at   396-97.      Despite      his    low   ranking,




2
 (...continued)
considered for selection for promotion from in or above the
promotion zone by a promotion board was not so considered . . . .”
10 U.S.C. § 628 (a)(1).
3
 Unless otherwise noted, the facts set forth herein are undisputed
and drawn from the parties' Statements of Material Facts, submitted
pursuant to Local Civil Rule 7(h), and the Administrative Record
(“AR”). Additionally, unless otherwise noted, references to the AR
are to the copy certified on November 22, 2005.

                                       -2-
Plaintiff subsequently earned promotions to captain and then major.

AR at 284-87.

     On December 3, 1998 the Marine Corps issued Order (“MCO”)

P1610.7E, which modified the Performance Evaluation System for

Marine    Corps   officers     and   called    for     a    reduction   in    grade

inflation. MCO P1610.7E, Pl. Ex. 8 (Aug. 25, 2006) [Dkt. No. 44-8].

Shortly   thereafter,     on   August     3,   1999,       Plaintiff   received   a

performance review from Col. Francis Scovel for the period covering

September 1, 1998 through March 15, 1999 (“Scovel Report”).                   AR at

584-588. In his review, Col. Scovel indicated that Plaintiff was

among the “top 5% of majors [Scovel had] observed in [his] 22 years

of service.” Id. On the basis of his understanding at the time of

MCO P1610.7E, Col. Scovel ranked Plaintiff fifth out of eight, with

eight being the highest score possible. Id.

     On July 12, 2002, the Commandant of the Marine Corps (“CMC”)4

issued a Marine Administrative Message (“MARADMIN”) announcing that

the Fiscal Year 2004 Lieutenant Colonel Selection Board (“FY 2004

Selection Board”) would convene on October 9, 2003.                AR at 155. In

response to the MARADMIN, Plaintiff submitted an application for

promotion   to    the   rank   of    Lieutenant      Colonel.    AR    at   161-67.

Plaintiff was subsequently notified that he was not selected for


4
 The CMC presides over the Marine Corps’ Headquarters and is
required to provide recommendations regarding Marine Corps matters
to the Secretary. 10 U.S.C. § 5043(e)(1).

                                        -3-
promotion by the FY 2004 Selection Board. Plaintiff’s Statement of

Material Facts on Which There is No Genuine Issue ¶ 4 (“Pl.’s Stmt.

of Facts”) (Aug. 25, 2006) [Dkt. No. 44].

       In response to this decision, Plaintiff consulted Lt. Col. D.

Crowl regarding his military record. Id. ¶¶ 6,8.             In evaluating

Plaintiff’s record, Lt. Col. Crowl identified inconsistencies in

the Scovel Report and informed Plaintiff that negative inferences

could be drawn from the Davidson Report. Id. ¶ 8; AR at 119-20,

479.

       Based on Lt. Col. Crowl’s comments, Plaintiff sought to obtain

a   letter   from   Captain   Davidson    to   “ameliorate   any   negative

inferences” that could be drawn from the Davidson Report. Pl.’s

Stmt of Facts ¶ 10. On April 3, 2003, Plaintiff obtained a letter

from Capt. Davidson stating that he “should have ranked [Plaintiff]

1 of 3” in his performance review but failed to do so, for reasons

unrelated to Plaintiff’s performance. AR at 22. Specifically, Capt.

Davidson explained that:

             In that report I ranked First Lieutenant
             McGrady 3 of 3.     This was not an accurate
             ranking. At the time of the report, there was
             little doubt that First Lieutenant McGrady was
             the more accomplished officer of the three and
             I should have ranked him 1 of 3.         First
             Lieutenant McGrady was clearly superior.     I
             ranked First Lieutenant McGrady, who was
             already a regular officer, behind the other
             two officers, both of whom were USMCR, in an



                                    -4-
           effort   to   assist         their   chances   for
           augmentation.

           I also made the “bonehead” assumption that
           First   Lieutenant    McGrady   had   limited
           aspirations for a career in the USMC and that
           the other two Officers were focused on a
           career.     I was grossly mistaken in my
           assumption and live with this poor judgment
           constantly.

           Further, I did not believe that this report,
           even if First Lieutenant McGrady decided to
           stay in the Marine Corps, would hinder [his]
           career as he was certain for promotion and any
           follow-on assignments would show his superb
           value to service. I did not believe that my
           rankings on a transfer report would negatively
           affect [him].

Id.

      Based on Davidson’s letter, Plaintiff filed an application to

the Board for Correction of Naval Records (“BCNR”)5 on May 6, 2003,

requesting that Capt. Davidson’s 1990 report be corrected to

reflect a ranking of “1 of 3” instead of “3 of 3.”         AR at 186.

Acting through the Performance Evaluation Review Board (“PERB”),

the CMC recommended that BCNR deny Plaintiff’s application to amend

the Davidson Report.6 AR at 129-130. On August 26, 2003, BCNR


5
 BCNR is a civilian board created by the Secretary pursuant to 10
U.S.C. § 1552. Unless the matter at issue is specifically reserved
to the Secretary, BCNR has authority to take final action to amend
a military personnel record. 32 C.F.R. § 723.6(e).
6
 To contest a performance evaluation report, an officer must first
file his request with the CMC. MCO P1610.7E ¶ 5008.2. The CMC
                                                         (continued...)

                                  -5-
granted Plaintiff’s application to modify the Davidson Report. AR

at 61.

      On September 2, 2003, Plaintiff received a letter from Col.

Scovel regarding the Scovel Report (“2003 Scovel letter”). AR at

535-36. Col. Scovel explained that, although Plaintiff was in the

“top 5%” of majors, he ranked Plaintiff 5 out of 8 based on the

understanding of MCO P1610.7E he had at the time. Id.   Col. Scovel

also stated that, if he were to evaluate Plaintiff based on current

procedures, he would rank him 7 out of 8 instead of 5 out of 8:

          When [MCO P1610.7E] was published, a primary
          goal was to wring inflation out of the
          performance evaluation system.    We were all
          instructed that Bs and Cs were good marks, and
          blocks 3 and 4 . . . were fine, as well. When
          I marked [then] Major McGrady in the 5th
          block, I believed then that this mark would be
          viewed as “outstanding” and consistent with a
          “top 5%” comment.     Since then, however, I
          think inflation has returned, at least to some
          degree, and the fifth block is now seen as
          middle of the road.        This was not my
          intent . . . . As I now rank officers, a “top
          5%” comment equates to a marking in the      7
          block.

Id.

      In light of the amended Davidson Report, on September 16,

2003, Plaintiff requested the Secretary convene a SSB to consider



6
 (...continued)
evaluates the request through PERB, which conducts the initial
agency review. MCO 1610.11C ¶ 4a, Pl. Ex. 9 (Aug. 25, 2006) [Dkt.
No. 44-9]. If the CMC, through PERB, denies the application, it is
referred to the BCNR for final agency action. Id. at ¶ 9(h).
                                -6-
Plaintiff for promotion to Lieutenant Colonel. AR at 1-23.          While

Plaintiff’s SSB request was pending, the FY 2005 Lieutenant Colonel

Selection Board (“FY 2005 Selection Board”) considered Plaintiff

for a promotion. In connection with that proceeding, Plaintiff

provided the Board with a copy of the 2003 Scovel letter. Pl.’s

Stmt. of Facts ¶ 47. On January 6, 2004, Plaintiff learned that the

FY 2005 Selection Board denied his promotion to Lieutenant Colonel.

Id.

      On February 16, 2004, the CMC recommended denying Plaintiff’s

pending SSB request.    AR at 28-29.      On April 16, 2004, and without

further comment, the Secretary adopted the CMC’s recommendation and

denied Plaintiff’s SSB request.       AR at 75.

      On December 9, 2004, Plaintiff submitted a request to BCNR to

amend the Scovel Report to reflect a ranking of “7 out of 8"

instead of “5 out of 8.” AR at 582-83. On January 28, 2005, CMC,

through   PERB,   recommended    denying    Plaintiff’s   record   change

application,   noting   that    Scovel’s   performance    evaluation   was

correct at the time it was written and that the 2003 Scovel letter

was only an endorsement for promotion and not an official request

to change Plaintiff’s record.       AR at 465-66. On March 22, 2005,

Plaintiff responded to PERB’s recommendation and requested an SSB




                                    -7-
based on     the   FY   2005   Selection     Board’s   consideration   of    the

unamended Scovel Report.7 AR at 472.

     On February 7, 2005, Plaintiff submitted a request to the

Secretary for reconsideration of the April 16, 2004 denial of his

SSB request. AR 34-180. On July 25, 2005, CMC recommended that

Plaintiff’s SSB reconsideration request be “disallowed.”                   AR at

182-85. On August 17, 2005, Plaintiff filed a Complaint seeking

judicial     review     of     the   Secretary’s       denial   of   his     SSB

reconsideration request. Although, at the time, the Secretary had

not issued an actual decision on Plaintiff’s request, Plaintiff

argued that the reconsideration request should be “deemed denied”

under applicable statutory provisions.



7
 In response to PERB’s recommendation, Plaintiff submitted to BCNR
a second letter from Col. Scovel, which requested that the 1999
Scovel Report be amended. In his letter, Col. Scovel stated that:

           Failure to change the report unfairly colors
           [Plaintiff’s] performance because of the new
           evaluation system’s reliance on comparative
           assessments.      Those   who  may   look  at
           [Plaintiff’s] record now or in the future
           would be misled as to his performance during
           that period and as to his potential. This is
           not fair to the Marine or the Marine Corps,
           which relies on the performance evaluation
           system   to  make   a   myriad of   personnel
           decisions. [Plaintiff] has a right to an
           accurate evaluation.    The marking should be
           changed.

AR at 482.


                                       -8-
       On September 2, 2005, the Secretary, through BCNR, denied

Plaintiff’s request to amend the Scovel Report and to convene an

SSB on those grounds. AR at 651-52. On February 23, 2006, the

Secretary denied Plaintiff’s SSB reconsideration request.                      AR Vol.

I at 2-3 (certified May 17, 2006).

         Plaintiff filed an Amended Complaint on May 11, 2006 [Dkt.

No. 34]. On June 21, 2006, Defendants filed an Answer to the

Amended Complaint [Dkt. No. 38]. On July 25, 2006, Defendants filed

a Motion for Summary Judgment. On August 25, 2006, Plaintiff filed

a Cross Motion for Summary Judgment as well as a Memorandum in

Opposition to Defendants’ Motion for Summary Judgment [Dkt. No.

45]. On     October   20,   2006,   Defendants         filed   an    Opposition to

Plaintiff’s Cross Motion for Summary Judgment and Reply in Support

of Defendants’ Motion for Summary Judgment [Dkt. No. 49]. On

November    13,   2006,     Plaintiff     filed    a    Reply       to   Defendants’

Opposition to Plaintiff’s Motion for Summary Judgment [Dkt. No.

51].

II. Standard of Review

       Judicial review in this case is based upon the APA and 10

U.S.C. § 628, which provides federal courts with jurisdiction to

review military agency actions relating to SSBs. Both statutes

accord    substantially     similar     levels    of    deference        to   military

administrative actions. See Homer v. Roche, 226 F. Supp. 2d 222,


                                        -9-
225 (D.D.C. 2002) (holding that “the standard adopted by § 628(g)

largely echoes that found in the APA”).

     In reviewing military agency action, a court may set aside a

decision if it is arbitrary or capricious, not based on substantial

evidence, the result of material errors of fact or a material

administrative error, or is otherwise contrary to the law. 5 U.S.C.

§ 706(2); 10 U.S.C. § 628(g)(1)(A). In conducting its review, the

court   employs   an   “unusually    deferential   application   of   the

‘arbitrary and capricious’ standard . . . .” Kreis v. Sec’y of Air

Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989). As our Court of

Appeals has held “[p]erhaps only the most egregious decisions may

be prevented under such a deferential standard of review.” Id. at

1515.

     To survive judicial review, the military agency’s decision

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

deference, against the ‘arbitrary or capricious’ standard of the

APA.” Id. at 1514-15. The court will set aside an agency decision

“only when the record is so compelling that no reasonable fact

finder could fail to find to the contrary” Lakeland Bus Lines,

Inc., v. NLRB, 347 F.3d 955, 961 (D.C. Cir. 2003).

     Plaintiff has the burden of proving by ”’cogent and clearly

convincing evidence’ that the [military administrative] decision

was the result of a material legal error or injustice.” Cochrane v.


                                    -10-
Wynne, 541 F. Supp. 2d 267, 271 (D.D.C. 2008) (citation and

internal quotations omitted). To satisfy this burden, plaintiff

must   “overcome   the       strong,   but    rebuttable,    presumption   that

administrators     of    the    military,     like   other   public   officers,

discharge their duties correctly, lawfully, and in good faith.”

Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997)(citation and

internal quotations omitted).

       When   review    is     based   upon    the   administrative     record,

“[s]ummary judgment is an appropriate procedure for resolving a

challenge to a federal agency’s administrative decision . . . .”

Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995).

The court must limit its review to the administrative record, which

“includes all materials compiled by the agency that were before the

agency at the time the decision was made.” James Madison Ltd. v.

Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996)(citations and internal

quotations omitted).

III. Analysis

       Plaintiff    seeks       judicial      review    of    the     following

administrative actions: (1) the Secretary’s September 2, 2005

denial of Plaintiff’s request to correct the Scovel Report and

accompanying request to convene an SSB, Am. Compl., Count 3-4; and

(2) the Secretary’s denial of Plaintiff’s SSB reconsideration

request based on the Davidson Report error, id. at Counts 1-2.


                                       -11-
     A.    The Secretary Did Not Act Arbitrarily or Capriciously in
           Denying Plaintiff’s Request to Amend the Scovel Report
           and to Convene an SSB

           1.   The Secretary’s Decision Denying Amendment of the
                Scovel Report

     The Secretary denied Plaintiff’s request to correct the Scovel

Report on the grounds that the Report “was both administratively

correct and procedurally complete as written and filed.” AR at 465,

651. In seeking judicial review of this conclusion, Plaintiff

argues that the Secretary’s decision was: (1) contrary to law; and

(2) not based on substantial evidence.8 Pl.’s Mot. 46-51.      9




8
 Plaintiff also raises a number of additional challenges to the
Secretary’s decision.
     First, Plaintiff argues that because the Davidson and Scovel
Reports “are similar in that the marks unfairly color Plaintiff’s
performance” the Secretary should have accorded them the same
treatment and amended the Scovel Report. Pl.’s Mot. 51. However, as
Plaintiff himself points out, the basis for the alleged error in
the Davidson Report (Davidson’s falsification of Plaintiff’s
ranking) was different from the reason Plaintiff presented for
amending the Scovel Report (a change in Scovel’s grading
philosophy). Accordingly, Plaintiff is incorrect in characterizing
the Reports as similar and deserving of the same treatment.
     Second, Plaintiff argues that because the Secretary has
allowed Plaintiff to continue submitting Col. Scovel’s retraction
letter to future selection boards, the Secretary has admitted that
the Scovel Report is unfair and inaccurate. Id. at 53. Plaintiff
has no basis for reaching this conclusion as the Secretary’s
decision to permit Plaintiff to continue presenting Scovel’s letter
is in accordance with Navy regulations and established BCNR
practice. Mueller v. Winter, 485 F.3d 1191, 1199 (D.C. Cir. 2007).
Morever, “[w]here the BCNR has no more evidence than it had here to
determine whether a reviewer changed his report out of sympathy for
a disappointed officer, there is nothing arbitrary about retaining
both [documents] and permitting future promotion boards to give
                                                          (continued...)


                                  -12-
The Court reviews Plaintiff’s challenge to the Secretary’s decision

under the APA.10 Musengo v. White, 286 F.3d 535, 538 (D.C. Cir.

2002).




8
 (...continued)
each [] the credit they believe it deserves.” Id. at 1199.
         Third, Plaintiff argues that the BCNR was prohibited from
affirming PERB’s recommended denial of Plaintiff’s request because
PERB applies a higher burden of proof than BCNR. Pl.’s Mot. 54.
Plaintiff is correct that a different burden of proof is required
by the two boards. See MCO 1610.11C, ¶ 10a (PERB may recommend
amending an officer’s record where the “applicant presents an
amount of relevant evidence tending to prove that the allegations
contained in the application are more likely true than not”); 32
C.F.R. § 723.3(e)(2) (in deciding record change requests BCNR
“relies on a presumption of regularity to support the official
actions of public officers and, in the absence of substantial
evidence to the contrary, will presume that they have properly
discharged their official duties”). Nevertheless, Plaintiff has
cited no statute, regulation, or other authority establishing that
the BCNR is prohibited from affirming a PERB decision on a record
change application. In the absence of authority, this Court should
not intrude upon the regulatory framework that Congress and the
military have established for review of military personnel matters.
Kreis, 866 F.2d at 1511.
9
 Pursuant to 10 U.S.C. § 1552(a)(1), the Secretary “may correct any
military record of the Secretary’s department when the Secretary
considers it necessary to correct an error or remove an injustice.”
In bringing a request under Section 1552, the burden of proof rests
with petitioner. MCO 1610.11C, ¶ 10a; 32 C.F.R. § 723.3(e)(2).
10
   In order to survive judicial review, the Secretary’s decision
must include “the reasons for the determination that relief should
not   be   granted,   including   the   applicant’s   claims   for
constitutional, statutory, and/or regulatory violations that were
rejected, together with all the essential facts upon which the
denial is based . . . .” 32 C.F.R. § 723.3(e)(4).


                                -13-
                a.    The Secretary’s Decision Was Not Contrary to
                      Law

     MCO 1610.7E provides the legal basis for the Secretary’s

conclusion that the Scovel Report was “administratively correct and

procedurally complete” when written. In this regard, the Secretary

concurred in PERB’s determination that “[n]othing in MCO 1610.7E

provides reporting officials with the advantage of hindsight,

combined with subsequent years of service and observations, to

change   previously   assigned   evaluative   grades   or   comparative

assessments.” AR at 465.

     Plaintiff claims that this holding is contrary to law because

another section of MCO 1610.7E, Paragraph 8002.1(e), requires

amending the Scovel Report, Pl.’s Mot. 48-51:

           Reporting senior[] [officers] [“RS”] must
           accurately and fairly assess the performance
           of their subordinates; RSs who fail to do so
           will unwittingly and unfairly discriminate
           against either earlier reports or subsequent
           reports.
                ....

                (2) Reporting seniors who attempt to
                change their rating philosophy may either
                positively or negatively affect the
                relative value of reports for [the
                officers] they previously rated.

                      (a) When the RS changes his or her
                      grading philosophy and grades
                      higher, he or she diminishes the
                      value of all preceding reports ever
                      written.



                                  -14-
MCO 1610.7E, ¶ 8002.1(e)(2)(a). Plaintiff argues that the Scovel

Report’s alleged error violates Paragraph 8002.1 (e)(2)(a) and that

the Secretary, therefore, acted contrary to law by failing to amend

the Report. Pl.’s Mot. 50. However, as Defendants correctly argue,

the clear and plain language of Paragraph 8002.1(e) merely cautions

officers to maintain consistent grading philosophies and does not

suggest that a change in grading philosophy serves as a basis for

amending a performance evaluation.

        Moreover, the Secretary’s interpretation of MCO 1610.7E is

consistent with Marine Corps regulations governing requests to

correct performance evaluations,11 as well as the military’s general

position that “post-hoc reevaluations by reporting seniors are

insufficient to overcome the presumption of regularity, based on

the understanding that raters may attempt to retract otherwise



11
     Under Paragraph 11(b) of MCO 1610.11C,

             Appeals supported by statements from reporting
             officials who in retrospect, attempt to refute
             specific deficiencies cited by them in the
             contested report(s) are not usually approved.
             Specific evidence of error in judgment,
             misinterpretation of facts and circumstances,
             and so on, must be provided. Statements that
             merely    allude  to    changed   perspectives
             following    some   unfavorable   event   (non
             selection for promotion, regular appointment,
             professional schooling, etc.) that may be
             attributable to the report(s) are of little
             value.


                                  -15-
accurate assessments when requested to do so by their disappointed

officers.” Mueller, 485 F.3d at 1198.

     For these reasons, Plaintiff has failed to demonstrate that

the Secretary’s decision is contrary to law.

               b.   The   Secretary’s   Decision    Is   Based   on
                    Substantial Evidence

     In challenging the Secretary’s decision on the grounds of

substantial evidence, Plaintiff argues that the Secretary’s denial

was based on the erroneous belief that Col. Scovel’s perception of

Plaintiff had changed, when in fact it was his grading philosophy

that had changed. Pl.’s Mot. 47. However, Plaintiff’s argument,

which is based on PERB’s recommendation to BCNR, is not supported

by the recommendation’s text, which clearly states that there had

been a change in Colonel Scovel’s grading philosophy. AR at 466.

     Plaintiff does not present any other arguments suggesting that

the Secretary’s decision is not supported by substantial evidence,

which is defined as “‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Smith v.

Dalton, 927 F. Supp. 1, 5 (D.D.C. 1996) (quoting Cruse v. Bowen,

867 F.2d 1183, 1184 (8th Cir. 1989)). In fact, a review of the

record demonstrates that   PERB’s recommended denial of Plaintiff’s

request as well as BCNR’s adoption of that recommendation were




                                -16-
based on substantial evidence.12

     In   sum,   Plaintiff   has   failed   to   demonstrate   that   the

Secretary’s decision is not supported by substantial evidence in

the record.

           2.    The Secretary’s Decision on Plaintiff’s SSB Request

     In declining to convene an SSB based upon the Scovel Report,

the Secretary noted that since “there was no defect in the Scovel

Report, there was no basis for granting an SSB on those grounds. AR

at 652. This conclusion is consistent with 10 U.S.C. § 628, which


12
 In recommending denial of Plaintiff’s record change request, PERB
cited to several key pieces of evidence:

           [S]ince reviewing the challenged fitness
           report in 1999, the Reviewing Officer (Colonel
           Scovel) has changed the manner in how he now
           grades/rates    fitness   reports.    It   is,
           therefore, the petitioner’s contention that a
           mark in Block 7 of the Comparative Assessment
           . . . more appropriately reflects Colonel
           Scovel’s comment that he was in the ‘top 5% of
           majors’ on whom he wrote. To support his
           appeal the petitioner furnishes a copy of
           Colonel Scovel’s letter to the President of
           the [FY 2005 Selection Board.

AR at 465.

     In affirming PERB’s recommendation, the BCNR also noted the
evidence it reviewed prior to reaching its determination: (1)
Plaintiff’s original record change application, all documents
submitted in support thereof, and Plaintiff’s naval record; (2)
applicable statutes, regulations and policies; and (3) Plaintiff’s
rebuttal letters, dated March 22, 2005 and August 26, 2005, to the
PERB recommendation, as well as attachments thereto. AR at 651.



                                   -17-
allows the Secretary to convene an SSB only where there has been

“material unfairness:”

           If the Secretary of the military department
           concerned determines, in the case of a person
           who was considered for selection for promotion
           by a promotion board but was not selected,
           that there was material unfairness with
           respect to that person, the Secretary may
           convene a special selection board under this
           subsection to determine whether that person
           . . . should be recommended for promotion. In
           order to determine that there was material
           unfairness, the Secretary must determine that
           –

                (A) the action of the promotion board
           that considered the person was contrary to law
           in a matter material to the decision of the
           board or involved material error or material
           administrative error; or

                (B) the board did not have before it for
           its consideration material information.


Id. at § 628(b)(1). Because the Secretary did not act arbitrarily

or capriciously in concluding that there was no error in the Scovel

Report, the Court concludes that the Secretary’s decision not to

convene an SSB was also proper.

      For the foregoing reasons, the Court concludes that Plaintiff

has   failed   to   show   that   the     Secretary   acted   arbitrarily   or

capriciously in denying Plaintiff’s request to amend the Scovel

Report and convene an SSB.




                                        -18-
     B.   The Secretary Did Not Act Arbitrarily or Capriciously in
          Denying Plaintiff’s Reconsideration Request Based on the
          Davidson Report

     Plaintiff raises two challenges to the Secretary’s denial of

Plaintiff’s SSB reconsideration request. First, Plaintiff argues

that the Secretary’s February 23, 2006 decision should not be

considered. Second, Plaintiff argues that the denial of his SSB

reconsideration request was arbitrary and capricious and not based

on substantial evidence. The Court will consider each of these

arguments in turn.

          1.    The Secretary’s February 23, 2006 Decision Is a
                Final Agency Decision and Therefore Is Properly
                Considered

     Plaintiff presents two arguments as to why the February 23,

2006 decision   should   not   be   considered by the   Court. First,

Plaintiff claims there was a final agency decision on his SSB

reconsideration request on August 9, 2005 when Plaintiff’s request

was “deemed denied” pursuant to 10 U.S.C § 628(g).13 Pl.’s Mot. 3.

Second, Plaintiff argues that the February 23, 2006 decision was

rendered solely for purposes of this litigation and should not be

considered by the Court. Id. at 4-7.



13
 Although Plaintiff argues against the Court’s consideration of the
February 23, 2006 decision, in his Amended Complaint, he presents
the decision as an alternate ground for judicial review should the
Court reject his claim that the SSB reconsideration request was
“deemed denied.” Am. Compl., Count 1-2.


                                    -19-
     With regard to his first argument, Plaintiff is incorrect that

10 U.S.C § 628(g) applies to SSB reconsideration requests. Under

that statutory provision, “[i]f, six months after receiving a

complete application for consideration by a special selection board

under this section in any case, the Secretary concerned has not

convened such a board and has not denied consideration by such a

board in that case, the Secretary shall be deemed for the purpose

of this subsection to have denied the consideration of the case by

such a board.” 10 U.S.C. § 628(g)(3)(A). The plain language of the

statute makes clear that the six-month limitation period applies to

initial requests to convene an SSB and nowhere suggests that that

limitations period also extends to requests to reconsider previous

SSB denials.

     With regard to his second argument, Plaintiff has failed to

show that the February 23, 2006 decision is an impermissible post-

hoc rationalization issued merely for the purposes of litigation.

As the case law makes clear, the rule barring consideration of

post-hoc agency rationalizations applies “where an agency has

provided a particular justification for a determination at the time

the determination is made, but provides a different justification

for the same determination when it is later reviewed by another

body.” Independence Mining Co. v. Babbitt, 105 F.3d 502, 511 (9th

Cir. 1997).


                                -20-
       Plaintiff   argues   that     the    February   23,   2006    decision

constitutes a post-hoc rationalization because it issued several

months after Plaintiff originally sought review in this Court and

because it denied Plaintiff’s reconsideration request on grounds

not contained in the Secretary’s April 16, 2004 decision. Pl.’s

Mot. 4-7, 22. While Plaintiff is correct about the timing of the

Secretary’s February 23, 2006 decision, Plaintiff is incorrect that

the grounds for dismissal contained in that decision constitute a

post-hoc rationalization. The February 23, 2006 decision presented

two rationales for denying Plaintiff’s SSB reconsideration request.

First, it affirmed the Secretary’s April 16, 2004 decision denying

Plaintiff’s original SSB request because he had failed to exercise

reasonable diligence. AR Vol. I at 2-3.         Second, it concluded that

denial was also appropriate because the Davidson Report did not

amount to material unfairness. Id. Plaintiff argues that this

ruling on “material unfairness” was impermissible as a post-hoc

rationalization. However, the “material unfairness” rationale was

only    a   supplemental    ground    for    denial,   not   a      “different

justification for the same determination when it is later reviewed

by another body.”

       For these reasons, the Court concludes that the February 23,

2006 decision is the final agency decision on Plaintiff’s SSB




                                     -21-
reconsideration request and is properly considered by the Court.

          2.    The Secretary’s Decision to Deny Plaintiff’s SSB
                Reconsideration Request Was Neither Arbitrary Nor
                Capricious

     Plaintiff argues that the Secretary acted arbitrarily and

capriciously in concluding that the Davidson Report error did not

constitute   material    unfairness   and   that   Plaintiff   failed   to

exercise reasonable diligence. Pl.’s Mot. 20-44. The Court reviews

Plaintiff’s challenge under 10 U.S.C. § 628(b).14

                a.      The   Secretary’s     Decision    on    Material
                        Unfairness

     On the issue of material unfairness, the Secretary’s February

23, 2006 decision concluded that:

          [T]here is no evidence that, at the time the
          report was written, the reporting senior
          failed to consider all issues pertaining to
          the three first lieutenants he was evaluating.
          To the contrary, the fitness report was
          accurate, and based on the reporting senior’s
          opinion at the time. Subsequent regret over
          the consequence of a ranking decision does not


14
 Plaintiff argues that the Court’s review of the February 23, 2006
decision arises under the APA, rather than 10 U.S.C. § 628. Pl.’s
Mot. 7. However, Section 628 states that, “[a] court of the United
States may review a determination by the Secretary of a military
department . . . not to convene a special selection board in the
case of any person.” As is clear, the Secretary’s February 23, 2006
decision affirming the Navy’s denial of Plaintiff’s original SSB
request constitutes “a determination by the Secretary of a military
department . . . not to convene a special selection board . . . .”
Accordingly, 10 U.S.C. § 628 governs the Court’s review of the
February 23, 2006 decision.


                                  -22-
             constitute material error and reconsideration
             after the fact, motivated by an individual
             failing of selection, does not form the basis
             for granting a Special Selection Board.

                  Furthermore, the fitness report covered
             less than four months of, at the time of the
             board, more than 15 years of active duty. With
             this same report unchanged, Major McGrady was
             promoted to captain and major.

AR Vol. I at 2-3.

       Plaintiff raises several challenges to the Secretary’s finding

of    no   material   unfairness.    First,   Plaintiff    argues   that   the

Secretary’s conclusion contradicts the BCNR’s August 26, 2003

decision to correct the Davidson Report. Pl.’s Mot. 22-24. Second,

Plaintiff argues that the Secretary’s April 16, 2004 decision

already conceded the issue of material unfairness. Id. at 21-22.

Third, Plaintiff argues that the Secretary’s February 23, 2006

decision is not substantially supported by the evidence. Id. at 24-

29.

       With regard to the BCNR’s August 26, 2003 decision, the record

shows that the BCNR made no ruling on material unfairness, nor did

it    in   any   other   way   conclude   that   the   Davidson   Report   was

“material” as defined under 10 U.S.C. § 628.15 With regard to the


15
 The BCNR is not required to find that an error is material in
order to correct a military record. See 10 U.S.C. § 1552(a)(the
BCNR “may correct any military record of the Secretary’s department
                                                          (continued...)


                                      -23-
Secretary’s April 16, 2004 decision, as previously mentioned, that

decision denied Plaintiff’s request for an SSB based on his lack of

reasonable diligence. Although the decision did make findings of

fact that could have been used to reach a conclusion on material

unfairness, the Secretary plainly chose not to do so.16 He did not,

therefore, “concede” the issue of material unfairness.

     With   regard   to   the   issue     of   substantial   evidence,   the

Secretary based his conclusion on the following key pieces of

evidence: (1) the BCNR’s August 26, 2003 decision17 correcting the

Davidson Report to reflect a ranking of 1 out of 3 and ordering




15
 (...continued)
when the Secretary considers is necessary to correct an error or
remove an injustice”).
16
 Although the Secretary’s April 16, 2004 decision does suggest that
the error in the Davidson Report “may have been a competitive
concern,” the Secretary did not ultimately reach a conclusion on
this issue. See AR Vol. I at 71 (“The presence of the fitness
report for the period 1 August 1990 to 26 November 1990 in Major
McGrady’s record may have been a competitive concern, however,
Major McGrady reasonably should have known the nature of the
ranking and should have taken appropriate steps to highlight or
correct the fitness report prior to the [FY 2004 Selection Board]
convening.”).
17
  While Plaintiff suggests that the Secretary did not review the
BCNR’s August 26, 2003 decision, it was in fact plainly referenced
in the Secretary’s February 23, 2006 decision. Moreover, the BCNR’s
decision was also cited in the Secretary’s April 16, 2004 decision
and was therefore part of the record accompanying Plaintiff’s SSB
reconsideration request. Pl.’s Reply 14.


                                   -24-
other relief;18 (2) the fact that, at the time of the FY 2004

Selection Board, the Davidson’s Report covered less than four

months of Plaintiff’s fifteen years of active duty; and (3) the

fact that, even before the Davidson Report had been corrected,


18
 In relevant part, the BCNR recommended that the following remedial
action be taken on plaintiff’s record change request:

          (a)   That  Petitioner’s   naval  record   be
          corrected by modifying the fitness report for
          1 August to 26 November 1990, signed by
          Captain D.W. Davidson and dated 10 December
          1990, by changing the item 15 peer ranking
          from “3" of “3" to “1" of “3."

          (b)   That   Petitioner’s   naval   record   be
          corrected   further so     that he    will   be
          considered by the earliest possible selection
          board convened to consider officers of his
          category for promotion to lieutenant colonel
          as an officer who has not failed selection for
          promotion to that grade.

          (c) That any material or entries inconsistent
          with or relating to the Board’s recommendation
          be corrected, removed or completely expunged
          from Petitioner’s record and that no such
          entries or material be added to the record in
          the future.

          (d) That any material directed to be removed
          from Petitioner’s naval record be returned to
          this Board, together with a copy of this
          Report of Proceedings, for retention in a
          confidential file maintained for such purpose,
          with no cross reference being made a part of
          Petitioner’s naval record.

AR Vol. I at 31.



                                -25-
Plaintiff had   received a promotion from captain to major. AR Vol.

I at 2-3.19

       In deciding whether the Secretary’s decision is based on

substantial evidence, the Court must not base its finding “‘merely

on the basis of evidence which in and of itself justified [the

Board’s decision] without taking into account the contradictory

evidence or evidence from which conflicting inferences could be

drawn.’” Lakeland, 347 F.3d at 962 (quoting Universal Camera Corp.,

v NLRB, 340 U.S. 474, 488, 71 S. Ct. 456 (1951)). While Plaintiff’s

reconsideration request does present additional arguments in favor

of convening an SSB,20 the Court cannot conclude that this evidence


19
 In the February 23, 2006 decision, the Secretary also noted that
the FY 2005 and 2006 Selection Boards denied Plaintiff’s promotion
application, even though he was “in zone” and the corrected
Davidson Report had been included in his file. AR Vol. I at 2.
Plaintiff argues that the Secretary should not have considered
these facts as Plaintiff’s consideration by the FY 2005 and 2006
Selection Boards is irrelevant to determining whether Plaintiff
suffered material unfairness before the FY 2004 Selection Board.
Pl.’s Reply 15-16. While Plaintiff’s argument is not without merit,
the Secretary’s decision on material unfairness does not rely on
Plaintiff’s consideration by the FY 2005 and 2006 Selection Boards.
20
 Plaintiff raises the following evidence and arguments in support
of his claim that an SSB was warranted: (1) the fact that the
Davidson Report was a transfer report, and that “being ranked last
[on such a report] sends a strong negative signal to the promotion
board;” (2) evidence from two other officers who had similar career
patterns as Plaintiff that allegedly demonstrates that the
selection boards “place[] dispositive weight on competitive
rankings;” (3) an advisory report from a career counselor
                                                          (continued...)


                                  -26-
is so compelling that the Secretary “could [not] have fairly and

reasonably found the facts that it did,” Morall v. DEA, 412 F.3d

165, 176-77 (D.C. Cir. 2005).

          b.      The Secretary’s Decision on Reasonable Diligence

     On the issue of reasonable diligence, the Secretary’s February

23, 2006 decision concluded that:

          Major   McGrady   did  not   demonstrate   the
          [reasonable] diligence required. Secretary of
          the Navy regulations issued pursuant to title
          10, U.S. Code section 628(j) state that a
          selection board will not be convened to
          consider any officer who, through the exercise
          of reasonable diligence, might have discovered
          and corrected the errors or omission in the
          record prior to the convening of the Fiscal
          Year 2004 board; during those twelve years, he
          was aware of his 3 of 3 ranking, but took no
          action to change, or even inquire into the
          circumstances surrounding, the ranking.

AR Vol. I at 3.

     In accordance with 10 U.S.C. § 628 as well as applicable

military regulations, the Secretary’s authority to convene an SSB

for material unfairness depends upon petitioner’s exercise of

reasonable     diligence   in   discovering   any   material   errors   or

mistakes. See Department of Defense Instruction 1320.11 (directing



20
 (...continued)
suggesting that “a change in the ranking would ‘improve’”
Plaintiff’s record; and (4) evidence that promotion opportunities
decrease as an officer becomes more senior. Pl.’s Mot. 24-28.


                                    -27-
that an SSB “shall not . . . consider any person who may, by

maintaining reasonably careful records, have discovered and taken

steps to correct that error or omission on which the original board

based its decision against promotion”).

      In   challenging   the   Secretary’s    decision     on   this   issue,

Plaintiff raises several arguments. First, Plaintiff argues that

the Secretary’s decision on reasonable diligence contradicts the

BCNR’s August 26, 2003 decision that Plaintiff’s record change

request was timely. Pl.’s Mot. 39. Second, Plaintiff argues that

the   Secretary’s   decision    ignores      substantial    evidence     that

Plaintiff had no reasonable basis to question the accuracy of the

Davidson Report prior to 2003. Id. at 32-43. Third, Plaintiff

argues that the Secretary’s decision fails to identify “objective

factors” used to identify reasonable diligence. Id. at 29-32.

      With regard to the BCNR’s August 26, 2003 decision, Plaintiff

has failed to show that the BCNR’s ruling on timeliness conflicts

with the Secretary’s ruling on reasonable diligence. In its August

26, 2003 decision, the BCNR held that Plaintiff’s petition to amend

the Davidson Report was timely even though it was filed some

thirteen years after the Davidson Report was issued. Pl.’s Mot.




                                   -28-
39.21   Plaintiff argues that the by permitting Plaintiff to proceed

with his record correction request the BCNR essentially concluded

that “there was no reasonable basis for contesting the [Davidson

Report] until discovery of the error [in] 2003.” Pl’s Mot. 40.

However, BCNR’s conclusion that the petition to correct the error

in the Report was      timely does not amount to a finding that

Plaintiff was reasonably diligent in actually discovering that

error.

        With regard to substantial evidence, the Secretary’s decision

was based on the following facts: (1) during the twelve years

between the issuance of the Davidson Report and the FY 2004

Selection Board Plaintiff was aware of his “3 of 3” ranking; and

(2) Plaintiff did not question the ranking’s accuracy until after

he was denied promotion by the FY 2004 Selection Board.22 AR Vol.

I at 3, 71. Although Plaintiff did present evidence suggesting he

had no reason to believe the Davidson Report was incorrect until



21
 Under 10 U.S.C. § 1552(b), the Secretary is authorized to correct
a military record only if “the claimant . . . files a request for
the correction within three years after he discovers the error or
injustice. . . . [or] if it [is] in the interest of justice.”
22
  In the April 16, 2004 decision, the Secretary also noted that
“correction of an error in an officer’s record, after the officer
incurs a failure of selection by a promotion board, will not
necessarily be the basis for convening a special selection board.”
AR Vol. 1 at 71.


                                  -29-
2003, this evidence is not compelling enough to outweigh the

Secretary’s     finding    that     Plaintiff      should    have,       but    did   not

question the Davidson Report for some thirteen years and did so

only   after   he     believed    his    promotion       opportunities         had    been

adversely affected by the Report. See Mueller, 485 F.3d at 1200

(holding    that    Navy’s   denial      of     petitioner’s      SSB    request       was

reasonable     even    though    there     may    have    also    been     substantial

evidence supporting petitioner’s claim); Morall, 412 F.3d at 176

(“In applying the substantial evidence test, we have recognized

that an agency decision may be supported by substantial evidence

even though a plausible alternative interpretation of the evidence

would support a contrary view.”)(citation and internal quotations

omitted).

       For similar reasons, the Secretary’s decision demonstrates the

“objective     factors”      used    for      determining        whether       Plaintiff

exercised reasonable diligence.23 The Marine Corps Promotion Manual


23
  Plaintiff argues that the Secretary has failed to show that
Plaintiff did not act with reasonable diligence because he complied
with the applicable Marine Corps regulation for ensuring the
accuracy of his records prior to appearing before the FY 2004
Selection Board. Pl.’s Mot. 29-31. There is no dispute that
Plaintiff was in compliance with this regulation. Defendant’s Reply
to Plaintiff’s Statement of Material Facts on Which There is No
Genuine Issue in Support of His Motion for Summary Judgment ¶ 57
(Oct. 20, 2006) [Dkt. No. 49-1]. However, as reflected in the
Marine Corps’ Judge Advocate Division’s legal opinion(“Judge
                                                          (continued...)


                                         -30-
defines “reasonable diligence” as the “fair, proper, and due degree

of care and activity, measured with reference to the particular

circumstance;   such    diligence      care    and   attention     as   might    be

expected from a man/woman of ordinary prudence and activity.” MCO

P1400.31B ¶ 5002.2(c), Pl. Ex. 7 (Aug. 25, 2006) [Dkt. No. 44-8].

In assessing whether the Secretary has provided a sufficient basis

for concluding that Plaintiff failed to meet this standard, the

Court must determine whether the Secretary has “give[n] a reason

that the Court can measure, albeit with due deference.” Kreis, 866

F.2d at    1514-15.    Where the    “agency’s        path   may   be reasonably

discerned,” a “reviewing court will uphold a decision of less than

ideal clarity . . . .” Frizelle, 111 F.3d at 176 (citation and

internal   quotations      omitted).    Here,    the    Secretary’s     decision

clearly    states   that   Plaintiff’s        request   failed    to    meet    the

regulatory requirement of reasonable diligence and provides facts

to support its conclusion.24


23
 (...continued)
Advocate’s Opinion”) on Plaintiff’s original SSB request,
compliance with this regulation alone does not necessarily satisfy
the requirement of reasonable diligence. AR at 28.
24
  Plaintiff argues that the Secretary’s decision that Plaintiff
failed to exercise reasonable diligence was based on the Judge
Advocate’s Opinion that Plaintiff had failed to consult with a
career counselor before the FY 2004 Selection Board convened. Pl.’s
Mot. 31. While it is true that the Judge Advocate’s Opinion made
                                                          (continued...)


                                       -31-
     For the foregoing reasons, the Court concludes that the

Secretary did not act arbitrarily or capriciously in denying

Plaintiff’s SSB reconsideration request based on the Davidson

Report.

IV. Conclusion

     For all the reasons stated herein, Defendants’ Motion for

Summary Judgment is granted in full and Plaintiff’s Cross Motion

for Summary Judgment is denied in full. An Order will accompany

this Memorandum Opinion.




                                      /s/
September 16, 2011                   Gladys Kessler
                                     United States District Judge




24
 (...continued)
this finding, the Secretary’s decision is no way references or
relies on this conclusion.


                              -32-
