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 of1 Being in nonrated status means that the officer being evaluated

is no t performing work related to his duty position. Stoneburner

was on leave and in school preparing for a new assignment during

the 53 days.

2 discretion, and unsupported by substantial evidence. He also

alleges that the Army’s evaluation procedures violat e 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 t he 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 status 1 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 durin g the rating period. AR 623-

105, ¶ 4-10(c)(3). Richardson had 88 days, including both rated

and nonrated days, to observe and ev aluate Stoneburner; English3

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 professionalis m and described his

performance and potential as “always exceed[ing] requirement.” He

commented that “LTC Stoneburner has performed hi s duties as

Operations and Training Officer in an exemplary manner. . . . LTC

Stoneb urner is a fine U.S. Army Reserve Officer and has

demon strated 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 perform ance

he has demonstrated a very capable ability to

plan , schedule, and coordinate Reserve

Component trainin g. 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.4

After receiving the OER, Stoneburner requested a “Commander’s

Inquiry” to correct alleged errors and in justices 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 bec ause Richardson was technically

qualified to perform the rating. He did question the fairness of

an evaluation by a senior rater who had had onl y 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.

S toneburner appealed a second time to the OSRB, raising

essen tially the same allegations. The OSRB contacted the rater,

English, who reported that Stoneburner’s performance over the last5

five to six months of the rating period had deteriorated

significantly. He cited “a bad attitude” and noted that

Stoneburner “did no t 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 hi s own OER

comment s and, because he did not see Stoneburner as having

potential for promotion to ful l colonel, he had rated him

accordingly.

The OSRB denied t his 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, i nter alia

,

tha t the OER did not meet the criteria to be classified as a2 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 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 pr ocess claim was not

supported by the record because the applic a ble 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 ev idence to

demonstrate the existence of probable error or injustice.

Stoneburner appealed the ABCMR decision to the district court.

He claimed that the ABCM R’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 cro ss-motion for summary judgment. He7

attacked the constituti onality 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 i n 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

u nder AR 623-105, ¶ 3-10(b)(1) to act as a senior rater. He

contended th at 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 Stonebu rner 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 in terest 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 court8

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 d ays 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.” C happell 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. G eyen v. Marsh

, 775 F.2d 1303,

1309 (5th Cir. 1985).

B. The Officer Evaluation Report9

Stoneburner attacks the validity of the OER on tw o 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. I d. In response to General

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

to qualify based on rated days an d the senior rater to qualify

solely on calendar days, the U.S. Total Army Pers onnel 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,10 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 dete rmined 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 pri or 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 any11 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 seni or rater, are

so derogatory that the report may have an

adverse impact on the rated officer’s

career.

i. A ny 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 t hat 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 “LTC12

Stoneburn er 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

contribut ion.” When presented with the choices for promotion,

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

select “Promote ahead of contempora ries,” “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 su fficient to cause the senior rater to consider them

derogatory and consequently classify this as a referred report.

The senior rater, Richardson, assigned medioc re 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 mobilizat ion 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 M u s e

, the13

“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 no t always thoroughly

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

on Stonebu rner’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 advance ment, the

OER did not reflect this.

A review of the summary judgment proof reflects that the ABCMR

had the entire record before it i n making its decision. That

reco rd 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

conside red 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 capriciou s. Accordingly, we affirm the3 AR 623-105, ¶ 3-10(b)(1); AR 623-105, ¶ 4-10(c)(3).

4 Bolling v. Sharpe , 347 U.S. 497 (1954).

14 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

rater s. 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 incorpora ted into the Fifth

Amendment’s due process right 4

, 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. M uhammad

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

allege purp oseful or intentional discrimination. M cCleskey v.

Kemp

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

Army has no rational basis for treating similarly situated persons5 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 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 b e 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, s upra

, § IIB, the

U.S. Army Total Personnel Agency opinion pro vides 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 cal endar 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 affirm16

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

protection issue and deny Stoneburner’s motion to enlarge the

record.

AFFIRMED.