Up or Out?

By on May 17, 2007 in Current Events with 0 Comments

You’ve heard the old saying, “up or out” in connection with military service? Officers who don’t get promoted eventually get shown the door. Here’s a recent federal court of appeals decision in a case where a Navy Lieutenant Commander in the Judge Advocate General’s Corps did not get promoted because of a so-so fitness report. He ended up suing the Navy in what turned out to be an unsuccessful effort to turn his fortunes around. The federal district court, and now the appeals court, rejected the LCDR’s arguments. (Mueller v. Winter, Secretary of the Navy and Department of Navy, C.A.D.C. No. 05-5396, 5/11/07)

LCDR Mueller’s problems started with a 1999 fitness report prepared by his boss, Rear Admiral Weiss. Fitness reports on officers are used in the Navy for making decisions involving promotion, advanced training, duty assignments, etc. The appeals court’s decision goes into a fair amount of detail as to procedures governing these fitness reports in the Navy. The process is somewhat akin to the performance evaluation system for civilian employees in most federal agencies.

For our purposes, suffice it to say that RADM Weiss gave Mueller a report that was “generally quite favorable” but it “painted a somewhat less positive picture of Mueller than both the report that directly preceded it and the one that directly followed it.” He rated Mueller a “must promote” as opposed to the highest possible promotion rating available. (Opinion p. 3)

When the Navy promotion board met some 17 months later, it did not select Mueller for promotion to the rank of Commander. (p. 3)

Mueller then requested that Weiss reconsider the troublesome fitness report. Weiss eventually elevated Mueller’s ranking in four performance categories; changed the promotion recommendation to the highest available, “Early Promote;” left the fitness narrative the same, but added a cover letter indicating that the original ratings of Mueller were “harsher than required.” (p. 4)

Mueller then tried to get the Navy to substitute the newly revised report for the original fitness report. At the same time, Mueller requested that the Secretary of the Navy convene a special selection board to reconsider the earlier board decision that had denied him a promotion to Commander. The Navy, finding that Mueller had not proved the original fitness report to be “unjust or in error,” declined to erase that first report from its records. Further, the Secretary declined to convene a special board, finding that Mueller had not been duly diligent in making sure that the record was accurate before the earlier promotion board had met. (pp. 6-7)

Muller sued the Navy. He argued that the Privacy Act required the Navy to substitute the revised fitness report. The court did not buy it: “It is well-established that, ‘generally speaking, the Privacy Act allows for correction of facts but not correction of opinions or judgments.’” (p. 10; citations omitted)

The court was equally unsympathetic with the argument that the Navy’s refusal to delete the earlier report was arbitrary: “…there is nothing arbitrary about retaining both reports and permitting future promotion boards to give each report the credit they believe it deserves. Mueller may be right that future promotion board members ‘would likely surmise from their own experience that the change was at [the subject officer’s] request,’…but here such a surmise would be correct….But this court lacks the expertise, not to mention the authority, to substitute its own judgment about the validity of such a construction for that of …a future promotion board member.” (pp. 13-14)

Finally, the court did not agree with Mueller’s argument that the Secretary of the Navy acted arbitrarily in refusing to convene a special selection board. The court pointed out that Navy regulations state that a special board will not be convened to consider an officer “who, through the exercise of reasonable diligence, might have discovered and corrected the error or omission in the official record prior to convening the promotion selection board that considered, but did not select the officer.” (p. 15) The court saw no basis to disagree with the Navy’s decision that such was the case here.

In short, the Navy got this case thrown out on summary judgment.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.