United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2001 Decided April 16, 2002
No. 00-5347
James Musengo,
Appellant
v.
Thomas E. White, Secretary of the Army,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 99cv01884)
Charles W. Gittins argued the cause and filed the briefs for
appellant.
Diane M. Sullivan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: Sentelle, Randolph and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Plaintiff James Musengo chal-
lenges the Army's refusal to remove an Officer Evaluation
Report from his military record. The District Court granted
summary judgment against Musengo, concluding that the
Army Board for Correction of Military Records did not act
arbitrarily or capriciously in refusing to expunge the report.
We affirm.
I
Musengo is currently a major in the United States Army
Reserve. During the period at issue in this case, he was a
captain on active duty, instructing members of the Reserve
Officer Training Corps and teaching courses in military sci-
ence at the University of Akron. In July 1992, Musengo
received an Officer Evaluation Report (OER) assessing his
performance from June 24, 1991 to June 23, 1992. We have
recently described in detail the officer rating system em-
ployed by the Army at the time of Musengo's evaluation, see
Cone v. Caldera, 223 F.3d 789, 790-91 (D.C. Cir. 2000), and
we therefore sketch it only briefly here.1
An OER is used to evaluate an officer's performance and
career potential. See Army Regulation (AR) 623-105, at
p 1-6(a) (Apr. 30, 1992). At least two of the officer's superi-
ors prepare the OER. The first is a "rater," who directly
supervises the rated officer and is familiar with his or her
day-to-day performance. Id. p 3-4. The second is a "senior
rater"--here, Colonel Joseph M. Barrow--who is charged
with "evaluat[ing] the rated officer from a broad organization-
al perspective," including measuring the officer's potential for
__________
1 In 1998, the Army altered its regulations and OER form,
including the block rating system discussed in the text infra. See
Army Regulation 623-105 (Apr. 1, 1998). The citations in this
opinion refer to the regulations in effect at the time of Musengo's
disputed OER.
promotion relative to the larger group of officers under the
senior rater's command. Id. p 3-10(a).
The OER form contains blanks for both a numerical and a
narrative assessment of the rated officer. In Part VII(a), the
senior rater is to check one of a column of nine blocks that
compare "the rated officer's potential with all other officers of
the same grade." Id. p 4-16(b).2 The rater's evaluation is to
be based on the premise that in a representative sample of
officers Army-wide, the distribution of ratings "will approxi-
mate a bell-shaped normal distribution pattern." Id.3 Ac-
cording to the regulations, this means "that in a representa-
tive sample of 100 officers of the same grade or grade
grouping (Army-wide) only one officer can reasonably be
expected to be placed in the top block." Id. p 4-16(c). An-
other two are expected to fall in the second block, and so on.
See id. fig. 4-4. The center block, block five, is expected to
be the rating achieved by 60 officers out of a representative
100. Id.
Once the OER is completed, the Army compares the senior
rater's assessment of the individual officer to the senior
rater's rating history for all officers of the same grade--
known as the senior rater's "profile." Id. pp 2-5,
4-16(d)(5)(a). By comparing a specific officer's OER to his
senior rater's profile, the Army can discern whether that
__________
2 In Cone, the Army described the column as containing ten
blocks. Army Br. at 5, Cone. The Army now states that the
column contains nine blocks, Army Br. at 2 n.4, Musengo, and this
appears to be correct. What could be construed as two equally
weighted blocks in the center of the column is instead a single block
into which the Army expects 60% of the evaluations of a representa-
tive sample to fall. See AR 623-105, at fig. 4-4.
3 In a normal distribution, most of the data points are "clustered
near the mean, and the density or relative frequency of the num-
bers decreases with increasing distance from the mean." David W.
Barnes & John M. Conley, Statistical Evidence in Litigation 140
(1986). "If the frequencies with which the numbers in the normal
population appear as the result of random experiments are plotted
on a graph, the figure resembles a bell-shaped curve." Id.
officer performed above, at, or below the "center-of-mass"--
i.e., the median ranking--of all officers ranked by the same
senior rater. Moreover, by comparing the profiles of differ-
ent senior raters, the Army can determine whether one
rater's "rating tendency" is more lenient than that of another.
Id. p 4-16(d)(5)(a); see id. p 9-7(f).
On the OER that is in dispute in this case, Musengo's
senior rater, Colonel Barrow, gave Musengo a second-block
rating--corresponding to the top 2-3% of Army captains
according to the expected distribution pattern set out in the
regulations. Id. fig. 4-4. Within Barrow's personal profile
for the relevant time period, however, this placed Musengo
below the center-of-mass of the captains Barrow rated. Of 54
captain reports completed by Barrow during the period, 32
contained top-block ratings, 20 contained second-block rat-
ings, and 2 placed captains in the third block. See Joint
Appendix (J.A.) at 32.
Concerned that a below-center-of-mass rating would hurt
his chances of promotion, Musengo contacted Barrow, who
told Musengo that he had intended to rate Musengo at
center-of-mass, and that he had thought the second-block
rating was in fact his center-of-mass. Armed with this infor-
mation, Musengo appealed to the Officer Special Review
Board (OSRB), which has the power to correct substantive
inaccuracies in an OER. AR 623-105, at p 9-2(i). After the
OSRB denied Musengo's initial request to delete the senior
rater's numerical rating from his OER, Musengo obtained a
supporting letter from Barrow and resubmitted his request.
In the letter, Barrow stated: "It was my clear intent to give
CPT Musengo a strong center of mass evaluation on this
OER and also get him promoted." J.A. at 11. Musengo also
provided the OSRB with the transcript of a deposition in
which Barrow reiterated that "it was my desire that [Musen-
go] be placed in center of mass," and that "I believed that my
center of mass was a two block at that time." J.A. at 19.
The OSRB denied Musengo's second appeal. Thereafter,
Musengo filed three more appeals to the OSRB, all of which
were likewise unsuccessful.
Following the denial of his requests by the OSRB, Musen-
go appealed to the Army Board for Correction of Military
Records. The Correction Board is the "next agency in the
Army's redress system," AR 623-105, at p 9-5(f), and has the
power to direct changes in military records in order to correct
"material error or injustice," AR 15-185, at p 1-8(b).4 The
Board concluded that "the contested OER appears to repre-
sent a fair, objective and valid appraisal of [Musengo's]
demonstrated performance and potential, and represents the
considered opinion and objective judgment of the senior rater
at the time of preparation." ABCMR Decision at 4 (March
30, 1994), reproduced at J.A. 5, 8. Because it was "not
convinced that the senior rater was not aware that his center
of mass was within the top block at the time he rated the
applicant," the Board denied Musengo's appeal. Id.
Musengo then filed the instant action in the United States
District Court for the District of Columbia. He alleged that
the Correction Board's decision was arbitrary and capricious
in violation of the Administrative Procedure Act (APA), 5
U.S.C. s 706(2)(A), and sought removal of the disputed OER
from his military record. The district court granted sum-
mary judgment in favor of the Army, and this appeal fol-
lowed.
II
Under Army regulations, OERs are presumed to be "ad-
ministratively correct" and to "[r]epresent the considered
opinions and objective judgment of the rating officials at the
time of preparation." AR 623-105, at p 5-32(a). An appli-
cant petitioning the Correction Board to amend or delete a
report has the burden of "produc[ing] evidence that estab-
lishes clearly and convincingly" that the "presumption of
__________
4 The Correction Board operates within the Office of the Secre-
tary of the Army pursuant to 10 U.S.C. s 1552(a), which provides
that the secretary of a military department acting through a civilian
board "may correct any military record of the Secretary's depart-
ment when the Secretary considers it necessary to correct an error
or remove an injustice."
regularity" should not apply, and that "[a]ction is warranted
to correct a material error, inaccuracy, or injustice." Id.
p 9-7(a) (citing id. p 5-32); see also Frizelle v. Slater, 111
F.3d 172, 178 (D.C. Cir. 1997). Although this court has
jurisdiction to review decisions of the Correction Board,5 we
do so under an "unusually deferential application of the
'arbitrary or capricious' standard" of the APA. Kreis v.
Secretary of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir.
1989); see Cone, 223 F.3d at 793; Kidwell v. Department of
the Army, 56 F.3d 279, 286 (D.C. Cir. 1995). We review de
novo the district court's ruling, on cross-motions for summary
judgment, that the Correction Board did not act arbitrarily or
capriciously in this case. See Cone, 223 F.3d at 793.
Musengo offers three arguments in support of his conten-
tion that the Board acted unlawfully in denying his applica-
tion for correction. We consider these arguments below.
A
Musengo's first contention is that his rating should be
vacated because senior rater Barrow violated AR 623-105, at
p 4-16(b). That regulation states that a senior rater's evalua-
tion "is based on the premise that in a representative sample
of 100 officers of the same grade or grade grouping (Army-
wide), the relative potential of such a sample will approximate
a bell-shaped normal distribution pattern." Musengo con-
tends that because Barrow's evaluations did not approximate
a bell-shaped curve, the senior rater violated the governing
regulation and the Board acted arbitrarily in refusing to
delete the second-block rating from his OER.
We rejected the same argument in Cone. As we explained
in that case, although the regulations direct the senior rater
to base his or her ratings on the "premise" that evaluations of
an Army-wide representative sample will approximate a bell-
shaped curve, "they do not require adherence to a bell-shaped
__________
5 See Cone, 223 F.3d at 793; Frizelle, 111 F.3d at 176; Dickson v.
Secretary of Defense, 68 F.3d 1396, 1401 n.6 (D.C. Cir. 1995); Kreis
v. Secretary of the Air Force, 866 F.2d 1508, 1512 (D.C. Cir. 1989)
(citing Chappell v. Wallace, 462 U.S. 296 (1983)).
curve" for the evaluations of any individual rater's ratees in a
given rating period. Cone, 223 F.3d at 793. Moreover, even
if Barrow was lax in adhering to the regulation's premise, the
Army "anticipates, and compensates for, the fallibility of
individual raters by requiring that each rater's personal pro-
file ... be included in the OER of each officer he or she
reviews." Id. at 794. The profile permits reviewers "to place
the rated officer's OER in perspective by revealing the senior
rater's general rating tendency," AR 623-105, at
p 4-16(d)(5)(a), including his or her "tendency to inflate or
deflate ratings," id. p 9-7(f). Accordingly, as in Cone, it was
reasonable for the Correction Board to refuse to alter the
plaintiff's OER. See Cone, 223 F.3d at 794.6
B
Musengo's second contention is that the Correction Board's
refusal to vacate his rating was arbitrary and capricious in
light of Barrow's letter and deposition, which averred that
Barrow had made a mistake in issuing that rating: although
the senior rater had placed Musengo in the second block, he
stated that he had done so under the mistaken belief that the
second block was his center-of-mass. Musengo does not
dispute that under the regulations, OERs are presumed to
represent "the considered opinions and objective judgment of
the rating officials at the time of preparation," AR 623-105, at
p 5-32, and that he needed clear and convincing evidence to
overcome that presumption, id. p 9-7(a). But he contends
that Barrow's statements were sufficient to satisfy that regu-
latory standard.
__________
6 In support of his argument, Musengo cites an opinion of the
Court of Federal Claims, Richey v. United States, 44 Fed. Cl. 577
(1999), which remanded a Correction Board decision where a senior
rater's evaluations did not approximate a bell-shaped curve. We
are not certain whether Richey intended to announce a general rule
of law or merely to hold that the Board acted arbitrarily in light of
the specific facts of that case. However, even if Richey intended
the former, this court's decision in Cone necessarily controls the
disposition of the instant appeal.
There is, however, another regulation at issue here as well.
Paragraph 5-32(b)(2) of AR 623-105 provides that state-
ments from rating officials that they "did not intend to rate
[an officer] as they did" will "not be used to alter or with-
draw a report." The reason for this rule is that "statements
from rating officials often reflect retrospective thinking, or
second thoughts, prompted by an appellant's non-selection or
other unfavorable personnel action claimed to be the sole
result of the contested report." Id. app. N, at p N-2(b)(3).
As we explained in Cone, the rule is based on the "under-
standing that raters may attempt to retract otherwise accu-
rate assessments when requested to do so by their disap-
pointed officers." Cone, 223 F.3d at 794. This regulation
was a reasonable basis for the Correction Board's decision to
reject Barrow's statements as insufficient to overcome the
presumption of regularity. See id.7
In rebuttal, Musengo contends that there is an exception to
p 5-32(b)(2) that permits reliance on post hoc statements in
the case of "information which was unknown or unverified
when the report was prepared," and which "is so significant
that it would have resulted in a higher or lower evaluation
had it been known or verified when the report was prepared."
AR 623-105, at p 5-32(c)(1)-(2). But it is clear in context that
this regulation applies to new information concerning the
quality of a ratee's performance, rather than to a rater's
sudden recognition of his own profile.8 To read the exception
__________
7 Musengo alludes to the fact that Barrow apparently rated nine
captains twice over a one-year period, see J.A. at 32 (OER page
containing Barrow's profile), and suggests that this may explain
why Barrow did not realize that his center-of-mass had changed
from the second to the top block. But the inclusion of those nine
reports did not change Barrow's center-of-mass. It would still be
at the top block even if we assumed that all nine were for top-block
captains and removed them from his profile. See id.
8 See also AR 623-105 app. N, at p N-2(b)(3) ("[C]laims by rating
officials that they did not intend to evaluate as they did will not,
alone, serve as the basis of altering or withdrawing an evaluation
report. Rating officials may, however, provide statements of sup-
port contending the discovery of new information that would have
as encompassing the latter would permit it to swallow the
rule against accepting after-the-fact testimonials.
In addition to the OER's presumption of regularity, Bar-
row's contemporaneous rating history provides further evi-
dence that he was aware that the top block was his center-of-
mass at the time he placed Musengo in the second block. As
the Correction Board noted, the OSRB determined that for
the five months preceding Musengo's contested OER, Barrow
"had rendered 23 OER's ... with 17 top block ratings and
only six second block ratings; and that the senior rater did 12
OER's the week of the applicant's OER with eight top block,
three second block, and one third block checks." ABCMR
Decision at 3.9 This series of contemporaneous ratings,
heavily weighted toward the top block, is further reason to
discount Barrow's suggestion that he was unaware that the
top block was his center-of-mass.10
__________
resulted in an improved evaluation had it been known at the time of
report preparations.").
9 Still further evidence is the fact that Barrow "restarted" his
profile immediately prior to the rating period covered by Musengo's
OER. ABCMR Decision at 2. Army regulations permit a senior
rater to restart his profile to ensure that his intended evaluations
are properly conveyed to selection boards and personnel managers.
AR 623-105, at p 3-12.1. The Correction Board concluded that the
fact that Barrow had recently restarted his profile undermined his
contention that he "was not aware that his center of mass was
within the top block at the time he rated the applicant." ABCMR
Decision at 4.
10 Musengo contends that the Correction Board should not have
considered this data because the OSRB opinion in which it was
contained was not included in the certified administrative record
filed with the district court by the Army. That failure of certifica-
tion, however, is not fatal. Cf. 5 U.S.C. s 706 (stating that in
reviewing agency action "due account shall be taken of the rule of
prejudicial error"). The Correction Board decision makes clear
that the OSRB opinion was part of the "evidence of record" before
the Board, ABCMR Decision at 2-3, as would be expected since the
purpose of Musengo's appeal to the Board after his rejection by the
OSRB was to seek review by "the next agency in the Army's
C
Finally, Musengo contends that this case is distinguishable
from Cone because of the different kind of relief he seeks:
Cone asked for an amendment of his OER, while Musengo
seeks only its removal from his military record.11 We did
note in Cone that the "knowledge that 'correcting' Cone's
grades would ultimately require us to reassess the relative
rankings of his entire cohort ... confirms the wisdom of
deferring to the reasonable judgment of the Correction
Board." Cone, 223 F.3d at 795. The difference in requested
remedy, however, cannot justify a different conclusion as to
whether Musengo's rating violated Army regulations. Nor
does that difference truly sidestep the "quagmire" of serial
reassessments that we sought to avoid in Cone. Id.
Were we to vacate Musengo's second-block rating because
Barrow wrongly thought the second block was his center-of-
mass, would we not have to do the same for the twenty other
captains Barrow rated in that block, all of whom could make
similar complaints? And if we did that, what would become
of those officers Barrow placed in the top block? Whatever
Barrow thought was his center-of-mass, he clearly thought
that those he placed in the top block were superior to those
he placed in the second, including Musengo.12 Yet with the
__________
redress system," AR 623-105, at p 9-5(f). Army regulations gave
Musengo the right to obtain a copy of the OSRB decision, id., and
he conceded at oral argument that he did obtain one. Moreover, at
no time during the numerous proceedings before the OSRB, Cor-
rection Board, district court, or this court has Musengo contended
that the data contained in the OSRB opinion is inaccurate.
11 Before the Correction Board, Musengo sought removal only of
the senior rater's numerical ranking. See ABCMR Decision at 2.
In this court, Musengo seeks removal of the entire OER. See
Compl. at 8.
12 The OSRB found that: "[T]he SR [senior rater] intended to
give the appellant [a] ranking lower than those officers designated
as top block. The SR may have lost control of his profile, however,
the fact remains he rendered both top block and second block
reports clearly rank ordering the officers he rated." See Musengo
second-block officers' ratings expunged, the top-block group
would lose the advantage of the comparison. Moreover, were
we to begin this game of falling dominos for those officers
rated by Barrow, we would open the door to similar chal-
lenges from officers rated by every other rater whose profile
did not match the bell-shaped curve that Musengo insists is
required by the regulations. That, of course, is precisely the
quagmire we refused to enter in Cone.
III
The Army does not dispute that James Musengo rendered
meritorious service. But there is no warrant for concluding
that his rating in the second block of the OER--which placed
him among the top 2-3% of all captains Army-wide but not
among the top 1%--underrated his performance. As in Cone,
223 F.3d at 796, Musengo's underlying complaint is that he
failed to get the full benefit of the inflated grading curve
employed by his senior rater, whose ratees, like the children
of Lake Wobegon, were apparently all above average.13 As
that failure does not render the Army's refusal to expunge
Musengo's record arbitrary or capricious, the district court's
grant of summary judgment is
Affirmed.
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Br. at 9-10 (quoting OSRB). Neither Musengo's brief, nor Bar-
row's letter in support of Musengo, disputes that Barrow intended
to rank Musengo below the officers he placed in the top block. See
J.A. at 14.
13 See Garrison Keillor, Lake Wobegon U.S.A. (Minn. Pub. Radio
2000), quoted at http: //prairiehome.org/catalog/catalog_014.htm.