With downsizing over the last few years, rich retirement benefits, and
increasing competitiveness, sometimes it makes economic sense to retain
counsel to assist in a fitness report appeal.
This blog entry is looking specifically at Navy adverse fitness reports. The applicable regulation is BUPERSINST 1610.10C
The first step is to exercise your rights under the regulation to submit a statement. You typically have 10 days to provide the statement to the reporting senior. Anytime a Sailor receives an adverse evaluation, it just makes sense to provide a statement discussing any factual inaccuracies, mitigating circumstances, or omitted significant accomplishments. Legal counsel can be valuable in crafting appropriate language.
The second step is to discuss the fitness report with the reporting senior. Sometimes, the reporting senior can submit requests for administrative changes or supplementary material.
The BUPERSINST provides a couple of remedies for appealing fitness reports:
- Request mast;
- BCNR; or,
- Article 138 complaints.
Some seniors may discourage seeking counsel. Here is why they are wrong.
Lawyers have a professional understanding of how the Board for Correction
of Naval Records analyzes fitness report appeals. In fact, some of the
senior personnel and legal advisors at the BCNR are lawyers by profession.
The BCNR is an administrative board that is a creation of statute. 10 U.S.C. 1552. The boards were created to create a place for service members to resolve administrative disputes without suing.
The courts have stated, however, that military must follow their own regulations. The BCNR knows that they are subject to review under the Administrative Procedure Act - 5 U.S.C. 706. They know that the standard of review is arbitrary and capricious, abuse of discretion, or otherwise not in accordance with the law. They also know that the courts do not like getting involved in military personnel matters.
10 U.S.C. § 1552 authorizes the Secretary of a military department to “correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.” Id. § 1552(a)(1). In most cases, “such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department,” and “under procedures established by the Secretary concerned.” Id. § 1552(a)(1), (3). The Board for Correction of Naval Records (“the Board”) operates pursuant to this authority. See 32 C.F.R. § 723.1–.11. The Board’s function is “to consider applications properly before it for the purpose of determining the existence of error or injustice in the naval records of current and former members of the Navy and Marine Corps, to make recommendations to the Secretary or to take corrective action on the Secretary’s behalf when authorized.” Id. § 723.2.
A lawyer can help advise or draft an appeal that accounts for appellate court decisions. The BCNR often does a poor job explaining their decisions. Before the Court can review an agency’s decision, it must know what the agency decided, and why. See SEC v. Chenery Corp., 332 U.S. 194, 196–97 (1947); Dickson v. Sec’y of Def., 68 F.3d 1396, 1404–06 (D.C. Cir. 1995); Pub. Citizen, Inc. v. FAA, 988 F.2d
186, 197 (D.C. Cir. 1993). Thus, the APA’s arbitrary-and-capricious
standard “mandat[es] that
an agency . . . provide an explanation that will enable the court to evaluate the agency’s rationale
at the time of decision.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654 (1990).
This is true even under the unusually deferential standard accorded to military review boards.
See Dickson, 68 F.3d at 1404–06 (holding that an Army Board for Correction of Military Records'
decision was arbitrary and capricious because it “omitted the critical step [of] connecting the
facts to the conclusion”).
This firm has been involved in federal litigation challenging the Secretary of the Navy in fitness report cases. The key to fitness report appeals is often two-fold:
- Identifying and rebutting factual inaccuracies; and,
- Demonstrating that the BCNR or reporting senior misconstrued the law or were unjust in crafting the adverse fitness report.