Richard B. Reiter, a Lieutenant Colonel in the Air Force Reserves, was denied a promotion in 2016. The dispute arose from a discrepancy in his personnel file: Reiter received a copy of his Senior Rater's Recommendation Form listing him as the top candidate, but the Promotion Board only received a different version listing him as the second choice. Reiter argued this procedural error violated Air Force regulations and the Administrative Procedure Act (APA). He first petitioned the Air Force Board for Correction of Military Records (Correction Board), which denied his request. After a second attempt with additional evidence, the Correction Board ordered a Special Selection Board to convene, allowing Reiter to submit comments on his record, but the Board still denied his promotion. Reiter then sued the Secretary of the Air Force, claiming the agency's actions were arbitrary and capricious. The district court granted judgment for the Secretary, and Reiter appealed to the Sixth Circuit.
The Sixth Circuit applied the highly deferential 'arbitrary and capricious' standard of review under the APA to the Correction Board's decision. The court addressed three main arguments. First, regarding the validity of the record, the court noted that while Air Force regulations require a Senior Rater to provide a copy of the form to the officer, the regulations also place the burden on the officer to ensure their selection record is accurate. The court held that the Senior Rater's failure to provide a copy did not render the submitted form a nullity; the form submitted to the Promotion Board remained the valid record. Second, the court found the Correction Board's decision to use the submitted form was rational. The Board relied on the Senior Rater's confirmation that the submitted form was correct and the fact that it was the only form eligible for consideration. The court rejected Reiter's claim that the version he received should carry more weight, noting the Senior Rater expressed confusion over how he obtained that version. Third, the court ruled the Correction Board did not need to seek an additional advisory opinion. The Board had already sought opinions for each reconsideration request, and regulations place the burden of providing evidence on the applicant, not the Board. The court concluded that the Board's decision was supported by substantial evidence and that the procedural error was cured by the Special Selection Board's opportunity for Reiter to comment.
The decision affirms that military personnel records submitted by Senior Raters are valid even if procedural steps to notify the officer are missed, provided the officer had an opportunity to correct the record later. It reinforces the high burden on military personnel to prove errors in their records and limits judicial intervention in military promotion decisions to cases where the agency's reasoning is entirely implausible. The ruling leaves open the question of whether a different procedural remedy might be required if the officer is never given a chance to comment on the record used against them, though the court found the remedy here sufficient.
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