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Bienias v. Donley

United States District Court, N.D. Illinois, Eastern Division

September 30, 2014



THOMAS M. DURKIN, District Judge.

Lieutenant Colonel Ronald M. Bienias brings this action against the Secretary of the Air Force, Michael B. Donley (the "Secretary"), seeking judicial review of a decision by the Air Force Board for Correction of Military Records (the "Correction Board") to deny Bienias's request for reconsideration of his application for correction of his military records. R. 1. The Secretary originally filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). R. 9. The Court denied the Secretary's motion to dismiss but gave the Secretary leave to file a motion for summary judgment once the administrative record was filed with the Court. R. 23. The administrative record was filed on August 29, 2013, R. 27, and the Secretary moved for summary judgment on August 30, 2013. R. 28. For the following reasons, the Secretary's motion, R. 28, is granted, and Bienias's case is dismissed.


Bienias began serving with the United States Air Force Reserves (the "Air Force") in June 1968. R. 1 ¶ 12. In 1989, Bienias was promoted to the grade of Lieutenant Colonel. Id. ¶ 13. In 1993, Bienias was considered for promotion to Colonel, but the Colonel Overall Vacancy Selection Board (the "Selection Board") decided not to promote him. R. 27-2 at 14-15 (AR 013-14). The Selection Board again declined to promote Bienias in 1994 and 1995. Id. On January 31, 1995, Bienias was involuntarily placed in the Retired Reserve. Id. at 15 (AR 014).

In June 1996, Bienias asked the Correction Board to amend his Officer Selection Briefs-the records considered by the Selection Board in deciding whether to promote Bienias in 1993, 1994, and 1995-to correct numerous errors and omissions. Id. at 18 (AR 017). Bienias also requested that he be directly promoted to the grade of Colonel. Id. at 2 (AR 001).

Members of the Air Force may seek "correction" of their "records" by appeal to the Correction Board. See 32 C.F.R. § 865.0 ("This subpart sets up procedures for correction of military records to remedy error or injustice. It tells how to apply for correction of military records and how the Air Force Board for Correction of Military Records... considers applications."). "The applicant, " for correction of Air Force military records, "has the burden of providing sufficient evidence of material error or injustice." 32 C.F.R. § 865.4(a). The Correction Board determines "[w]hether the applicant has demonstrated the existence of a material error or injustice that can be remedied effectively through correction of the applicant's military record and, if so, what corrections are needed to provide full and effective relief." 32 C.F.R. § 865.4(h)(4). Additionally, "[t]he [Correction] Board may reconsider an application if the applicant submits newly discovered relevant evidence that was not reasonably available when the application was previously considered." 32 C.F.R. § 865.6(a). "If the request contains new evidence, ... [it will be] refer[ed] to a panel of the [Correction] Board for a decision. The [Correction] Board will decide the relevance and weight of any new evidence...." 32 C.F.R. § 865.6(b).

In December 1996, in response to Bienias's request, the Correction Board admitted that there were numerous errors within Bienias's records and decided that Bienias's amended records should be considered by a Special Review Board with respect to the promotion denials. R. 27-2 at 12-17 (AR 011-16). The Correction Board instructed the Special Review Board to evaluate Bienias's records and determine whether the Selection Board would have recommended Bienias for a promotion if the Selection Board had considered Bienias's amended and corrected Officer Selection Briefs. Id. The Special Review Board ultimately decided that the amended and corrected Officer Selection Briefs did not merit promoting Bienias. Id. at 32 (AR 031), 2 (AR 001).

In March of 1998, Bienias petitioned the Correction Board to reconsider the Special Review Board's decision, arguing that it did not comply with the regulations. R. 27-2 at 33-63; R. 27-3 at 1-54 (AR 032-117). On October 22, 1999, the Correction Board issued a First Addendum to Record of Proceedings, denying Bienias's application for reconsideration, and finding that Bienias did not present evidence that "demonstrated the existence of probable material error or injustice." R. 27-2 at 6-11 (AR 005-10).

In October 2005, Bienias contacted the Correction Board regarding new evidence he believed supported reconsideration of the SRB's decision not to promote him. R. 27-6 at 28-36 (AR 283-91). Bienias submitted the following evidence to the Correction Board: (1) statements from senior officers who believed that Beinias should have been promoted, R. 27-6 at 37-41 (AR 292-96); and (2) the personnel file of Colonel Robert F. Raub, see id. at 34 (AR 289); see also R. 1-1 at 3-24. Bienias argued that the statements he provided were from officers with "vast promotion board experience, " and who were "personally familiar with [Bienias's] career accomplishments." R. 27-6 at 30 (AR 285). Bienias stated that he submitted Colonel Raub's record to show that his qualifications were equal to or better than Colonel Raub's. Id. at 34-35 (AR 289-90). Besides the new evidence he submitted, Bienias also argued that his request for reconsideration should not be negatively affected by the 21 months during which he was inactive because he had continually searched for a new position in the Air Force during that time period. Id. at 31-32 (AR 286-87).

By letter dated February 17, 2006, the Correction Board denied Bienias's request for reconsideration. R. 27-6 at 46 (AR 301). In explaining the denial, the Correction Board stated that it grants reconsideration only "where newly discovered relevant evidence is presented which was not reasonably available when the application was submitted." Id. The Correction Board continued that "reiteration of facts previously addressed by the Board, uncorroborated personal observations, or additional arguments on the evidence of record are not adequate grounds for reopening a case." Id. "Accordingly, the [Correction] Board denied [Beinias's] request for reconsideration of [his] case." Id.

Bienias requested reconsideration again on June 20, 2006, arguing that the Correction Board rejected his previous request for reconsideration "without consideration." Id. at 47-49 (AR 302-04). Bienias contended that there were "exceptional circumstances" in this case that warranted direct promotion that the Correction Board failed to consider. Id. Bienias, however, did not specifically identify the "exceptional circumstances." Bienias also argued that Raub's personnel record should be considered new evidence as Raub attested that "he did not, and would not, share his personal information with [Bienias] while still on active duty." Id. at 48 (AR 303).

In response, on August 9, 2006, the Correction Board issued a Second Addendum to Record of Proceedings. R. 27-2 at 2-5 (AR 001-04). The Correction Board "considered" the evidence Bienias had submitted, id. at 5 (AR 004), and concluded that the letters provided were "essentially opinion and speculation, " which did not demonstrate that "the promotion boards would, or should, have promoted the applicant when he was originally considered." Id. at 4 (AR 003). The Correction Board determined that Beinias failed to submit evidence sufficient "to sustain his burden of [showing that he] suffered either an error or an injustice." Id. at 4-5 (AR 003-04). The Correction Board "found no compelling basis to recommend granting any relief beyond that already afforded [to Beinias]." Id. at 5 (AR 004). On August 7, 2012, Bienias filed his complaint in this Court seeking judicial review of the Correction Board's August 2006 decision pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq. R. 1.


The Secretary argues that Bienias's complaint should be dismissed because it is time barred. R. 29 at 4-6. In the alternative, the Secretary argues that the Court should grant summary judgment in his favor on Bienias's complaint because the Correction Board's denial of Bienias's request for reconsideration was not arbitrary or capricious. Id. at 6-11. The Secretary further argues that Bienias ...

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