Pinto v. United States

In the United States Court of Federal Claims

No. 19-1791 C

Filed: May 31, 2022

)

LUIS PINTO, )

)

Plaintiff, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

Luis Pinto, Williamston, NC, pro se, Plaintiff.

Joseph A. Pixley, Trial Attorney, United States Department of Justice, Civil Division,

Commercial Litigation Branch, Washington, D.C., with whom were Jeffrey Bossert Clark,

Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Steven J.

Gillingham, Assistant Director, for the Defendant. Nicholas D. Morjal, Litigation Division,

United States Army Legal Services Agency, of counsel.

OPINION AND ORDER

MEYERS, Judge.

While serving as a Second Lieutenant in the Army, Luis Pinto engaged in fraternization

that led to a Board of Inquiry investigation, which substantiated certain misconduct but

recommended that the Army retain Pinto. Although the Army did not discharge Pinto for the

fraternization, this conduct led the Army to deny Pinto promotion to First Lieutenant twice. And

the failure to be promoted is a mandatory ground for separation from service. But Pinto argues

that the Army regulations prohibited his misconduct from being used against him in the

promotion process. Because no regulation prohibited the Army from considering Pinto’s

conduct in deciding whether to promote him, there was nothing improper about his discharge for

non-promotion. Therefore, the Court grants the Government’s Partial Motion to Dismiss and

Cross-Motion for Judgment on the Administrative Record and denies Pinto’s Motion for

Judgment on the Administrative Record.

I. Factual Background

In May 2012, Pinto was commissioned as a Second Lieutenant (“2LT”) in the United

States Army and began a seven-year active-duty service obligation. See ECF No. 15 ¶ 12; ECF

No. 21 at 3. In September 2013, the Army began investigating Pinto “for fraternization and for

having an improper relationship with a junior, female enlisted soldier in his unit.” ECF No. 21 at

2. On September 19, 2013, Pinto’s unit initiated a suspension of favorable personnel action (a

“flag”) on his personnel file due to the pending investigation. ECF No. 17-1 at AR 205. Among

other things, Pinto was ineligible for promotion while the flag remained in place. ECF No. 21 at

4.

The investigation substantiated much of the alleged misconduct. ECF No. 17-1 at AR

239-40. Consequently, the Army issued a General Officer Letter of Reprimand (“GOMOR”)

and Pinto’s superiors gave him an unfavorable Officer Evaluation Report (“OER”), which noted

Pinto’s “lack of judgment” and “strongly recommended” against his promotion. ECF No. 21 at

2. Based on his misconduct, Pinto was called before a Board of Inquiry (“BOI”) to “show

cause” for his retention in the military. ECF No. 17-1 at AR 324. The BOI concluded that the

allegations against Pinto were supported by a preponderance of the evidence, but recommended

the Army retain and transfer Pinto to another unit rather than discharge him for misconduct. Id.

at AR 322-23. After the adverse action against him ended with the BOI findings, the Army

removed the flag from Pinto’s file on March 11, 2014. Id. at AR 328-31.

Following the removal of the flag from his file, Pinto was again eligible for promotion.

Pinto’s commanders issued Form 78-Rs recommending that he not be promoted to First

Lieutenant (“1LT”) on April 21, 2014, and October 27, 2014. ECF No. 27 at 3. Pinto submitted

a response to his promotion denial, see ECF No. 17-1 at AR 337-39, and the promotion review

authority made the final determination to deny Pinto’s promotion on November 6, 2014. Id. at

AR 340. In December 2014, the Army involuntarily separated Pinto. ECF No. 21 at 2.

Pinto appealed to the Army Board for Correction of Military Records (“ABCMR”)

seeking reinstatement and a retroactive promotion as well as correction of his military service

records to reflect his allegedly wrongful promotion denial and separation. ECF No. 18 at 17;

ECF No. 17-1 at AR 143. The ABCMR denied his application in October 2019, finding that: (1)

there was insufficient evidence to warrant removing Pinto’s GOMOR and OER from his record

and (2) Pinto’s other requests for relief, including his request for a promotion, were “without

merit.” ECF No. 17-1 at AR 77-78, 91. Subsequently, Pinto filed suit in this Court and on

January 28, 2020 the Court remanded the case to the ABCMR to “issue a new decision that fully

addresses Mr. Pinto’s promotion and more fully develops the record.” ECF No. 6 at 1. On April

3, 2020, the ABCMR issued a new decision providing a more fulsome analysis and reiterating its

previous findings. ECF No. 13.

Before this Court, Pinto claims he is entitled to military pay and “collateral relief,

including placement in an appropriate duty status and correction of [his] military record.” ECF

No. 15 ¶ 1. Specifically, Pinto requests a retroactive promotion to 1LT, appointment in the

Army Reserves, back pay for the higher rank of 1LT, and correction of all related military

records. Id. ¶ 78. Pinto’s Motion for Judgment on the Administrative Record asserts that: (1)

the Army exceeded its authority when it denied his promotion to 1LT and discharged him, and

(2) the ABCMR’s latest decision to affirm these actions “was arbitrary, capricious, unsupported

by substantial evidence, and contrary to law.” ECF No. 18 at 6.

2

II. Jurisdiction

Establishing jurisdiction is a threshold matter. Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94-95 (1998). And “[i]f the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.” Rules of the United States Court of Federal

Claims (“RCFC”) 12(h)(3). The Tucker Act, 28 U.S.C. § 1491(a)(1), gives this Court authority

to adjudicate “any claim against the United States founded either upon the Constitution, or any

Act of Congress or any regulation of an executive department, or upon any express or implied

contract with the United States, or for liquidated or unliquidated damages in cases not sounding

in tort.” But the Tucker Act does not create a cause of action, so “there [must] be a separate

money-mandating statute the violation of which supports a claim for damages against the United

States.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997). In this context, a

money-mandating statute is one that is “reasonably amenable to the reading that it mandates a

right of recovery in damages.” Fisher v. United States, 402 F.3d 1167, 1173-74 (Fed. Cir. 2005)

(emphasis in original) (quoting United States v. White Mountain Apache Tribe, 537 U.S. 465,

472-73 (2003)).

The Military Pay Act, 37 U.S.C. § 204, “serves as the money-mandating statute

applicable to military personnel claiming damages and ancillary relief for wrongful discharge.”

Holley, 124 F.3d at 1465. This is because “[i]f the discharge was wrongful the statutory right to

pay continues; this right serves as the basis for Tucker Act jurisdiction.” Id. The Military Pay

Act entitles active-duty members of a uniform service “to the basic pay of the pay grade to which

assigned or distributed, in accordance with their years of service . . . .” 37 U.S.C. § 204(a)(1).

“In general, the subject of military promotions is beyond the competence of courts to review.

However, the Military Pay Act . . . provides for suit in the Court of Federal Claims when the

military, in violation of the Constitution, a statute, or a regulation, has denied military pay.”

Dysart v. United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004) (citations omitted). Thus, “redress

may be afforded for a promotion improperly denied.” Id. Military promotion claims are money-

mandating “when (1) a service member met the legal requirements for promotion (had a ‘clear-

cut legal entitlement’), but the service failed to recognize it; or (2) non-promotion led to the

service member’s involuntary discharge.” Pedden v. United States, 145 Fed. Cl. 785, 795 (2019)

(citing Smith v. Sec’y of Army, 384 F.3d 1288, 1294-95 (Fed. Cir. 2004)).

When there is a “clear cut legal entitlement to a position” the Court examines “whether

the officer by delegation is exercising Presidential discretion in declining to grant the

appointment or whether the official is improperly construing the Constitution, a statute, or

regulation directing appointments (in which case the action is reviewable).” Lewis v. United

States, 458 F.3d 1372, 1377-78 (Fed. Cir. 2006) (citation omitted). Furthermore, when a service

member is involuntarily discharged due to an unlawful non-promotion, “the Military Pay Act

would give the service member a right to back pay, because the Act confers on an officer the

right to pay of the rank he was appointed to up until he is properly separated from the service.”

Smith, 384 F.3d at 1295 (citations and internal quotation marks omitted).

Here, Pinto’s second non-promotion led to his involuntary discharge. His monetary

claims are thus within this Court’s jurisdiction. Further, because the equitable relief Pinto seeks

is collateral to the action for monetary relief, the Court has the authority to grant such equitable

relief if the Court were to grant him a monetary judgment. See Roth v. United States, 378 F.3d

3

1371, 1384 (Fed. Cir. 2004) (providing that in actions for monetary relief “although the Court of

Federal Claims does not possess general equity jurisdiction” it may “issue orders directing

restoration to office or position, placement in appropriate duty or retirement status, and

correction of applicable records” in order “[t]o provide an entire remedy and to complete the

relief afforded by the judgment . . .”) (alteration in original) (quoting 28 U.S.C. § 1491(a)(2)).

III. Standard of Review

A. Motion to Dismiss

When evaluating a motion to dismiss, the Court assumes the veracity of the complaint’s

well-pleaded factual allegations, drawing all reasonable inferences “that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009). The Court must then

“determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007)). Under RCFC 12(b)(6), the Court must dismiss a complaint

“when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United

States, 295 F.3d 1252, 1257 (Fed. Cir. 2002).

B. Motion for Judgment on the Administrative Record

A motion for judgment on the administrative record provides an expedited “trial on a

paper record, allowing fact-finding” by the Court. Bannum, Inc. v. United States, 404 F.3d 1346,

1356 (Fed. Cir. 2005). Unlike a motion for summary judgment, the Court may grant a motion

for judgment on the administrative record even if there is a genuine dispute of material fact.

See id. at 1355-56. In lieu of an evidentiary trial, the Court references the administrative record

to resolve any question of fact. See id. at 1356.

For military pay cases, the Court is generally limited to reviewing the administrative

record. Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). The Court will not disturb a

military correction board’s determination unless the plaintiff proves by “cogent and clearly

convincing evidence,” that the determination “was arbitrary, capricious, contrary to law, or

unsupported by substantial evidence.” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986)

(citations omitted); see also Metz, 466 F.3d at 998 (providing that this is the “ordinary standard

of review” for this Court when evaluating a military correction board’s decision). This standard

“does not require a reweighing of the evidence, but a determination whether the conclusion being

reviewed is supported by substantial evidence.” Heisig v. United States, 719 F.2d 1153, 1157

(Fed. Cir. 1983) (emphasis in original). After all, it is well established “that courts cannot

substitute their judgment for that of the military departments when reasonable minds could reach

differing conclusions on the same evidence.” Id. at 1156. Consequently, “military

administrators are presumed to act lawfully and in good faith like other public officers, and the

military is entitled to substantial deference in the governance of its affairs.” Dodson v. U.S.

Gov’t, Dep’t of Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993) (citation omitted).

4

IV. Discussion

A. The Army’s decision to deny Pinto’s promotion is nonjusticiable.

The Government moves to dismiss Pinto’s claims on justiciability grounds. Justiciability

is distinct from jurisdiction and deals with “whether the duty asserted can be judicially identified

and its breach judicially determined, and whether protection for the right asserted can be

judicially molded.” Murphy v. United States, 993 F.2d 871, 872 (Fed. Cir. 1993) (quoting Baker

v. Carr, 369 U.S. 186, 198 (1962)). In other words, for Pinto to succeed, he must show that the

Court has jurisdiction over his claims and that they present justiciable issues. See id. (“The issue

must also be justiciable; it must be within the competency of the court.”). “Justiciability is a

particularly apt inquiry when one seeks review of military activities.” See id. Thus, the Court

will examine the Government’s contentions that Pinto’s claims are nonjusticiable seriatim.

First, the Government argues that the Army’s decision to deny Pinto’s promotion is

nonjusticiable. ECF No. 21 at 18-20. The Court agrees. Under Federal Circuit precedent, the

merits of military promotion decisions simply are not justiciable. See Dysart, 369 F.3d at 1317

(holding that the President cannot be compelled to appoint a military officer because the

President’s appointment power is discretionary); Voge v. United States, 844 F.2d 776, 779-80

(Fed. Cir. 1988) (holding that the military’s exercise of discretion is nonjusticiable, even if the

Court has Tucker Act jurisdiction). Indeed, it is well established that “the court is not in the

promotion business when selection for promotion is discretionary. We cannot interfere in the

business of the military unless there is a violation of statute or regulation or abuse of discretion

amounting to legal error.” Curry v. United States, 609 F.2d 980, 983 (Ct. Cl. 1979) (citations

omitted). And the Court finds no such error here.

Second, the Government argues that the merits of Pinto’s claims for a retroactive

promotion and back pay are nonjusticiable. The ABCMR found Pinto’s request for

reinstatement and retroactive promotion “outside the scope of the ABCMR’s authority to

effectuate” because “[t]he ABCMR does not have the authority to correct records to show an

officer has been appointed to a certain grade when that officer has not been appointed to that

grade by the President . . . .” ECF No. 13 at 17. Pinto contends that this finding “is of recent

vintage and unsupported by law.” ECF No. 18 at 28-29. But as the Government argues, “[t]his

Court lacks authority to order Pinto’s retroactive promotion . . . and may not make any award of

money damages premised upon such a promotion . . . .” ECF No. 21 at 20. As the Federal

Circuit explained, “strong policy reasons compel courts to allow the widest possible latitude to

the armed services in their administration of personnel matters. Accordingly, absent a statute or

regulation entitling a service member to a promotion as a matter of law, the [Court of Federal

Claims] has no authority to entertain” such claims. Voge, 844 F.2d at 782 (citing Ewanus v.

United States, 225 Ct. Cl. 598 (1980) and Curry, 609 F.2d at 983) (other citations and internal

quotation marks omitted); Fluellen v. United States, 225 F.3d 1298, 1304 (Fed. Cir. 2000). But

there is no statute or regulation providing an entitlement to promotion here. Accordingly, Pinto’s

claims for back pay are also nonjusticiable. See Dysart, 369 F.3d at 1317 (“Because he was

never appointed, the appellant is not entitled to the pay and benefits he would have received if he

had been promoted to that grade.”).

5

Lastly, the Government argues that the merits of the Army’s decision to separate Pinto

from military service is nonjusticiable. See ECF No. 21 at 20-21. The ABCMR affirmed Pinto’s

discharge because it found that “contrary to [Pinto’s] contention that he was wrongfully

discharged for misconduct/substandard performance under [Army Regulation (“AR”)] 600-8-24,

chapter 4, [he] was separated from service based on non-selection for promotion to O-2/1LT.”

ECF No. 13 at 17. According to Pinto, he could not have been discharged for misconduct under

chapter 4 because his misconduct (i.e., the fraternization described in his GOMOR) had already

been the subject of a BOI proceeding that resulted in a recommendation that the Army retain

him. But the ABCMR found that because Pinto was separated for non-selection for promotion

rather than his misconduct, the Army was free to consider “the underlying derogatory

information” from the BOI proceeding during the promotion process. Id. Therefore, the

ABCMR found that Pinto had “not demonstrated by a preponderance of the evidence that he was

improperly or wrongfully discharged from service.” Id.

This Court has no authority to determine a person’s fitness to serve in the military

because the “responsibility for determining who is fit or unfit to serve in the armed services is

not a judicial province.” Heisig, 719 F.2d at 1156. There is nothing in the promotion regulation

that prohibited the Army from considering the substantiated misconduct that remains in Pinto’s

record. See ECF No. 21-2 at 12 (AR 600-8-29 ¶ 1-13(b)). Consequently, the Court will not

review the Army’s choice to use one regulatory provision over another to remove Pinto from

service absent a procedural error.

Pinto counters that his claims are justiciable and that the Dysart and Voge cases upon

which the Government relies are distinguishable from this case. Dysart, Pinto argues, is

distinguishable because it dealt with the promotion of a senior officer (in the Constitutional

sense—i.e., one that required Senate confirmation) rather than an inferior one like him. ECF No.

24 at 5-7. While it’s true that the officer in Dysart was an admiral in the Navy and the adverse

action was taken against him directly by the President rather than a subordinate official, none of

these alleged distinctions distinguish this case from Dysart. The key question is whether the

promotion was discretionary, not the rank of the officer denied promotion. The promotions here

and in Dysart involved the exercise of the President’s discretionary appointment power—a

power that cannot be disrupted by the courts. See Dysart, 369 F.3d at 1317.

Pinto also contends that the Government incorrectly cited Voge for the absolutist position

that the courts cannot even “examin[e] issues within the judiciary’s special field of competence

(such as clear regulatory and statutory procedural standards).” ECF No. 24 at 6-7. However, the

Government specifically cites Voge for the proposition that the Court cannot entertain promotion

claims “absent the violation of a statute or regulation.” ECF No. 21 at 19. And this is precisely

what Voge held. Voge, 844 F.2d at 782 (“[A]bsent a statute or regulation entitling a service

member to a promotion as a matter of law, the Claims Court has no authority to entertain this

claim [for retroactive promotion].”). Therefore, the Court finds these cases are not

distinguishable from the present case.

6

B. The Court finds no procedural error.

Although the merits of the Army’s non-promotion decisions are nonjusticiable,

allegations of procedural deficiencies remain justiciable, and consequently, reviewable by the

Court. Dysart, 369 F.3d at 1315; Barnes v. United States, 473 F.3d 1356, 1361 (Fed. Cir. 2007)

(“[A] challenge to the particular procedure followed in rendering a military decision may present

a justiciable controversy.”) (quoting Adkins v. United States, 68 F.3d 1317, 1323 (Fed. Cir.

1995)); Lindsay, 295 F.3d at 1257 (“A claim of procedural violations may present a justiciable

controversy because the test or standards against which this court measures the military’s action

are inherent: they are the applicable statutes and regulations.”) (citation and internal quotation

marks omitted); Voge, 844 F.2d at 780. Therefore, for Pinto’s Complaint to survive the

Government’s motion, he must establish a procedural deficiency and a “nexus between the error

or injustice and the subsequent decision not to promote [him] or separate him . . . .” See Lindsay,

295 F.3d at 1259 (citation omitted). Accordingly, the Court examines each of Pinto’s procedural

claims in turn.

1. The delay in issuing the recommendation not to promote.

Pinto argues that his non-promotion was untimely because his promotion was denied

after his promotion eligibility date (“PED”) had already passed, in violation of AR 600-8-29 ¶ 3-

5b’s requirement to process the promotion denial documentation—DA Form 78— “not later than

the PED.” ECF No. 18 at 20-21. He asserts that under AR 600-8-2 his promotion to 1LT

happened automatically because it was not affirmatively stopped and his PED, which he claims

was November 26, 2013, had passed. ECF No. 24 at 10-11. He admits that 10 U.S.C. § 624

justified the delay in his promotion while the adverse action against him was pending but insists

that once his flag was removed on March 11, 2014, he was automatically promoted. Id.

But the promotion to 1LT is not automatic. Although AR 600-8-2 ¶ 2-2j(2) uses the

word “automatic” in reference to putting a flag on the promotion to 1LT, AR 600-8-29, which

governs the actual promotion, makes clear that the promotion to 1LT is not automatic. AR 600-

8-2 ¶ 2-2(j)(2) states that the promotion approval authority (i.e., a lieutenant colonel or higher)

“must Flag the officer” when “elect[ing] to deny an officer automatic promotion to . . . 1LT[] in

accordance with AR 600-8-29.” ECF No. 24-1 at 10 (emphasis added). But the regulations also

make clear that Lt. Colonels and above “are authorized to promote officers to the grade[] of

1LT.” ECF No. 21-2 at 10 (AR 600-8-29 ¶ 1-7). If the promotion to 1LT is automatic, it would

be nonsensical for the regulations to grant senior officers the authority to approve or deny such a

promotion. Indeed, AR 600-8-29 ¶ 1-13b outlines the procedures for “[o]fficer[s] found not

qualified for promotion to 1LT.” This indicates that officers may be deemed unqualified for

promotion to 1LT and their promotions can be denied accordingly. Id. Thus promotion to 1LT

is not automatic.

Here the Court compares these promotion regulations to ones that are automatic. In the

Army, junior enlisted soldiers below the rank of Specialist are promoted automatically upon

reaching time requirements. For these soldiers, AR 600-8-19 provides that junior enlisted

soldiers are promoted “to the ranks of private enlisted two (PV2), private first class (PFC), and

[Specialist] upon attainment of the required time in service . . . and time in

grade . . . requirements.” AR 600-8-19 ¶ 1-9(c)(1). But Army regulations provide no such

7

automatic promotion of 2LTs to 1LTs. Instead, the regulations grant authority to senior officers

to approve the promotion to 1LT. When Pinto’s flag was removed in March 2014, he merely

became eligible for promotion—he was not automatically promoted.

While it is true that there was a relatively short delay between the date on which Pinto

became eligible for promotion on March 11, 2014 and the issuance of the first Form 78-R on

April 21, 2014, see ECF No. 17-1 at AR 332, such delay was harmless. As explained above,

because the promotion was not automatic but a discretionary act, the delay in being denied

promotion did not prejudice Pinto. And AR 600-8-29 ¶ 3-5b does not outline any consequences

for failure to process an officer’s Form 78 before the PED. See ECF No. 27 at 10. Where the

relevant statute “spell[ed] out no consequences for delaying an appointment beyond the time

limit indicated,” House v. United States, 99 Fed. Cl. 342, 354 (2011), the Government’s failure

to meet the deadline “does not result in ‘automatic promotion’ by ‘operation of law.’” ECF No.

27 at 10 (citing House, 99 Fed. Cl. at 354-55). And Pinto was given an opportunity to respond to

the Form 78-R under the requisite procedures in processing his non-promotion. Therefore, the

delay in processing his Form 78-R was harmless and does not result in an automatic promotion.

2. Pinto’s separation under AR 600-8-24 ¶ 5-11 rather than ¶ 4-2a

Next, Pinto argues that the Army unlawfully denied his promotion “in order to discharge

him from the military when that discharge was explicitly disallowed by regulation.” ECF No. 18

at 6. Specifically, he claims that his discharge should have been governed by AR 600-8-29 ¶ 1-

13b(3), which provides that 2LTs deemed unqualified for promotion “who have not been

promoted at the end of [a] six month retention period will be processed for separation under the

provisions of AR 600-8-24, paragraph 4-2a(2).” Importantly, AR 600-8-24 ¶ 4-2a(2) provides

reasons for discharge based on misconduct and is subject to a limitation which provides: “[N]o

officer will be considered for elimination for reasons stated in paragraph 4-2 because of conduct

that has been the subject of administrative elimination proceedings that resulted in final

determination that the officer should be retained in the Service.” AR 600-8-24 ¶ 4-4b. Because

the non-promotion that led to Pinto’s discharge was based on the same underlying misconduct as

the concluded BOI investigation, he argues his separation was disallowed by ¶ 4-4b. ECF No.

18 at 22-23.

The Government contends that the Army was not required to discharge Pinto under ¶ 4-

2a(2); in fact, he was discharged under AR 600-8-24 ¶ 5-11, which outlines “[r]ules for

separation of an officer due to nonselection of a field promotion.” ECF No. 21 at 21-22. The

Government argues that it did not have to follow ¶ 1-13b(3) and discharge Pinto under ¶ 4-2a(2)

as he suggests because it instead used the waiver provision in AR 600-8-29 ¶ 1-13b(1). This

provision allows the promotion review authority to waive the six-month retention requirement

“and direct immediate processing for separation under the provisions of AR 600-8-24 if the

promotion review authority determines that the officer’s retention is inconsistent with good order

and discipline.” ECF No. 32 at 5-7. Thus, because Pinto was separated due to non-selection for

promotion under ¶ 5-11 and not for misconduct under ¶ 4-2a(2), the ¶ 4-4b limitation did not

shield him from separation.

The ABCMR found that Pinto was not discharged for misconduct under AR 600-8-24,

chapter 4 but instead “was separated from service based on non-selection for promotion to O-

8

2/1LT.” ECF No. 13 at 17. This is amply supported by the record. Pinto’s certificate of

discharge (DD-214) lists the reason for separation as “non-selection, permanent promotion.”

ECF No. 17-1 at AR 135. 1 And the ABCMR found that “[r]etention by a BOI does not insulate

an officer from consideration of the underlying derogatory information . . . during the promotion

process.” ECF No. 13 at 17. The ABCMR is correct here as well. There is nothing in the

promotion regulation that prohibits the Army from considering any information about Pinto

found in his record in deciding whether to promote him. Thus, the ABCMR determined that “the

greater weight of the evidence did not reflect an error or injustice in the promotion consideration

process and that [Department of Defense] policy and Army regulations regarding consideration

of officers for promotion to O-2/1LT were complied with.” Id.

Pinto argues that it was a procedural error for the Government not to follow ¶ 1-13b(3)

because his first promotion denial occurred in April 2014 and his second promotion denial was

not processed until October 2014, meaning he lasted the entire six-month abeyance period

described in ¶ 1-13b(3). ECF No. 24 at 16-17; see ECF No. 17-1 at AR 332, 340. But the

regulation allowed the Government to forego the six months entirely because the promotion

review authority 2 determined that his “further service is not in the best interests of good order

and discipline in this command.” ECF No. 17-1 at AR 341. This finding allowed the Army to

discharge Pinto immediately under AR 600-8-29 ¶ 1-13(b)(1), which provides: “[t]he promotion

review authority . . . may waive this requirement [to hold the discharge in abeyance for six

months] and direct immediate processing for separation under the provisions of AR 600-8-24 if

the promotion review authority determines that the officer’s retention is inconsistent with good

order and discipline.” Although Pinto’s second promotion denial did not come until the end of

the six-month abeyance period, the waiver provision in ¶ 1-13b(1) does not include a time limit.

Thus, at any time, if an officer’s retention is found to be “inconsistent with good order and

discipline,” the promotion review authority has discretion to order the officer’s discharge under

the provisions of AR 600-8-24 more broadly and is not restricted to using ¶ 4-2a(2). As the

ABCMR found, it was wholly appropriate for the Army to discharge him under ¶ 5-11, which

provides for the separation of officers denied promotion to 1LT. See ECF No. 13 at 18.

Pinto also contends that ¶ 5-11 is not a discharge authority and therefore discharge under

¶ 5-11 could not have been proper. He asserts that although ¶ 5-11 “contain[s] rules for

separating 2LTs not selected for promotion, it is not the authority for that action, as indicated in

AR 600-8-29 ¶ 1-13b(3),” which dictates discharge under ¶ 4-2a(2). ECF No. 18 at 23. But, as

discussed, the Court finds that ¶ 1-13b(3)’s requirement to use ¶ 4-2a(2) as the discharge

authority only applies when the promotion review authority does not utilize the waiver provision

of ¶ 1-13b(1). In using the waiver provision, the Army was free to process Pinto’s discharge

under any appropriate provision of AR 600-8-24, including ¶ 5-11.

1

Pinto’s original DD-214 listed the Army’s separation authority as “AR 600-8-24, para 5-9,”

which applies to promotions above 1LT. The ABCMR determined that the DD-214 should be

corrected to reflect the discharge authority as “AR 600-8-24, para 5-11,” which applies to the

1LT promotion. ECF No. 13 at 18.

2

The “promotion review authority” is “the first officer in the officer’s chain of command with

general court-martial convening authority.” AR 600-8-29 ¶ 1-13(b)(1).

9

Even if the Army had erred in choosing to separate Pinto under ¶ 5-11 rather than ¶ 4-

2a(2), it would have been harmless error because Pinto would have been mandatorily discharged

anyway under 10 U.S.C. § 630(2), which requires any 2LT who has been found not qualified for

promotion to be discharged “at the end of the 18-month period beginning on the date on which

the officer is first found not qualified for promotion.” Similarly, ¶ 5-11 provides that “officer[s]

not recommended for promotion to the grade of 1LT . . . will be separated not later than 90

calendar days after the Promotion Review Authority approves the nonrecommndation [sic] for

promotion.” Thus, there was no scenario in which Pinto would not have been involuntarily

separated based on his non-promotion. Pinto’s argument fails to comply with § 630 because he

would prohibit the Army from discharging him even though it denied him promotion.

3. Separation Program Designator Code error.

Next, Pinto argues that a discharge under ¶ 5-11 could not have complied with AR 635-8

¶ 5-6z, which requires that the DD Form 214 filled out for each officer upon discharge include

“the corresponding [Separation Program Designator (“SPD”) Code] for the regulatory authority

and reason for separation.” ECF No. 18 at 23-24. The list of SPD codes is found in AR 635-5-1.

Pinto asserts that ¶ 5-11 cannot be an appropriate discharge authority because it has no

corresponding SPD code in AR 635-5-1. ECF No. 18 at 23-24. Indeed, the SPD code listed on

Pinto’s DD Form 214 is “JGB.” ECF No. 17-1 at AR 135. And at the time of Pinto’s discharge,

AR 635-5-1 listed the corresponding regulatory authority for code JGB as AR 600-8-24 ¶ 2-41 or

¶ 5-9 and the narrative reason for discharge was listed as “Non-Selection, Permanent

Promotion”; it did not reference ¶ 5-11. ECF No. 21-3 at 3.

The Government acknowledges that code JGB did not specifically mention ¶ 5-11 at the

time of Pinto’s separation but contends that such a minor procedural irregularity cannot

invalidate ¶ 5-11 as a separation regulation. ECF No. 21 at 26. The Government asserts that

“[t]he regulatory authorities for separation exist independently, and inform the separation codes,

not vice versa.” Id. The Court agrees. Indeed, AR 635-8 ¶ 5-6z makes clear that SPD codes

“are intended for [Department of Defense] internal use in collecting data to analyze statistical

reporting trends that may influence changes in separation policy.” The Court will not presume to

invalidate the Army’s authority to discharge Pinto under ¶ 5-11 based on an irregularity in the

list of discharge codes created for the Army’s internal recordkeeping purposes. 3 Furthermore,

code JGB’s narrative reason “Non-Selection, Permanent Promotion” is consistent with Pinto’s

separation under ¶ 5-11. ECF No. 21 at 26. The Army had discretion to discharge Pinto under

¶ 5-11 and a minor irregularity in the list of designator codes does not invalidate ¶ 5-11 as a

separation authority. Therefore, the Court finds no procedural error requiring reconsideration of

the Army’s and ABCMR’s decisions.

3

Notably, the Army has since amended AR 635-5-1 so that the applicable regulatory authority

listed for SPD Code JGB is simply “AR 600-8-24” without reference to specific paragraphs. The

narrative reason for discharge is still listed as “Non-selection, permanent promotion.” ECF No.

21-4 at 3.

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V. Conclusion

For the foregoing reasons, the Court hereby:

1. DENIES Pinto’s Motion for Judgment upon the Administrative Record, ECF No.

18; and

2. GRANTS the Government’s Partial Motion to Dismiss and Cross-Motion for

Judgment on the Administrative Record, ECF No. 21. The Clerk of the United

States Court of Federal Claims is directed to enter judgment in favor of the

Government.

IT IS SO ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge

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