# Pardo v. United States > United States Court of Claims · May 6, 1981 · 648 F.2d 1330 URL: https://www.frixlaw.com/law-library/cases/8597371 ## Case - **Full name:** LT. COL. JORGE M. PARDO v. United States - **Court:** United States Court of Claims - **Decided:** May 6, 1981 - **Citations:** 648 F.2d 1330; 227 Ct. Cl. 377; 1981 U.S. Ct. Cl. LEXIS 268 - **Precedential status:** Published - **Opinion:** Concurrence by Friedman - **Judges:** Friedman, Kunzig, Nichols - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8597371 ## Opinion text FRIEDMAN, Chief Judge, concurring: Although I agree with the result the majority reaches, I cannot agree that Adair is controlling. The question *383 whether we have jurisdiction over this claim under United States v. Testan, 424 U.S. 392 (1976), is a difficult one. Since I conclude that the plaintiff has not demonstrated that the Army Board for the Correction of Military Records acted arbitrarily or capriciously in refusing to remove the unfavorable OER from his file, I would pretermit the jurisdictional issue and hold for the defendant on the merits. The determination whether a medical officer is entitled to VIP is a three-step process. 37 U.S.C. § 313 (1976); Department of Defense Directive 1340.11 (September 12, 1974). The first step is to determine whether, by statute or regulation, a medical officer is barred from receiving VIP. Specifically, the medical officer must be (1) "below the pay grade of O-7;” (2) "not serving an initial active duty obligation of four years or less or . . . not serving the first four years of an initial active duty obligation of more than four years;” and (3) "not undergoing intern or initial residency training.” 37 U.S.C. § 313 (a)(1), (4), and (5). See also DOD Directive 1340.11.III.B and .C. It was at this step that the medical officers in Adair were found not entitled to VIP. Under regulations of the Secretary of HEW, the officers in the three categories there involved had a disqualifying active duty obligation under section 313(a)(4). Adair determined only that we are without jurisdiction to decide whether plaintiffs as a group were improperly classified as subject to a disqualifying active duty obligation. The second step is determining if an officer is "designated as being qualified in a critical specialty.” 37 U.S.C. § 313 (a)(2), DOD Directive 1340.11.III.A. A critical specialty is one "in which the supply of qualified personnel is, or is projected to be, inadequate to meet military service requirements as designed by the Secretary.” DOD Directive 1340.11.II.B. The third step involves evaluating the individual officers who have been determined to be "eligible for variable incentive pay.” DOD Directive 1340.11.III.E. Officers are then placed in one of the two following categories: *384 1. An officer qualified in a designated critical specialty whose professional qualifications or demonstrated performance, in relation to his Military Department’s need for such officers, indicates that a premium should be placed on his procurement or retention in the active service. 2. An officer qualified in a designated critical specialty whose professional qualifications or demonstrated performance indicates that no premium should be placed on his procurement or continued active service. Plaintiff was denied VIP at this third step. The Board that evaluated plaintiff and 489 other medical officers examined only persons qualified in a designated critical specialty. Its only task was to determine whether each officer through training and experience, has acquired sufficient professional knowledge and skill in a particular field of medicine such as would enable him to accomplish the professional tasks associated with the majority of the positions in that field of medicine which are appropriate to his grade. In its deliberations the board should not overlook the nominee’s potential as an Army officer, and in that respect should review his military, moral and ethical conduct. The weight to be given derogatory information must be determine [sic] by the collective judgment of the board. Letter of Instruction for the Army Selection Board Considering Medical Corps Officers for Variable Incentive Pay (undated). Of the 490 officers considered, only eight, including the plaintiff, were denied VIP. No reasons were given for the rejection of any of these officers. Adair involved the denial of VIP to a class of medical officers who, under the statute and regulations, were determined not entitled to VIP. The allegation by those officers that the denial of VIP was improper did not state a claim within our jurisdiction because even if the statute or regulations were invalid on their face or as applied, the plaintiffs still would not be entitled to VIP since the Secretary never had considered, let alone approved, any of the plaintiffs’ entitlement to VIP on an individual basis. In the present case, in contrast, Pardo contends that the Secretary abused his discretion in denying Pardo individu *385 ally — and not as a membei’ of a class of officers — VIP. I am not prepared to say that, in such a situation, we have no jurisdiction to consider the claim. For example, suppose that the VIP Board had informed Pardo that although the Board considered him otherwise fully qualified for and would have awarded him VIP, it was denying him VIP solely because of his Philippine ancestry. It is difficult to believe that in such circumstances we would not have jurisdiction to award Pardo the VIP that he would have received had it not been for the Board’s reliance upon this illegal factor. I concur in the court’s judgment, however, because I cannot conclude that the Corrections Board committed reversible error in refusing to remove the adverse OER from Pardo’s file. Pardo has not demonstrated that his low rating resulted from and was given in retaliation for his complaints about and disagreements and conflicts with his commanding officer and rater, Colonel Harris. Pardo’s earlier OER’s had contained substantial critical comments about him (although not about his surgical skills), and I am not convinced that Colonel Harris’ rating necessarily was attributable to anything other than his judgment regarding Pardo’s performance. Moreover, the indorsing officer on the unfavorable OER, General Deffer, was no less critical of Pardo’s performance. Since Pardo’s claim for VIP necessarily fails unless he can establish that the VIP Board improperly considered his unfavorable OER, and since he has not so established, I would dismiss the petition on the merits. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8597371. Public record. Not legal advice.