Major Adolph H. Knehans, Jr. v. Clifford L. Alexander, Secretary of the Army

SPOTTSWOOD W. ROBINSON, III, Circuit Judge,

dissenting:

I cannot accept the court’s conclusions that the selection boards’ consideration of appellant’s improperly-constituted personnel file was not harmful error and that the failure of the Army Board for Correction of Military Records to reinstate appellant was not arbitrary. For reasons to be expressed, I would reverse the District Court’s judgment and remand the case for a determination of whether the' evidence establishes a substantial probability of prejudice emanating from the selection boards’ proceedings. 1 That disposition of the case would incidentally eliminate, at least temporarily, the necessity of passing on appellant’s due process claims — a bonus we should be eager to realize. 2 Because, however, my colleagues have treated the due process contentions unsatisfactorily, I feel obliged to comment upon them briefly. 3

I

As stated in the majority opinion, appellant was honorably discharged from the United States Army pursuant to Section 3303, 4 which specifies that course for a commissioned officer who has not been recommended for promotion by either of two consecutive selection boards and who is not eligible for retirement. Although Section 3303 expressly conditions discharge on consideration for promotion by two selection boards functioning in direct succession, the statute applicable to Army selection board proceedings does not elaborate the elements of a candidate’s record that must or must not be evaluated. 5 By implementing regulations, however, the Army has ruled certain materials admissible 6 and certain others inadmissible in a selection board proceeding. 7

Appellee, the Secretary of the Army, admits, and the District Court assumed in reaching its decision, 8 that contrary to the regulations several letters commending appellant were omitted from the record reviewed by the selection boards, and that an officer efficiency report inadmissible under the regulations was considered by the *317 boards. Because under well-settled principles a governmental agency is legally bound to adhere to its own regulations, 9 the omission of the letters of commendation and the inclusion of the efficiency report rendered appellant’s file clearly defective.

Although my colleagues apparently concede this point, they opine that the validity of selection board proceedings does not depend upon review of a perfectly constituted personnel file. With this observation I fully agree. But the question here is not whether any imperfection in a candidate’s personnel file examined by a selection board fatally taints that proceeding. Rather, the issue is whether the mistake admittedly accompanying consideration of appellant’s file was sufficiently severe to merit remedial measures. If the Army’s blunder was in fact injurious to appellant, evaluation by the Army of the corrected file was mandatory, not simply an “act of administrative grace” as the court asserts. As will be developed, I believe the evidence suggests a grave likelihood of prejudicial error. 10

II

Admittedly, the District Court’s function was not to review directly the determinations of the two selection boards that evaluated appellant’s record, but to review the decision of the Army Board for Correction of Military Records (ABCMR) refusing to reinstate him. The ABCMR concluded that “insufficient evidence ha[d] been presented to indicate probable material error or injustice.” 11 The District Court held, and my colleagues now affirm without discussion, that the ABCMR’s decision was not arbitrary.

I believe, however, that the District Court was overly deferential in its review of the ABCMR’s decision. The court observed;

It is not so obvious that in the instant case the inclusion of the adverse OER and the absence of several letters of recommendation would necessarily lead to a non-promotion decision by a Selection Board. . . . [I]n the absence of evidence that inclusion of the negative OER necessarily caused the non-promotion decisions, this court cannot say that the ABCMR’s refusal to reverse those decisions was without a rational basis. 12

Certainly, if a defect in a candidate’s file “necessarily” would preclude his promotion, the defect would be harmful, and the ABCMR’s failure to remedy it clearly would be reversible. 13 But even short of this, the ABCMR just as clearly would violate its duty to remove injustices and correct errors *318 in servicemen’s records 14 if it refused to rectify a mistake that likely prevented promotion. Thus, the District Court should have undertaken to ascertain whether a substantial threat of prejudice was established by the evidence, and if it was the ABCMR’s refusal to reinstate should have been reversed as arbitrary.

In fact, the evidence raises serious doubts regarding the soundness of the ABCMR’s determination. We are told that the defective efficiency report indicated a downward trend in appellant’s performance, 15 and that could have been critically important to the decision of the selection boards, especially in view of the District Court’s finding that appellant’s record was otherwise “very good.” 16 Moreover, the Chief of the Engineering Branch of the Corps of Engineers informed appellant by letter after the action of the first selection board that the efficiency report was a significant item in his file. 17 Although the letter indicated that the Engineering Branch did not participate in the decisionmaking process, its opinion bears on the materiality of the report; the Engineering Branch, in which appellant sought advancement, certainly was familiar with the considerations relevant to caliber of performance within that branch. In support of the decision of the ABCMR, the District Court noted a similar negative report that appellant had received earlier in his career regarding his performance while stationed in Okinawa. 18 Yet, such a report would not diminish the impact of the more recent but defective efficiency report since the mere existence of the second adverse report suggested continued inefficiency, which qualitatively altered the character of appellant’s records. 19

The District Court also concluded that the letters of commendation erroneously omitted from appellant’s file were no more laudatory than the valid efficiency reports present in the file. Because the letters were therefore “cumulative in effect,” the court held that the ABCMR “could rationally have concluded that their omission did not result in [appellant’s] nonpromotion.” 20 Even if the omission of the letters of commendation from appellant’s file would not inexorably have precluded a favorable decision by the selection boards, it may have contributed to the Boards’ nonpromotion decision significantly since the omitted letters manifested more universal approval of appellant’s performance. Thus, in light of the doubts raised by the evidence, I would remand this case to the District Court for reevaluation of the question of prejudice by *319 the less restrictive standard of substantia] probability as opposed to necessary effect. 21

Ill

On my view of this case, I would not reach appellant’s Fifth Amendment due process contentions. Because, however, my colleagues have addressed the due process issues, and from my standpoint have resolved them unsatisfactorily, I am constrained to add a few remarks of my own.

First, unlike the majority, I am not at all convinced that appellant’s claim of loss of liberty without due process can be “disposed of expeditiously.” Appellant’s discharge has not seriously damaged his “standing and associations in his community,” 22 and he would not be entitled to due process protection on that basis. But in Roth 23 the Supreme Court recognized a second prong to the liberty-interest test in cases involving termination of employment. The Court held that governmental action that forecloses a range of employment opportunities deprives the affected person of a liberty interest:

[T]he State ... did not invoke any regulations to bar the respondent [an assistant college professor] from all other public employment in state universities. Had it done so, this . . . would be a different case. For “[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury. . . . ” 24 [A] state, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities “in a manner . that contravene[s] Due Process,” 25 . and specifically, in a manner that denies the right to a full prior hearing. 26

In the present case, the effect of appellant’s discharge was not only to terminate his active duty in the Regular Army but also to prevent his reentering on active *320 duty as a reserve officer. 27 Appellant argues with some force that civilian work in the general area of his expertise and experience is qualitatively different from employment as an officer in the Army. 28 Thus, appellant raises a substantial claim that his discharge pursuant to Section 3303 effected a deprivation of his liberty to pursue a range of professional opportunities, thereby entitling him to due process protection.

Second, although I agree with my colleagues that appellant has not established the existence of the property interest requisite, I believe their formulation of this issue is inadequate. Contrary to their assertion, an objectifiable expectancy supporting an entitlement to continued duty as a commissioned Army officer was not necessarily negated by Section 3303. That provision authorizes discharge only if an officer is not recommended for promotion by two successive selection boards. Hence, an officer cannot be discharged under Section 3303 unless he is twice determined to be nonpro-motable. This, without more, does not negate a legitimate claim of entitlement.

Section 3303, however, does not independently establish entitlement to continued employment because nothing therein suggests that the determinations of the selection boards are to be more than discretionary. The Army has promulgated criteria and guidelines to govern deliberations of selection boards, 29 but they are not inclusive. A selection board need not base its decision on any single factor and no specific qualifications are essential to promotion. 30 Thus, a candidate apparently cannot be assured of a recommendation for promotion by satisfying any particular group of criteria. 31 Because a selection board’s promotion decision involves so broad a range and so high a degree of discretion, an officer has no protected property interest in his Army officership.

These, then, are my thoughts on the constitutional aspects of this case. To repeat, I express them only to repel any notion that I concur in those advanced by my colleagues. As previously indicated, had my view of the case prevailed, we would simply reverse the District Court’s judgment and remand for reconsideration on the issue of prejudicial error without reaching the constitutional questions at this time.

. Part II infra.

. Compare, e. g., Langston v. Johnson, 156 U.S.App.D.C. 5, 7 , 478 F.2d 915, 917 (1973), and cases cited at notes 7-8 thereof.

. Part III infra.

. 10 U.S.C. § 3303 (1970).

. The statute simply authorizes the Secretary of the Army to furnish to the board the names of officers to be considered for promotion. 10 U.S.C. § 3300 (a)(1), (b)(1), (c) (1970).

. Army Reg. 624-100 ¶ 16(d), Joint Appendix (J.App.) 82, provides for inclusion of letters of recommendation in a candidate’s file:

Communications for selection boards. No officer is authorized to appear in person before a selection board on his own behalf or in the interest of another officer who is in a zone of consideration.

(1) An officer within a zone of consideration may write a letter to the selection board inviting attention to any matter of record in the Department of the Army concerning himself that he feels important in the consideration of his record. However, a commissioned officer being considered for Regular Army promotion will forward such letter through the appropriate Career Branch to the selection board (10 U.S.C. 3297(e)).

(2) Letters of commendation or appreciation and recommendations for promotion may be forwarded direct to the selection board.

(3) Communications which contain criticism or reflect upon the character, conduct, or motives of any officer will not be given to a selection board.

(4) Request for corrective special review of specific efficiency reports will not be included in letters directed to the selection board but may be forwarded to The Adjutant General, ATTN: AGPBFP Department of the Army, Washington, D. C. 20315. . . .

. See note 6 supra and letter from Major J. Stone, Evaluation Report Branch, to Major Adolph H. Knehans, Jr. (Sept. 17, 1973), J.App. 15 (advising that an efficiency report had been voided and removed from appellant’s records because he had served under the supervision of the rating officer for less than ninety days).

. Knehans v. Callaway, 403 F.Supp. 290, 293 (D.D.C.1975).

. Vitarelli v. Seaton, 359 U.S. 535 , 79 S.Ct. 968 , 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363 , 77 S.Ct. 1152 , 1 L.Ed.2d 1403 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968); see Dunmar v. Ailes, 121 U.S.App.D.C. 45 , 348 F.2d 51 (1965).

. Part II infra.

. Quoted by the District Court, Knehans v. Callaway, supra note 8, 403 F.Supp. at 292 .

Appellant argues that the ABCMR’s holding is inconsistent with the Army’s prior finding that inclusion of the defective efficiency report in his file was “material error” for purposes of invoking review by the Standby Advisory Board under Army Reg. 624-100 fl 18(b), J.App. 83. The Army’s position, however, is not necessarily self-contradictory. The efficiency report was voided and removed from appellant’s files without regard to its contents, see note 7 supra. Under Army policy, “material error” for purposes of Advisory Board review exists whenever a “major change is made to an efficiency report that was seen by a selection board.” Letter from Lieutenant Colonel James C. McCoy, Chief, Promotion Branch, to Joel W. Collins, Jr. (counsel for appellant) (Aug.. 2, 1973), J.App. 16. Advisory Board review, therefore, may be necessitated by elimination of an efficiency report from an officer’s file, after the report has been viewed by a selection board, even though the presence of the report in the file would not have jeopardized the officer’s chances for promotion.

. Knehans v. Callaway, supra note 8, 403 F.Supp. at 296 (emphasis in original).

. See Yee v. United States, 512 F.2d 1383 , 206 Ct.Cl. 388 (1975). Because the error in Yee was egregious, that decision would not require reversal on the facts of the present case, but it surely would not preclude it.

. See 10 U.S.C. § 1552 (1970); Yee v. United States, supra note 13, 512 F.2d at 1387 , 206 Ct.Cl. 388 . In Reale, 208 Ct.Cl. 1010 , 1011 (1976), the court observed:

The Board is to recommend action to correct “error” or “injustice,” 10 U.S.C. § 1552 . The two things are not the same. “Error” means legal or factual error. Normally, it is such that a court of law could correct it whether the soldier or sailor had first applied to a Correction Board, or not. If the Board when asked, fails to correct such an “error”, courts will correct it on judicial review. “Injustice,” when not also “error”, is treatment by the military authorities, that shocks the sense of justice, but is not technically illegal. Yee v. United States, 206 Ct.Cl. 388 , 512 F.2d 1383 (1975).

The Army’s transgression of its own regulations in this case, of course, constitutes legal error. See note 9 supra and accompanying text.

. Brief for Appellant at 6-7.

. Knehans v. Callaway, supra note 8, 403 F.Supp. at 296 .

. Id. at 295-296 .

. Id. at 295 .

. See Department of the Army, Promotion of Officers on Active Duty, app. §§ 3, 6, J.App. 88-89. Section 3 provides:

The basic and most important single document in the officer’s record is the efficiency report. The Manner of Performance section in each report must be closely examined. It is here that a pattern of strengths and weaknesses over a period of time will appear. . With each passing year the OEI, last computed in 1961, has less and less importance. . .

See also Letter from Colonel Joseph A. Jansen, Chief, Engineer Branch, to Major Adolph H. Knehans, Jr. (June 15, 1972), J.App. 64.

. Knehans v. Callaway, supra note 8, 403 F.Supp. at 295 n.4 (emphasis supplied).

. In the event that prejudice is found, the further question would be whether the reconsideration for promotion afforded by the standby advisory board remedied the error. The standby advisory board is not a statutory body, and the Secretary has expressly disclaimed reliance upon the standby advisory board as a qualified substitute for the statutory selection boards, or upon action of the standby advisory board as a legally acceptable compliance with the statutory requirements for discharge. Brief for Appellee at 19-20. The Secretary does contend, however, that “it is fairer to afford promotion reconsideration by having a standby advisory board consider the officer under the same criteria [and in comparison to a sample of the same candidates] which the statutory Selection Board previously considered.” Id. at 11 n.ll. Otherwise, the officer would have to compete with a different, and perhaps better qualified, group of officers. Id. If standby advisory board action were designed solely to afford an officer the possibility of immediate relief from prejudicial error such action could indeed only benefit the officer; but an adverse ruling by an advisory board should not be used to cut off an officer’s statutory right to proper consideration by two statutory boards. If an officer seeks reconsideration by two statutory boards after having been wrongfully denied promotion by two selection boards and denied relief by a standby advisory board, the Army can hardly refuse to afford the officer such reconsideration on the ground that it would be unfair to the officer to do so. If the officer wishes to take his chances in a pool of potentially better candidates, that is his indubitable statutory right. If the subsequent pool of candidates for promotion is less qualified than the affected officer, the Army cannot deny the officer the advantage of consideration in that pool, which was necessitated by the Army’s own serious error; nor would the Army have an interest in doing so, because thereby it would lose an admittedly superior officer.

. Board of Regents v. Roth, 408 U.S. 564, 573 , 92 S.Ct. 2701, 2707 , 33 L.Ed.2d 548, 558 (1972).

. Board of Regents v. Roth, supra note 22.

. Here citing Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 185 , 71 S.Ct. 624, 655 , 95 L.Ed. 817, 861 (1951) (Jackson, J. concurring).

. Here citing Schware v. Board of Bar Examiners, 353 U.S. 232, 238 , 77 S.Ct. 752, 756 , 1 L.Ed.2d 796, 801 (1957) (petitioner was not permitted to take the New Mexico bar examination and was thereby prevented from practicing law in New Mexico).

. 408 U.S. at 573-574 , 92 S.Ct. at 2707 , 33 L.Ed.2d at 559 , last citing Willner v. Committee on Character, 373 U.S. 96, 103 , 83 S.Ct. 1175, 1180 , 10 L.Ed.2d 224, 229 (1963) (petitioner passed the New York bar examination but was not admitted to the New York Bar).

. Letter from Colonel Robert J. Kirk, Deputy Director, Personnel Actions and Records, to Major Adolph H. Knehans, Jr. (Sept. 17, 1973), J.App. 71.

. Reply Brief for Appellant at 14.

. Department of the Army, Promotion of Officers on Active Duty (especially Appendix, “Guidance for Promotion Selection Boards”), J.App. 78-90.

. Letter, supra note 11, J.App. 16. Although the existence of discretionary authority to discharge or to deny promotion does not per se raise constitutional problems, the improper exercise of such discretion may well violate equal protection guarantees found in the Fifth and Fourteenth Amendments. See Schware v. Board of Bar Examiners, supra note 25, 353 U.S. at 239 . 246. 77 S.Ct. at 756. 760. 1 L.Ed.2d at 801-802, 805; Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886). See generally Bolling v. Sharpe, 347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 (1954).

. Compare Bishop v. Wood, 426 U.S. 341 , 96 S.Ct. 2074 , 48 L.Ed.2d 684 (1976) (city ordinance provided that a permanent city employee might be discharged if his work is substandard, or if he is negligent, inefficient or unfit to perform his duties, but the Court refused to read the ordinance as prohibiting discharge for any other reason and as thus conferring tenure on permanent employees), with Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970) (eligibility criteria for welfare bene-, fits gave rise to entitlement to benefits for those who satisfied those criteria).