finding it “important” that the memo in question was “rendered by Case: 19-1016 Document: 37 Page: 12 Filed: 03/03/2020 12 STRAND v. UNITED STATES a military officer . . . , and not by a civilian employee” of the Army
How later courts described this case
- finding it “important” that the memo in question was “rendered by Case: 19-1016 Document: 37 Page: 12 Filed: 03/03/2020 12 STRAND v. UNITED STATES a military officer . . . , and not by a civilian employee” of the Army
- rejecting the proposition that a secretary is “free to accept and act favorably on the [board’s] findings and recommendations, or to ignore them, as he [sees] fit” be- cause such an interpretation of § 1552 “makes the words ‘acting through boards of civilian officers or employees’ Case: 19-1016 Document: 37 Page: 11 Filed: 03/03/2020 STRAND v. UNITED STATES 11 superfluous” (quoting the predecessor to § 1552)
- “Since the errors or injustices which might require correction were originally made by the military, Congress made it manifest that correction of these errors and injustices was to be in the hands of civilians.”
- at time of discharge plaintiff suffered from uncontrollable tremors of the head and hands, double vision and difficulty in using hands to write
Written by the judges who cited it.
The opinion
WHITAKER, Judge
(dissenting).
What the majority has done in its opinion amounts to reviewing the actions of the Secretary as an appellate court would review the decision of a lower tribunal. It has reviewed his decision, denying the plaintiff retirement and, consequently, retired pay, not only on a question of law but also on the facts. In effect, the majority says that the minority opinion of the Army Board for Correction of Military Records was wrong, and the majority opinion was right, and that the Secretary was arbitrary in not adopting the majority opinion.
But how can we say that the Secretary was arbitrary and capricious in adopting the view of the minority, and rejecting the view of the maj ority ? Would the Supreme Court be justified in saying that judges of this court, who had dissented from the opinion of the majority, were acting arbitrarily in not having concurred with the majority? ,
It is not for us to determine whether the majority of the Board for Correction of Military Records or the minority was correct. Jurisdiction to determine an officer’s right to retirement is vested in the Secretaries of the Army, Navy and Air Force. It is not vested in us and we have no right to review their decision unless we find that they had acted arbitrarily. In my opinion, we can make no such finding in this case.
Nor do I agree that the Secretary is bound by the action of the Board for Correction of Military Records. The Legislative Reorganization Act of October 25, 1951 ( 65 Stat. 655 ), does not vest in the boards for Correction of Military Records the right to correct an error or injustice. It vests that authority in the Secretary. It merely permits the Secretary to set up such boards to aid him in determining whether or not an error has been committed or an injustice done. Section 207(a) reads in part:
“The Secretaries of the Army, Navy, and Air Force and the Secretary of the Treasury (with respect *328 to the’ Coást' Guard), respectively, * * * are authorized to correct any military or naval record where in their judgment such action is necessary to correct an error or remove an injustice, * * * ” [Italics ours.].
This vests jurisdiction to correct the error or to remove the injustice in the Secretaries. The Act says ‘ that they “are authorized to correct any military or naval record where in their judgment such action is necessary” etc.
What I have omitted from the above quotation reads: “under procedures set up by them, and acting through boards of civilian officers or employees of their respective Departments.” To me this means nothing more than that the Secretary may seek the aid of this board of civilian officers or employees of his de-
partment in order to arrive at a judgment; but, after all, the judgment to be rendered is the Secretary’s judgment. He is not required to bow to the judgment of his subordinate officers and employees unless their judgment coincides with his judgment.
If I am correct in this, it cannot be said that the Secretary was arbitrary in adopting the view of the minority and rejecting the view of the majority of this board he had set up. It cannot be said that his action was arbitrary unless the law bound him to accept the judgment of this board, I do not think it does.
For the foregoing reasons, I respectfully dissent.
LARAMORE, Judge, joins in the foregoing dissenting opinion.