Grier v. Grier

MAUZY, Justice,

concurring and dissenting.

My dissenting opinion of April 15,1987 is withdrawn and this concurring and dissenting opinion is substituted therefor.

I agree with the court’s decision that the community interest in military retirement benefits is derived from gross military retirement pay. I respectfully dissent as to the court’s holding that the military retirement benefits at issue herein are valued at the rank of major. I would hold that Elsie Grier is entitled to benefits valued at the rank of lieutenant colonel.

Edward and Elsie Grier were married November 25, 1959, and were divorced on September 18, 1975. Edward entered the U.S. Army on December 7, 1953, as a private E-l and rose to the rank of corporal. Edward then left the Army and entered college in September of 1955. On June 12, 1959, Edward was commissioned as a 2nd lieutenant, which commission was adjusted to July 29, 1960. On the date of the parties’ divorce, Edward had accrued 14.98 years of military service while married to Elsie and 16.84 years’ total time in military service. Edward’s rank on September 18, 1975, the date of divorce, was major, Army of the United States (AUS); however, on July 30, 1975, and prior to the divorce, Edward was placed on the 1975 AUS Lieutenant Colonel’s Promotion List. He received his lieutenant colonel’s commission on May 2, 1976.

In valuing at the rank of major Elsie’s share of the military retirement benefits, the court relies on Berry v. Berry, 647 S.W.2d 945, 947 (Tex.1983). I agree with *934 Berry in that, as a general rule and for the purpose of consistency, retirement benefits should be valued as of the date of divorce. Nevertheless, in applying that general rule to the instant cause, the court has placed form over substance. The result is that precision in the law for the sake of consistency has prevailed over equity. The instant cause is cut from the cloth of equity. The question herein is not what precise rank Edward Grier was serving on the date of divorce but rather, had he, in fact, already been promoted to the next higher grade on or before the date of divorce? I would hold that Edward Grier had been promoted to lieutenant colonel prior to the parties' divorce.

A determination of the value of the retirement benefits at issue herein requires an analysis of the statutes, regulations and procedures, all of which are mandatory, that govern and are peculiar to promotions in the armed forces. The promotion process begins with commanding officers, who make written evaluations, known as Officer Efficiency Reports (OERs), of the military members under their command. OERs are placed in an officer’s permanent military record, or file, and constitute the primary basis upon which promotions rest. Those military personnel files are reviewed by statutorily constituted Selection Boards, which operate under regulations prescribed by, in this instance, the Secretary of the Army. 10 U.S.C. § 3297 (1959) (recodified at 10 U.S.C. § 611 et seq. [1983]). Based on their reviews, the Selection Boards, which utilize a point system in evaluating the file of a military member, make promotion recommendations to the service secretary. See Ellis, Judicial Review of Promotions in the Military, 98 Mil.L.Rev. 129 (1982); Ford, Officer Selection Boards and Due Process of Law, 70 Mil.L.Rev. 137 (1975).

In making its recommendations, the Board follows a letter of instruction from the service secretary, which letter sets the maximum number of officers to be recommended in each grade. Ford, supra, at 132. Further, and without regard to vacancies, each promotion-list officer whose regular grade is 1st lieutenant, captain, or major is considered by a Selection Board for promotion to the next higher grade, far enough in advance of the date on which he will complete 7, 14, or 21 years of service so that if recommended, he may be promoted on the date on which he will complete that service. 10 U.S.C. § 3299 (b) (1959) (recodified at 10 U.S.C. § 628 [1983 & Supp.1986]).

Once selected for promotion by a Selection Board, promotion-list officers are either promoted or eliminated from the active list. 10 U.S.C. § 3299 (recodified at 10 U.S.C. §§ 631 , 632 [1983 & Supp.1986]). If an officer is “eliminated from the active list” pursuant to section 3299, he is a “deferred officer,” which is a military member who is considered for promotion to the grade of captain, major, or lieutenant colonel, but not recommended for promotion. 10 U.S.C. § 3303 (1959) (recodified at 10 U.S.C. §§ 631 , 632 [1983 & Supp.1986]). A deferred officer is considered again by the next Selection Board considering officers of his grade and promotion list, and if recommended, he may be promoted, or if not recommended, must retire, if eligible, or if not eligible for retirement, he must retire upon his eligibility for retirement. 10 U.S.C. § 3303 (c), (d), (1-3) (1959) (recodi-fied at 10 U.S.C. §§ 631 , 632).

Once selected for promotion, a Selection Board’s recommendations are submitted to the Office of the Deputy Chief of Staff for Personnel, who in turn forwards its recommendations for promotion to the service secretary, who forwards them to the president for submission to the Senate. Ford, supra, at 151. 1

Officers recommended and approved for promotion may be removed from the *935 Board’s list by the president on the ground that the promotion-list officer, in the president’s opinion, is not qualified for promotion. 10 U.S.C. § 3308 (1959) (recodified at 10 U.S.C. § 629 [1983]). However, any such removal by the president may not be arbitrary or capricious, and when such is the case, the military officer is entitled to judicial review. Boyd v. United States, 207 Ct.Cl. 1 , cert. denied, 424 U.S. 911 , 96 S.Ct. 1106 , 47 L.Ed.2d 314 (1975); Dorl v. United States, 200 Ct.Cl. 626 , cert. denied, 414 U.S. 1032 , 94 S.Ct. 461 , 38 L.Ed.2d 323 (1973).

Edward argues that because the president has the power to remove officers not qualified for promotion, his promotion to lieutenant colonel was not assured. The question then, is when may an officer be removed from a promotion list, once he has been selected and approved for promotion, with the advice and consent of the Senate?

Army Regulations provide that an officer may be removed from a promotion list “at any time” when it is found that disciplinary action has been taken against the officer. AR 624-100, Tllf 19(e), 20 (August 20, 1974; July 29, 1966). Further, the few cases wherein a military officer was selected and approved for promotion and subsequently was denied his commission prior to actual promotion indicate the kind of conduct for which removal is justified. William Martin, a Naval Reserve officer, was alleged to have “streaked” through the Biltmore Hotel Ballroom in New York City during a U.S. Naval Reserve dance and in the presence of fellow Naval Reservists “and their ladies.” Martin v. Warner, 419 F.Supp. 133, 134 (E.D.N.Y.1976). Although Martin’s promotion had been approved, he did not receive his commission. In a second case, Captain Anthony D’Arco, U.S.M.C., had received notice via his commanding officer of his selection for promotion to major, pending confirmation by the Senate. The Senate eventually confirmed D’Arco’s promotion, but while his name was pending before the Senate, D’Arco was charged with violations of the Uniform Code of Military Justice, alleging the theft of government building materials and wrongful appropriation of a government vehicle. In the meantime, D’Arco’s promotion was approved. Following a court-martial, D’Arco’s commission was withheld. His conviction was affirmed and promotion was denied. D’Arco v. United States, 441 F.2d 1173, 1174 (Ct.Cl.1971). 2

Thus, once an officer has been selected and approved for promotion by the president, with the advice and consent of the Senate, and his name subsequently is published in the applicable military circular, the signing of his commission is a matter of routine, and the actual receipt of his commission is assured, absent disciplinary action for an egregious act, such as moral misconduct or felony charges. 3 A rebut-table presumption that Edward would receive his promotion attached upon official notice that he had been approved for promotion. The community’s acquired rights were fixed and determined at the time Edward Grier’s name was published in the 1975 AUS Lieutenant Colonel’s Promotion List.

. Pursuant to the Armed Forces Act, appointments in commission grades, which include in ascending order 2nd lieutenant through major general, in the Regular Army shall be made by the president, by and with the advice and consent of the Senate. 10 U.S.C. § 3281 (l)-(8) (1959); § 3284 (recodified at 10 U.S.C. § 421 [1983]) (1959).

. D’Arco was a U.S. Marine officer whose promotion was approved by the Secretary of the Navy Marine Corps regulations providing for removal of an officer from a promotion list provided in paragraph 1420-2a of the Marine Corps Manual (1961): "Action toward withholding an officer’s promotion should be considered only for serious cause, for example, involvement in an incident which raises doubt as to his moral integrity, adversely reflects on his professional ability, or results in his being recommended for trial by court-martial. In such cases commanders should not deliver the promotion, but report the circumstances to the Commandant of the Marine Corps.” D’Arco v. U.S., 441 F.2d at 174, n. 2 .

. Similarly, the receipt of retirement benefits themselves are conditioned upon the occurrence of an event; i.e., the military member must retire and remain eligible to receive the benefits. Accordingly, such judgments should and do recite "if, as and when received.”