Petition — Boyd v. United States

In The

Supreme Court of the United States

No.__@5-753:4

GEORGE M. BOYD,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

‘ UNITED STATES COURT OF CLAIMS

G. Epmonp Hayes

2225 E. 21st Street

Wichita, Kansas 67214

(316) 265-1661

Counsel for Petitioner

E. L. Mendenhall, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 816-421-3030

deen tanh bccte aves bape wens

RE PT ee

QUESTION PRESENTED ....................5..

STATUTORY PROVISIONS INVOLVED .........

STATEMENT OF THE CASE ...................

REASONS FOR GRANTING THE WRIT ........

The Decision Below Affirms an Arbitrary and

Capricious Administrative Decision Which De-

nies the Petitioner His Right to Due Process

of Law and Which Establishes a Precedent

for Future Abuses of Discretion Concern-

ing the Correction of Military Records ......

l.

A.

The Assistant Secretary's Decision Re-

versing the Corrections Board Was Arbi-

trary and Capricious, Unsupported by

the Record, and in Conflict With the

Letter and Spirit of the Air Force Rat-

ing System and Its Procedural Require-

ED. i « cnc gueieny ecakiee Lames ans

The Assistant Secretary’s Decision Con-

travenes the Traditional Policy of Civilian

Control Over the Military As Expressed

in 10 U.S.C. § 1552(a), a Provision

Which Requires Clarification by the Court,

and Conflicts With the Principle of Def-

erence to the Trier of Fact .............

ES se re ee ed peieeekee an euns

APPENDIX—Opinion of the Court of Claims .....

U

Citations

Betonie v. Sizemore, 496 F.2d 1001 (5th Cir.

DE Wiis Gade kbehkd 65006605) CERRERCKE Sbbedéeus 4

Cole v. United States, 171 Ct. Cl. 179 (1965) ..... 4

Dori v. United States, 200 Ct. Cl. 626 (1973) ..... 11

Hertzog v. United States, 167 Ct. Cl. 377 (1964)

ee ere re ry pre rer 8, 10, 11

Nixon v. Secretary of the Navy, 422 F.2d 934 (2d

— rr re ee ee 7

Perry v. Sindermann, 408 U.S. 593 (1973) ........ 5

Proper v. United States, 139 Ct. Cl. 511 (1957) ...9, 10

Silverthorne v. Laird, 460 F 2d 1175 (5th Cir. 1972) 7

Turner v. Callaway, 371 F. Supp. 188 (D.D.C.

eee re ee de oe re be ene ote cueeeeons 10

Universal Camera Corp. v. National Labor Rela-

tions Board, 340 U.S. 474 (1951) ............... 11

Vallecillo v. David, 360 F. Supp. 896 (D.N.J.

i. ee eee eee eee ee eee de 10

Weiss v. United States, 187 Ct. Cl. 1, 408 F.2d

Sol. aca eee ee eh enenibee et 9, 10

Winters v. United States, 393 U.S. 896 (1968) .... 5

In The

Supreme Court of the United States

No.

GEORGE M. BOYD,

Petitioner,

vs

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

The petitioner, George M. Boyd, respectfully prays

that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Claims

entered in this proceeding on May 14, 1975.

OPINIONS BELOW

The opinion of the Court of Claims, not yet re-

ported, appears in the Appendix attached hereto.

JURISDICTION

The judgment of the Court of Claims was entered

on May 14, 1975. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1255.

Se ee

2

QUESTION PRESENTED

Whether the Assistant Secretary of the Air Force

acted arbitrarily and capriciously in reversing the

Correction Board’s decision and thereby denied petitioner

the due process of law guaranteed by the fifth amend-

ment to the Constitution.

STATUTORY PROVISIONS INVOLVED

Unitéd States Code, Title 10:

§ 1552. Correction of Military Records: Claims

Incident Thereto.

(a) The Secretary of the Military Department

under procedures established by him and approved

by the Secretary of Defense in acting through

boards of civilians of the executive part of that

military department may correct any military rec-

ord of that department when he considers it neces-

sary to correct an error or remove an injustice.

Air Force Manual 36-10(C2):

q 5-9 Letter of Evaluation.

. Significant disagreements between comments

made in the report and comments made in an

attached lewer of evaluation will be explained

or justified in the comments of the indorsing

official.

STATEMENT OF THE CASE

The petitioner is a retired major in the United

States Air Force with over twenty years of distin-

guished service to his credit. On March 1, 1971, the

petitioner was considered, but not selected, for pro-

motion to the rank of lieutenant. Having been twice

3

passed over for promotion to that rank, the petitioner

was mandatorily retired on November 1, 1971. The

Selection Board which considered the petitioner's pro-

had before it an Officer Effectiveness Report

(OER) for the period of November 15, 1969, through

November, 1970. (Court of Claims Opinion, p. 2).

The record before the Board omitted reference to a

Master’s Degree in Public Administration conferred on

the petitioner. (Brief for the Plaintiff, p. 12).

On July 31, 1971, the petitioner applied to the

Air Force Board for the Correction of Military Records

to have the OER voided. (Ct. Cl. Opinion, p. 2). The

military presented no evidence before the Board. (Brief

for the Plaintiff, p. 11). The findings of the Board

revealed that the rating officer had not, in the last

five years, visited the petitioner's station in order to

evaluate his performance, despite repeated requests by

the petitioner that he do so. (Plaintiff's Objections to

Defendant’s Motions to Dismiss, etc., p. 8). The Board

found serious, unexplained discrepancies between the

written and numerical evaluations of the rating officer.

Discrepancies were also discovered between the evalua-

tions of the petitioner's commanding officer, who char-

acterized his performance as outstanding and who

recommended him for immediate promotion, and that

of the rating officer, whose rating of ‘excellent, seldom

equalled’’ was not sufficient to support promotion.

Consequently, the Board, acting unanimously, found

the OER to be unjust and ordered it voided. Upon

finding that similar instances had occurred twice pre-

viously which had required the Board to void unjust

OER’s; and that the military had not yet moved to

correct those prior errors, the Board determined that

the unjust treatment was likely to be repeated in the

future, and therefore, ordered the petitioner's promo-

2. OO ew

4

tion to the rank of lieutenant colonel. (Brief for Plain-

tiff, Exhibit #1).

The Assistant Secretary of the Air Force disre-

garded the Board’s recommendation and refused the

relief granted therein. This action was taken on the

ground that, in his independent judgment, there was

no actual discrepancy between the ratings, that the

rating officer was better qualified than the petitioner’s

commanding officers to evaluate petitioner’s perfor-

mance, and that it would subvert the rating system

to void an OER under these circumstances. (Brief for

Plaintiff, Exhibit #2). The Court of Claims sustained

the Assistant Secretary on the grounds that he was

within his discretion and that his decision was sup-

ported by the evidence and was not arbitrary and

capricious.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Affirms an Arbitrary and

Capricious Administrative Pecision Which Denies the

Petitioner His Right to Due Process of Law and Which

Establishes a Precedent for Future Abuses of Discre-

tion Concerning the Correction of Military Records.

The due process clause of the fifth amendment

protects individuals against arbitrary and capricious

governmental action depriving them of life, liberty, or

property. It has been recognized that basic due pro-

cess guarantees apply to military personnel, Betonie v.

Sizemore, 496 F.2d 1001 (5th Cir. 1974), particularly

in the context of discharge proceedings such as are

ultimately involved in this case. Cole v. United States,

171 Ct. Cl. 179 (1965).

It is the function of the courts to make sure, in

cases properly coming before them, that the men

S

and women constituting our Armed Forces are

treated as honored members of society whose rights

do not turn on the charity of a military com-

mander.

Winters v. United States, 393 U.S. 896 (1968).

It was recognized in Perry v. Sindermann, 408 U.S.

593 (1973), that an individual may have a legitimate

property interest in continued employment where the

rules of the employing agency or mutually explicit

understandings support entitlement to such employ-

ment. In the present case, the plaintiff is a career

officer with over twenty years of service who was en-

titled to be either promoted, retained, or discharged

in accordance with the proper procedures established

by the Air Force and who has a cognizable interest

under the due process clause. This interest is protected

against arbitrary and capricious governmental action.

A. The Assistant Secretary's Decision Reversing the

Corrections Board Was Arbitrary and Capricious,

Unsupported by the Record, and in Conflict With

the Letter and Spirit of the Air Force Rating Sys-

tem and Its Procedural Requirements.

The Correction Board, reviewing all the evidence

before it, found serious discrepancies between the rat-

ing officer’s “‘word picture,” ie., written evaluation,

and his numerical rating, and between the rating of-

ficer’s evaluation and the letters of evaluation sub-

mitted by the petitioner’s commanding officers, who had

first-hand knowledge of petitioner’s performance of his

duties. (Brief for Plaintiff, Exhibit #1).

The Base Commanders, who were in daily contact

with the petitioner, rated him “extremely outstanding”

and recommended him for “immediate promotions”

6

and “promotion at the earliest date.’’ (Defendant's

Motions to Dismiss and for Summary Judgment, Ex-

hibit 5). Under the Air Force System of numerical

ratings for “overall evaluations,” a “word picture’ of

“outstanding” equates to an 8 numerical rating. On

the numerical scale for ‘‘promotion potential,’’ the word

picture ‘‘Demonstrates capability for increased respon-

sibility; consider for promotion in advance of contem-

poraries,’’ equates with a numerical rating of 3. (Defen-

dant’s Motion to Dismiss, Exhibit 7, pp. 36-48). The

commander’s comments, “promote at earliest date,”

and “recommend him for immediate promotion,’’ clearly

indicate that the Base Commanders recommended pro-

motion not at the usual rate of petitioner's contempo-

raries, but ahead of them, and indeed, forthwith. The

Rating Officer, however, rated the petitioner as ‘‘Ex-

cellent, seldom equalled’’ (numerical rating 7), and

‘Performing well in present grade; should be considered

for promotion along with contemporaries,’ (numerical

rating 2), which does not support promotion. (Brief

for Plaintiff, p. 3).

The Correction Board found this to be a serious

discrepancy. Such a disagreement would require ex-

planation by the indorsing official under AFM 36-10(C2)

q 5-9. Lack of such explanation provided grounds to

void the OER as unjust and as non-compliant with

the Air Force’s own regulations. The Assistant Secre-

tary, however, refused to recognize any distinction be-

tween the two ratings, nor did he require any explana-

tion for the disparity. (Brief for Plaintiff, Exhibit #2,

pp. 1-2). Such an action must result from either un-

familiarity with the rating system or a willful refusal

to recognize a hierarchy of numerical and descriptive

distinctions which has been established by statute for

7

use in evaluating the performance of military personnel.

The Assistant Secretary’s conclusion is arbitrary and

capricious in light of this well-established system.

Furthermore, his misinterpretation of the rating

categories results ir a violation of the Air Force’s own

regulation requiring explanations of rating disparities

such as the one involved in the present case. Nu-

merous cases have recognized that the Armed Forces

must be bound by their own regulations. Silverthorne

v. Laird, 460 F.2d 1175 (5th Cir. 1972); Nixon v. Secre-

tary of the Navy, 422 F.2d 934 (2d Cir. 1970). The

failure of the Air Force to abide by its own procedural

requirements results in unfairness and a denial of due

process to the petitioner.

As an alternative reason for his decision, the As-

sistant Secretary stated that, even if there might be

some shade of difference between the two ratings, the

Rating Officer was obviously better qualified to eval-

uate the petitioner than were the Base Commanders,

since the Rating Officer compared petitiorer’s perfor-

mance with that of other officers in his field. (Brief for

Plaintiff, Exhibit #2, p. 3). This reasoning is some-

what disingenuous. In this case, the Rating Officer

never observed the petitioner's performance. AFM

36-10(C2) ¢ 5-9 evidences a well-founded concern that

in situations where the rating officer does not personally

observe the ratee, there is a large margin for incorrect

and biased evaluations. For this reason, an explana-

tion is required where any discrepancy is evident be-

tween the evaluations of the Base Commander, who is

in close contact with the ratee and has every oppor-

tunity to observe his conduct, and the distant rating

officer who, in this case, was stationed more than 1,600

miles from the petitioner's base. (Brief for Plaintiff, p.

3). The Assistant Secretary has himself recognized the

fallibility of such rating officers by voiding the ratings

of the petitioner on two prior occasions. (Brief for

Plaintiff, p. 4).

Moreover, there is no evidence that, in this case,

petitioner’s record was compared with that of other

officers in similar positions. There was no evidence to

that effect before the Board; in fact, the military pre-

sented no evidence of any kind. (Brief for Plaintiff, p.

11). Consequently, the Assistant Secretary not only

acted in derogation of the policy behind AFM 36-10(C2)

q 5-9, but acted on an assumption of evidence not in

the record. Such action is arbitrary and capricious.

Hertzog v. United States, 167 Ct. Cl. 377 (1964).

The Assistant Secretary’s final rationale was that

voiding an OER under these circumstances would sub-

vert the rating system. (Brief for Plaintiff, Exhibit #2,

p. 2). As the previous discussion indicates, the result

would be quite the contrary. The rating system is in-

tended to operate fairly and evenhandedly with respect

to all military personnel. The explanation requirement

in ¢ 5-9 is designed to insure that personnel who have

no contact with their rating officials are evaluated fairly

and according to their actual capabilities. Voidance

of the OER would uphold, not derogate, the policy

behind that provision. In any event, it is doubtful

whether such a generalized policy rationale should jus-

tify the infliction of injustice on an individual officer.

Finally, the Assistant Secretary chose to ignore

the fact that the petitioner’s record as it was presented

before the Selection Board was not only defective in

terms of the disparity of ratings but also in the omis-

sion of the petitioner's achievement of a Master’s De-

9

gree. (Brief for Plaintiff, p. 12). The Assistant Secre-

tary assumed that this omission would not affect the

decision of the Selection Board. This assumption flies

in the face of the “whole man’ concept which requires

that servicemen be evaluated on the basis of their total

achievements and characteristics. While the Selection

Board has wide discretion, it must have before it rec-

ords which are substantially complete and fairly portray

the officer’s record. Where the record omits pertinent

facts, it will not support the Selection Board’s deci-

sion. Weiss v. United States, 187 Ct. Cl. 1, 408 F.2d

416 (1969). Thus, at the very least, the Assistant

Secretary had the obligation to void the Selection

Board's decision. His failure to do so was arbitrary

and capricious.

When taken together with the additional fact that

the military had obstinately failed to execute the cor-

rections mandated by the Assistant Secretary’s two

prior decisions (Brief for Plaintiff, p. 12), the record

clearly substantiated the Correction Board’s conclusion

that an order for promotion was appropriate in order

to prevent recurrences of a pattern of discrimination

against the petitioner. For the Assistant Secretary

to override this conclusion without any support in the

record was arbitrary and capricious. Proper v. United

States, 139 Ct. Cl. 511 (1957).

The Assistant Secretary's action was arbitrary and

capricious in that it lacked any basis in the record and

clearly contravened both the spirit and the letter of

the regulations establishing the Air Force ratings sys-

tem. It also conflicted with two broader policy con-

siderations, as discussed below.

10

B. The Assistant Secretary's Decision Contravenes

the Traditional Policy of Civilian Control Over

the Military As Expressed in 10 Rule U.S.C. § 1552(a),

a Provision Which Requires Clarification by the

Court, and Conflicts With the Principle of Defer-

ence to the Trier of Fact.

The constitutional tradition of this country reflects

a deep-seated belief in the desirability of civilian con-

trol of the military. Véallecillo v. David, 360 F. Supp.

896 (D.N.J. 1973). This belief was embodied in 10

U.S.C. § 1552(a), which requires that the Secretaries

of the various services, and their agents, must act

“through civilian boards’’ in correcting military records.

The function of the civilian Corrections Board is clearly

to act as a check on the military hierarchy and as-

sure fair treatment to military personnel. It has been

recognized in numerous cases that the Secretaries and

Assistant Secretaries of the services are often par-

ticularly susceptible to the influence of their military

advisors. Where such officials act on military advice

in reversing a Correction Board determination, they are

invariably taken to task by the courts. Hertzog, supra;

Proper, supra; Weiss, supra.

It is not clear under § 1552 exactly how much

deference the officials should give to Correction Board

determinations. (See the concurring opinion of Judge

Nichols in the lower court decision, pp. 10-12). This

question should be clarified in order to prevent a recur-

rence of just such abuses as the one involved in the

present case. In any event, it has been held that a

Secretary of a military department cannot overrule

a recommendation of a Correction Board where

the findings of the Board are justified by the rec-

ord. Turner v. Callaway, 371 F. Supp. 188 (D.D.C.

1974). The courts have also refused to overturn

8

\ .

‘

11

Correction Board decisions which are based on

substantial evidence, Hertzog, supra; Dori v. United

States, 200 Ct. Cl. 626 (1973). In the present

case, the Assistant Secretary’s decision conflicts with

the apparent intent of Congress to inject some civilian

control into the process of correction of military records.

It also is unsupported by the record. Moreover, the

decision establishes a questionable precedent by allow-

ing a Secretary to override the decisions of Correc-

tions Boards essentially at his leisure by simply dis-

torting the interpretation of the rating system.

Finally, the Assistant Secretary’s capricious refusal

to give any credence to the findings of the Board con-

travenes the established policy of deference to the trier-

of-fact. Universal Camera Corp. v. National Labor

Relations Board, 340 U.S. 474 (1951). In the present

case, the Corrections Board heard all the evidence which

was presented. The Assistant Secretary was not pres-

ent and did not at any time take in additional evi-

dence. (Plaintiffs Reply to Defendant’s Response to

Plaintiff's Cross-Motion for Summary Judgment, p. 2).

The Corrections Board found not only discrepancies in

the various evaluations, but also a pattern of recal-

citrance and bias against the petitioner, possibly re-

sulting from racial considerations, which required im-

mediate and affirmative action. The Assistant Secre-

tary, acting on the basis of evidence not present on

the record and in total disregard of the evidence that

actually did exist, essentially presumed good faith on

the part o! the military and reversed the Board. Such

action lacks any sense of deference to the trier of fact

and, as noted above, conflicts with prior decisions

establishing that the determinations of corrections

boards are final if supported by the evidence. Dori,

supra.

12

CONCLUSION

The decision below affirmed an arbitrary and

capricious decision by the Assistant Secretary of the

Air Force (Manpower and Reserve Affairs) which over-

ruled a Correction Board decision, which unlike the

Assistant Secretary’s decision, was substantiated by

the facts of the case. The decision resulted in a denial

of due process of law to the petitioner and estabished

a precedent by which the Assistant Secretary can over-

ride the Board’s decisions by means of misinterpreta-

tion of the ratings system as applied. Such a precedent

conflicts with the Air Force’s own procedural require-

ments and with the policies of deference to the trier of

fact and of civilian control over the military. In ad-

dition, the case calls into question the precise meaning

of the language of 10 U.S.C. § 1152(a).

For these reasons, a writ of certiorari should be

issued to review the judgment and decision of the Court

of Claims.

G. Epmonp Hayes

2225 E. 2ist Street

Wichita, Kansas 67214

Counsel for Petitioner

4s

Al

APPENDIX

On the Gnited States Court of Claims

No. 53-74

(Decided May 14, 1975)

GEORGE M. BOYD v. THE UNITED STATES

G. Edmond Hayes. attorney of record, for plaintiff.

Lawrence S. Smith, with whom was Assistan’ Attorney

General Carla A. Hills, for defendant.

Before Nicrots. Kcnzic, and Bennett, /udges.

ON DEFENDANT'S MOTIONS TO DISMISS AND FOR SUMMARY

JUDGMENT AND PLAINTIFF'S CROSS-MOTION FOR SUMMARY

JUDGMENT

Bennett, Judge, delivered the opinion of the court:

The question presented in this case is whether the Assistant

Secretary of the Air Force for Manpower and Reserve A fairs

acted arbitrarily and capriciously, and thus unlawfully, in

rejecting certain recommendations of the Air Force Board

for Correction of Military Records (hereinafter, the Cor-

rection Board) which were favorable to plaintiff and would

have resulted in his promotion. We hold that the Assistant

Secretary did not act arbitrarily, capriciously, or contrary to

law. Therefore, his action cannot be set aside by the court.

Plaintiffs petition must be dismissed.”

2 Plaintiff's petition named the Secretary of Defense and tbe Secretary of

the Air Force as defendants. in addition to the United States. As plaintiff

conceded in ora) argument. those named individuals are not proper defend-

ants in tbis action. Plaintiff's petition is therefore dismissed as to those

individuals at the outset. This court can enter judgments only against the

United States. 28 U.S.C. § 1491: National Cored Forgings Co. +. United

States, 126 Ct. Cl. 250, 256, 115 F. Supp. 469, 473 (1953).

573-839—75

A2

2

Plaintiff is a retired Regular major in the United States

Air Force with long and honorable active duty, beginning

as a Reserve officer in 1/48. ITaving been twice deferred for

promotion to permanent lieutenant colonel, he was manda-

torily retired on November 1, 1971, pursuant te 10 U.S.C.

§ 8913. ‘The second selection board which, on March 1, 1971,

considered, but did not select plaintiff for promotion, had

before it as part of plaintiff's official record, his latest Officer

Effectiveness Report (OER) covering the period Novem-

ber 15, 1969 through November 14, 1970. Upon notification

that he was to be mandatorily retired, plaintiff unsuccessfully

sought, under the provision of AFR 31-11, to have the fore-

going OFR voided by the Officer Personnel Records Review

Board. Then, on July 31, 1971, he applied to the Correction

Board for the following relief: (1) voidance of his most

recent OER; (2) promotion to permanent licutenant colonel

effective July 9, 1971; (3) further promotion to the tempo-

rary grade of colonel; and (4) revocation of his mandatory

retirement and restoration to active duty. The board held a

hearing at which plaintiff made a personal appearance and

was represented by counsel. For reasons discussed below, the

Correction Board, in a decision on December 17, 1971, re-

solved in plaintiff’s favor “reasonable doubt” that plaintiff

had been justly treated by the selection board of March 1,

1971. It recommended that plaintiff's OER be voided, that

plaintiff be restored to active duty, and that he be promoted

to the rank of permanent lieutenant colonel. Only plaintiff's

requested further promotion to the temporary grade of

colonel was rejected by the board.

The board’s recommendations were reviewed by the Assist-

ant Secretary of the Air Force for Manpower and Reserve

Affairs? The Assistant Secretary, on February 21, 1972,

rejected the board’s recommendations and denied plaintiff's

application because he found no error or injustice in the

record, Plaintiff challenges the Assistant Secretary’s action

by this suit filed February 13, 1974.

*Pursuant to 10 U.S.C. § 1552, the Secretary was authorized, under pro-

cedures established by him, to act upon the recommendations of the Cor-

rection Board. The Secretary delegated this function to the Assistant

Secretary by AF Order 100.1 of August 1, 1969, and by a later order dated

April 17, 1972.

—— 2 ————

A3

3

The alleged error or injustice in this case is the rating

received by plaintiff in that final OER. The OER required

the rater to assess the officer’s “overall evaluation” and “pro-

motion potential.” In the former category there were nine

choices, the highest three of which were in the following

order of descent :

9 Absolutely superior.

8 Outstanding; almost never equaled.

7 Excellent; seldom equaled.

In the category of “promotion potential,” there were four

choices, the highest three of which were:

4 Outstanding growth potentia] based on demonstrated

rformance; promote well ahead of contemporaries.

3 Bomenes rates capability for increased responsibility ;

consider for advancement ahead of contemporaries.

2 Performing well in present grade; should be con-

sidered for promotion along with contemporaries.

Plaintiff was rated a 7-2.

The questioned OER contained two attached “letters of

evaluation.” The letter by plaintiff's TAC wing commander

at McConnell AFB, Kansas, noted that Major Boyd had

performed in “an extremely outstanding manner” as com-

mander of his manpower management engineering detach-

ment, that his leadership was “outstanding,” that he had

engaged in various activities to improve himself, including

completion of 24 hours of graduate education toward a

master’s degree to be completed in December 1970, and rec-

ommended plaintiff for “immediate promotion to the grade

of Lieutenant Colonel.”

The deputy base commander at McConnell AFB also

spoke in glowing terms of plaintiff's efficiency, his profes-

sionalism, his advanced educational efforts scheduled to re-

sult in a master’s degree in December 1970, initiatives

beyond the boundaries of duty, and recommended that since

he was “fully capable of assuming greater responsibilities

compatible with the rank of lieutenant colonel [that he]

should be promoted at the earliest date.”

The director of Manpower and Organization at TAC head-

quarters, Langley AFB, Virginia, was the rating officer. His

statement said that under plaintiff’s leadership his detach-

A4

4

ment had functioned in an “excellent manner.” He recog-

nized plaintiff’s self-improvement efforts and his public

relations activities reflecting favorably upon the Air Force.

The deputy chief of Plans, Langley AFB, while stating that

he had not personally observed plaintiff’s duty performance,

indicated he was aware of plaintiff’s « “orts at McConnell

AFB and endorsed and concurred in the comments and

evaluation of the rating officer.

Neither the rater nor the deputy chief of Plans at Langley

AFB had directly supervised plaintiff during the period

covered by the OER. Plaintiff was stationed at McConnell

AFB in Kansas, while the rater and the deputy chief were

at Langley AFB, Virginia. It appears that neither visited

McConnell AFB during the period in question. Such a cir-

cumstance, however, is anticipated. AFM 36-10(C3), para.

5-9 (1968), provides that where the rater is unable directly to

supervise the officer to be rated, he should obtain evaluation

letters from the officia] most familiar with the performance

of the officer who is rated. This was done in the instant case

by the two evaluation letters from McConnell AFB made a

part of the OER.

The heart of plaintiff’s argument, and the besis for the

Correction Board’s favorable recommendations, is that the

7-2 rating received by plaintiff is allegedly inconsistent with

the rater’s own comments and with the letters of evaluation

written by plaintiff’s immediate supervisors at the Me-

Connell AFB. The Assistant Secretary, in rejecting the

board’s recommendations, found no inconsistencies and

further stated that any inconsistency between the OER and

the evaluation letters would not in any event provide a

basis for voiding the OER. Before considering the alleged

inconsistencies, we should first recall the standard by which

we review the Assistant Secretary’s decision.

Pursuant to 10 U.S.C. § 1552, the Secretary, “unger pro-

cedures established by him,” and “acting through boards

of civilians of the executive part of that military depart-

ment,” may correct a military record “when he considers

it necessary to correct an error or remove an injustice.” Jt

is clear from the statute that the Secretary’s decision is a

discretionary one. The statute is implemented by AFR 31-3,

para. 22 (1970), which states :

A5

5

22. Action by the Secretary of the Air Force. The

record of the rd’s proceedings will be forwarded to

the Secretary of the Air Force who will direct such

action in case as he determines to be appropriate,

which may include the return of the record to the Board

for further consideration when deemed necessary.

It is thus seen that whereas the Secretary in correcting

a military record is to act through a board of civilians, as

required by statute, he has by regulation authorized by the

statute retained the authority to take such final action on

board recommendations as he determines to be appropriate.

The regulation is thus not in conflict with the statute. More-

over, another statute, 10 U.S.C. § 8012, gives to the Secre-

tary of the Air Force complete responsibility for conducting

all affairs of his department. That section gives to the Secre-

tary authority to delegate his powers to assistant secretaries.

Further, it states in subsection (e) as follows:

(e) The Secretary, as he considers appropriate, may

assign, detail, and prescribe the duties of the members

of the Air Force and civilian personne] of the Depart-

ment of the Air Force.

We consider this sufficient also to encompass the board of

civilians constituting the Air Force Board for the Correction

of Military Records. Air Force Order 100.1 assigned to the

Assistant Secretary for Manpower and Reserve Affairs the

authority to act with the authority of the Secretary in mat-

ters of manpower and organization, formulation, review and

execution of plans, policies and programs relating thereto,

and including the Air Force Board for Correction of Mili-

tary Records. We adhere to the view expressed in Proper v.

United States, 139 Ct. Cl. 511, 154 F. Supp. 317 (1957), that

when he acts to correct a military record (he did not correct

one here) it should be through the board. Because of the

board’s broad authority, its recommendations are entitled

to considerable respect. But, as we said in Proper, supra, 139

Ct. Cl. at 526, 154 F. Supp. at 326, “we do not suggest that

the Secretary may not overrule the recommendations of the

Correction Board where the findings of that Board are not

justified by the record on which the findings were made.”

Accord, Mercereau v. United States, 155 Ct. Cl. 157 (1961).

A6

The court, in turn, may reject the decision of a Secretary

only if he has exercised his discretion arbitrarily, capri-

ciously, in bad faith, contrary to substantial evidence, or

where he has gone outside the board record, or fails to ex-

piain his actions, or violates applicable law or regulations.

Then we will not hesitate to set him right. Weiss v. United

States, 187 Ct. Cl. 1, 5, 408 F. 2d 416, 418 (1969) ; Hertzog

v. United States, 167 Ct. Cl. 377, 383 (1964) ; Ficks v. United

States, 145 Ct. Cl. 522, 527, 172 F. Supp. 445, 448 (1959) ;

Proper v. United States, supra, 139 Ct. Cl. at 526, 154 F. Supp.

at 326. A decision which is contrary to all evidence would

clearly be arbitrary. Betts v. United States, 145 Ct. Cl. 530,

535, 172 F. Supp. 450, 453 (1959).

Short of such decisional errors, the Assistant Secretary’s

discretion is not to be interfered with lightly, especially in

view of the courts’ traditional reluctance to involve them-

selves in internal affairs of the military, in which they have

little or no special competence and less responsibility. Orloff

v. Willoughby, 345 U.S. 83, 94 (1953) ; A/indes v. Seaman,

453 F. 2d 197 (1971). The Secretary and selection boards ap-

pointed pursuant to his authority, 10 U.S.C. § 8297, are pre-

sumed to perform fairly and lawfully in absence of clear and

persuasive evidence to the contrary. Cooper v. United States,

203 Ct. Cl. 300 (1973) ; Brenner v. U/nited States, 202 Ct. Cl.

678, 685-86, 692, 696 (1973) rt. denied, 419 U.S. 831 (1974).

The Secretary found no _n evidence to vitiate the selec-

tion board decision in the record before the Correction

Board or in the rationale of that board’s conclusions and

recommendations.

The Assistant Secretary’s finding that plaintiff’s 7-2

rating was consistent with the rater’s written comments or

“word picture” is unassailable. The “overall evaluation” of

a “7” means “excellent, seldom equaled”; the rater describes

the functioning of the 4500th Support Squadron (TAC),

under plaintiff’s leadership, as “excellent.” Thus, even the

same adjective is used. With regard to “promotion potential”

plaintiff was rated as a “2,” meaning “perfonning well in

present grade; should be considered for promotion along

with contemporaries.” No disparity is shown between the

rater’s laudatory comments and such a rating.

A7

7

The alleged inconsistency between the OER and the

letters of evaluation is a weightier argument, but we are

not prepared to reverse the Assistant Secretary’s decision

that such inconsistency did not exist, or if it did exist, it

would be a bad precedent and contrary to his policy that

forbids letters of evaluation by jocai commanders irom being

binding on the rating officer and thus guaranteeing promo-

tion regardless of all other factors the rating officer must

consider on a broader basis. The evaluation letters referred to

plaintiff as “outstanding,” while the OER rated plaintiff as

“excellent, seldom equaled.” As the Assistant Secretary

pointed out, the rating “excellent. seldom equaled” is further

defined in AFM 36-10 (C2), para. 6.5 (1968), to mean an

“officer whose exceptional performance is worthy of special

notice. He must perform most aspects of his job in an out-

standing manner.” The next higher rating (an “8”) is defined

as follows:

(8) Outstanding, Almost Never Equaled. Rating in

this box must be reserved for those very few officers,

whose performance, initiative, leadership, and person-

ality set them apart as having the potential for high

staff or commend assignments. [Emphasis supplied. ]

Plaintiff's endorsements did not suggest plaintiff had the

potential for such command. It may be seen, therefore, that

plaintiff's rating of “7” (“perform[s] most aspects of his

job in an outstanding manner”) cannot be found clearly in-

consistent with his evaluation as “outstanding” by his base

commanders. Nor can it be said that plaintiff was clearly

entitled to higher rating or promotion just because he was

recommended for it by his base commanders. As the Secre-

tary said, that “would be to hold that the local commanders

may usurp the assigned function of the rater, and that would

be to pervert the OER system.”

The Assistant Secretary acted within his discretion, as

wel), when he failed to find a discrepancy between the rater’s

recommendation that plaintiff be promoted along with his

contemporaries and the evaluation letters which recom-

mended promotion “at the earliest date” or “immediate pro-

motion.” As was pointed out by the Secretary, immediate pro-

motion in the circumstances of this case would have been

a

A8

promotion with contemporaries. Furthermore, the Assistant

Secretary stressed that the rater is the only official with the

responsibility and opportunity to compare plaintiff with

other officers. For instance, if all majors were recommended

for promotion, or more were recommended than authorized

for appointment, the rater must attempt to ascertain which

are best qualified. This comparison function of the rater ap-

plies equally, of course, to plaintiff’s “overall evaluation”

cliscussed above.* Under the Air Force Manual 36-10, para.

6-5 (1967), the rating officer is charged with making “each

judgment * * * only in comparison with other officers serv-

ing in the same grade at the time the report is made.” The

Assistant Secretary’s decision stated, in part :

°° * And as the TAC Officer Evaluation Report

Review Board noted, the rater was well qualified in the

manpower field and was obviously better qualified to

evaluate the applicant in his primary responsibility,

manpower-management, than the local commanders; he

was In & position to compare the effectiveness of the unit

under the applicant’s leadership with other manpower

detachments throughout TAC and to know how the ap-

plicant responded to TAC requirements. * * * the rater

had comparative performance information available to

him which the local commanders did not * * * which

could well account for any shadings of difference in the

evaluations.

The Secretary, however, found no significant disagreements

between the rater’s evaluation and the letters of evaluation

which required explanation or justification, and neither do

we.

It follows that since the Assistant Secretary acted with

reasonable discretion in upholding the validity of the OER,

he was acting properly and within his statutory authority in

* An inconsistency between the evaluation letters and the OER is sug-

gested by plaintif@. The letters noted that plaintiff's application for a master’s

degree had been approved for December 1970 completion. The OER, on the

other hand, stated only that plaintiff bad completed 22 hours towards his

master's degree. If there is any inconsistency here, it is de minimis. Plaintiff

had not qualified for his degree during the period covered by the OER.

Furthermore. plainti@ bad the right to notify the selection board of the fact

that he hed attained the degree. 10 U.S.C. § 8207(e). The board met on

March 1, 1971. The court record does not show when the degree was actually

awarded, but the potential award was in the rater's knowledge, noted by

him, aod thus before the selection board.

Ag

rejecting the Correction Beard’s recommendations that

plaintiff be promoted to lieutenant colonel] and restored to

active duty. Since there is no basis for voiding the OER,

there is no basis for agreement with the Correction Board

in overriding the selection board’s action in not selecting

plaintiff for promotion. It might be noted that even had the

OER been voided, or had plaintiff been rated more highly,

there was no assurance thet plaintiff would have been pro-

moted. The function of the Secretary and of a selection board

as to appointments and promotions is discretionary and their

actions cannot be presumed. Cooner v. United States, supra;

Clinton v. United States, 191 Ct. Cl. 604, 423 F. 2d 1367

(1970). At least five selection boards at one time or another

had deferred plaintiff for promotion although at one time a

board had before it the three highest ratings plaintiff had

received in his military career—8-4, 8-3, and 8-3.

The fact that plaintiff has been passed over signifies no

disrespect to him. His military record appears, from all the

papers before us, to have been exemplary in every respect.

Numerous worthy and qualified officers are passed over an-

nually and never reach the top in their profession. They may

be qualified but—in the judgment of the Secretary and the

selection board vested with discretionary authority to make

the promotions—imay not be the best qualified of those avail-

able for the limited number of positions. The same problem

can be said to confront other ambitious professional] people.

There are fewer rungs as one climbs toward the top of the

achievement ladder. Not only are manpower requirements

a factor but appropriations also sometimes have a bearing

on availability of opportunities in the Government service.

We have not been shown here that any officer with a record

comparable to plaintiff's was promoted ahead of him. There

is no showing of bias or prejudice here which might sug-

gest an error or injustice in selection board proceedings.

Indeed, we note in passing that the Secretary on two prior

occasions—in 1968 and in 1970—did sustain the Correction

Board recommendations to correct plaintiff’s OER’s. This

tends to show that where justified by the evidence plaintiff

has been granted relief administratively and that he has

not been singled out by the Secretary for unfavorable

treatment.

Al0

10

The Correction Board’s conclusion in plaintiff's favor,

based entirely on what it described as “reasonable doubt

whether he did in fact receive a just and equitable considera-

tion by the permanent lieutenant colonel] selection board”

does not withstand the contrary analysis and conclusion made

in good faith, within the law, and without arbitrariness or

caprice by the Assistant Secretary in the present case. To

change a record upon such a tenuous basis would be without

support in Jaw, unjustified, and unfair to others who in all

probability have been passed over with qualifications simi-

lar, or superior, to plaintiff's. In sum, we cannot find upon

careful examination of the considerable record in this case,

that the Assistant Secretary acted unlawfully in rejecting

assertions of alleged inconsistencies in plaintiff's OER and

Jack of support fo. it in the letters of evaluation, and in

refusing to reinstate or to promote plaintiff contrary to

selection board determination. We cannot predicate a judg-

ment here based on a mere nuance as to a rating, which is

a debatable one at best. Ratings and promotions are dis-

cretionary matters with which the court will continue to be

“scrupulous not to intervene” unless clear error is shown or

relief is mandated by law or regulation. Orloff v. Wil-

loughby. supra at 94; Yee v. United States, Ct. Cl. No. 449-

73, decided March 19, 1975; Dorl v. United States, 200 Ct. Cl.

626, cert. denied, 414 U.S. 1032 (1973). There is no legal

basis for any of plaintiff's claims.

Defendant’s motions to dismiss and for summary judg-

ment are granted. Plaintiff’s cross-motion for summary

judgment is denied. The petition is dismissed.

NicuHo.s, Judge, concurring:

I concur in the result. Respectfully, I venture to differ

with the court’s reasoning on only one or two points, though

agreeing with most of what it has to say.

The Act, 10 U.S.C. § 1552, for Correction of Military Rec-

ords, was passed in 1946 in course of an ambitious effort in

legislative reorganization, to delegate the function of con-

sidering what had been private bills passed upon, at least

theoretically, by the entire Congress. The Indian Claims

Commission Act, 25 U.S.C. § 70a and ff., also was born in

All

11

the same spasm ; the two Acts are twins in other respects than

that both make this court a lot of work. In view of their ori-

gin, both must be regarded as delegating legislative author-

ity. Both call for recognition and enforcement of moral

obligations, which is primarily a Jegislative function. United

States v. Realty Co., 163 U.S. 427 (1896). Normally the legis-

Jature transmutes moral obligations into legal, which judicial

and quasi-judicial tribunals then enforce. Here the two func-

tions are merged into one.

In 1946 the citizen soldiers and sailors drafted to fight

World War II were pouring back into civil life. The feel-

ing—right or wrong—was that many of them might be

handicapped by bad military records created without due

process in the hurly-burly of the war, and that the career

military who would remain in charge at the Pentagon would

not be much interested in effecting corrections. Hence the

provision that the Service Secretaries should act “through

boards of civilians”. I have never had explained to me just

what that language means. On the one hand, the legislative

purpose would appear to be frustrated if the Board members

are simply part of the Secretaries’ staff advisers, to be over-

ruled at pleasure. On the other, it has never been held that

he must delegate full authority to the civilian Board, as he

does with Wunderlich reviews of contract disputes. That

Act, 41 U.S.C. § 321-22, offers mor> sweeping protection to

the citizen against military absolut'sm in his capacity as

contractor, than the Correction Board legislation affords

him in his capacity as a uniformed military employee, pos-

sibly an involuntary one. But the latter Act must be con-

strued to accomplish some purpose, in everything that it says.

It could have said the Secretary could correct military rec-

ords, taking advice from whatever source he pleased. When

Congress said he was to do it through a civilian Board, this

must have had a meaning. Proper v. United States, 139 Ct.

Cl. 511, 154 F. Supp. 317 (1957). See, Ogden v. Zuckert. 298

F. 2d 312, 316 (D.C. Cir. 1961).

In light of the foregoing the Air Force regulation, AFR

31-3, is notably silent as to whether the Air Force Secretary

is required to attach any weight to Board decisions. This

presents at least a potentiality of frustrating the Congres-

sonal intent, and explains the care with which we always,

ee

Al2

12

as here, scrutinize a Secretary’s decision overruling a Cor-

rection Board. A declaration of the guidelines the Secretary

follows in performing his review function would ease our

task considerably. It is true the Secretary also is a civilian,

but he is se dependent on his military subordinates that

this fact alone is often, as in the legislation here involved,

not deemed enough to effectuate our constitutional suprem-

acy of civilian over military authority. If we find the over-

ruling of the Board was achieved by or through a military

adviser, the action is set asi Lt. Weiss v. United States, 187

Ct. Cl. 1, 408 F. 2d 416 (1969); Proper v. Unitcd States,

supra. The court cites three other instances, before Weiss,

when we reinstated a Board decision after a Secretary had

overruled it. Hertzog v. United States, 167 Ct. Cl. 377 (1964) :

Betts v. United States, 145 Ct. Cl. 530. 172 F. Supp. 450

(1959) ; Eicks v. United States, 145 Ct. Cl. 522, 172 F. Supp.

445 (1959). In those cases, the Secretary’s decision appeared

arbitrary in face of the Board record and the facts that the

records showed; therefore, even if the Board had recom-

mended that. the Secretary do what he did. reversal of the

Secretary would very likely have been our decision. I do not

read the decisions as affording any help as to what was added

to the Secretary’s duty to take a particular action by the

fact the Board recommended he take it.

I am inclined to think the Secretary can and should

reject a Board recommendation when he observes upon

review that it is contrary to law, arbitrary and capricious,

or not supported by substantial evidence. These are our

review standards. Cooper v. United States, 203 Ct. Cl. 300

(1973). He must. however, recognize that the Board is,

within reasonable Jimits, a policy-making body. It is for the

Board, given a state of facts, to say if it is an error or in-

justice. Its discretion must be broad even if not unlimited.

The Secretary may not reverse it merely because his nose

for injustice is less sensitive ‘han the Board’s. In my view,

however. a Board decision is contrary to law if it runs up

against the declared policy of a law, i.e., its charter does not

include the power to go around overriding other laws ad lib.

See, Mayer v. United States, 201 Ct. Cl. 105, 107 [Nichols J.,

concurring] (1973).

Al3

13

The use of Selection Boards to select regular officers for

promotion (10 U.S.C. § 8297) and the retirement of those

not selected (10 U.S.C. § 8303) are basic to the performance

of the Air Force mission. It is a highly sensitive and dis-

cretionary function. We were told that the Selection Board

plaintiff complains of had to pass over 20% of the names

before it. These Boards and the way they operate are just

as much products of the Congressional will as Correction

Boards are. I do not believe either one is entitled to over-

ride the other. A Selection Board decision based on a mis-

leading and injust record cannot stand, Weiss, supra, but if

it is legally made within the Selection Board’s powers, it

is the duty of the Secretary to defend it against al! inter-

ference. The Correction Board here would have promoted

plaintiff though it had no information in its record to show

his qualifications were superior to those of others who were

passed over, and I judge that sooner or Jater, because of the

limited number of slots, someone else would not have been

promoted, if plaintiff was, which other person could, so far

as the Correction Board knew, perfectly well have had su-

perior qualifications to the plaintiff’s.

Plaintiff had able and persuasive counse] who made the

most of what appears. to me to be a weak case, weak for

reasons well analyzed by Judge Bennett. It is impossible to

find any clearcut falsity or unjust derogation of plaintiff

in the O.E.R. under attack, on careful study of it in cham-

bers. The Secretary’s analysis was essentially the same as

ours. Having made it, he had to draw the conclusion that

the Correction Board would interfere with the Selection

Board in a matter within the the latter’s exclusive jurisdic-

tion. I do not view this as a discretionary decision: it was

one it was his duty to make. Had he analyzed the facts as

the Correction Board did, his duty would have been different,

but such an analysis would have been hard to defend. The

substantial evidence rule was not available to sustain the

Board. The evidence in the record was undisputed and the

result turned on the interpretation of documents. I am not,

of course, saying that a promotion would be wltra vires for

the Correction Board under all circumstances.

Al4

14

My difference with Judge Bennett is that I see the matter

as more governed by Jaw and less governed by executive

discretion than he does.

Plaintiff clearly was an officer of great value to the Air

Force and one may hope that, even now, some way may be

discovered to make use of his services. The undermining of

the Selection procedure is, to me, just simply not the way

to go about it. It does more wrong than it rights.