Petition — Tanaka v. United States

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IN THE MICHAFL Ro)

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No. |

(b-847 4

JAMES H. TANAKA,

Petitioner,

v.

THE UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

Of Counsel CARL J, FELTH

KINJI KANAZAWA ro Oe See

KASHIWA & KANAZAWA Washington, D.C, 20007

Town Tower at Harbor Square DANIEL J. ANDERSEN

225 Queen Street

613 Woodward Building

Honolulu, Hawaii 96813

Washington, D.C, 20005

December 1976 Counsel for Petitioner

_—

THE CASILLAS PRESS, INC ~1717 K Street, N W.-Washington, 0. C.~223-1220

(i)

TABLE OF CONTENTS

Page

GSE o§ gs ee th eee hl le 2

DT 5s se cts se ee te ee we 2

QUESTIONS PRESENTED .....5 se ee ees 2

CONSTITUTIONAL PROVISION , STATUTE, AND

EXECUTIVE ORDERINVOLVED.._. . 6 ele 3

STATEMENT OF THECASE .« ..... swe 3

REASONS FOR GRANTING THE WRIT ...... , 5

This petition raises substantial and fundamentally-

important questions of Due Process under the

ee eee ee a

a a a a a ee a

Appendix A— Order of the United States Court of

Claims denying reconsideration en

Appendix B— Order of the United States Court of

Claims granting summary judgment

and dismissing petition. ....... 2@

AppendixC — _ Letter of 12 May 1975 from the

Air Force Board for the Correction

of Military Records denying applica-

tion for correction of military records. . . Sa

| Appendix D— Constitutional Provision, Statute, and

| Executive OrderInvolved . . . . . . . 68

aaa cai a

‘ (ii)

Appendix E— Petition to the United States Court of

Claims for pay and allowances and for

correction of military records

Appendix F — _ Plaintiff's Motion for Reconsideration

En Banc and a Trial on the Merit

TABLE OF AUTHORITIES

Cases:

Armstrong v. Manzo,

380 US.545 .

Boddie v, Connecticut,

401 US. 371 (1971)

Grannis v. Ordean,

234 US, 385, 394(1914) .

Greene v. McElroy,

360 US, 474 (1959)

Joint Anti-Fascist Committee v, McGrath,

341 US. 123 (1951)

Constitution, Statute, and Executive Order:

Constitution of the United States,

Amendment 5

10 USC, 1552

28 USC. 1255(1)

Executive Order No, 9981, July 26, 1948

Page

19a

(iii)

Miscellaneous:

Footnote, 83 Yale L.J, 33 at 41 (1973)

“The Justice And The Generals: The Supreme Court

And Judicial Review of Military Activities,” Military

Law Review, Volume 70, Headquarters, Department

of the Army, Fall 1975, Page 1, et seq.

Wigmore on Evidence, Volume V

(Chadbourn rev, 1974) Section 1365

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

JAMES H. TANAKA,

Petitioner,

THE UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

Petitioner prays that a writ of certiorari be issued to

review the decision of the United States Court of Claims

entered on October 1, 1976.

yo .

—

OPINIONS BELOW

There were no formally-reported opinions by the Court

of Claims, other than the ORDER of October 1, 1976,

and the ORDER with a summary opinion granting defend-

ant’s motion for summary judgment, entered on June 11,

1976. Both of these ORDERS are printed in their entirety

in APPENDIX A, infra p. la and APPENDIX B, infra pp.

2a-4a. The administrative decision of the Air Force Board

for the Correction of Military Records, identified as SAFCB

73-3209, dated May 12, 1975, which precipitated the liti-

gation in the Court of Claims, is reproduced as APPENDIX

C, infra p. Sa.

JURISDICTION

The judgment of the United States Court of Claims,

printed in Appendix A hereto, was entered on October 1,

1976. This Court has jurisdiction under 28 U.S.C. Sec.

1255(1).

QUESTIONS PRESENTED

1. Whether an Air Force member on continuous active

duty for more than twenty (20) years, with an outstand-

ing performance record, numerous awards and decorations,

is denied “due process” when he is refused an opportun-

ity to appear in person before any forum, administrative

or judicial, to challenge the accuracy of three prejudicial

and racially-biased officer effectiveness reports which de-

stroyed his 14%-year career as an officer?

2. Whether the Air Force Board for the Correction of

Military Records acted arbitrarily and capriciously by gloss-

ing over voluminous documentary evidence of record, made

3

under oath, supporting petitioner’s allegations of inaccuracy,

prejudice, vindictiveness and racial bias of the rating offi-

cer, by acting in secret and denying petitioner a hearing

on the merits?

3. Whether under the circumstances the Court below

abused its discretion in dismissing plaintiff's petition on

defendant’s motion for summary judement absent any sup-

porting affidavit and without oral argument?

CONSTITUTIONAL PROVISION, STATUTE,

AND EXECUTIVE ORDER INVOLVED

The constitutional provision, involved is the “due pro-

cess clause” of the Fifth Amendment to the Constitution.

The federal statute concerned is that portion of 10 U.S.C.

1552, pertaining to the administrative correction boards

for the armed services. The Executive Order, No. 9981,

signed by the President on July 26, 1948, as Commander-

In-Chief of the Armed Forces, assures equality of treatment

and opportunity for members of the armed services with-

out regard to race, color, religion or national origin. The

applicable portion of the Fifth Amendment, and the stat-

ute and the Executive Order are reproduced in the Appendix.

STATEMENT OF THE CASE

The jurisdiction of the Court of Claims was invoked be-

cause petitioner had exhausted his administrative remedies

through the Air Force Board for the Correction of Military

Records without redress.

This is an action by an active-duty enlisted man to re-

view the dismissal, in the court below, of his petition to

be permitted to present under oath the available evidence

4

to establish the error and injustice visited upon him by

the prejudicial and racially-biased effectiveness reports by

a military rating officer.

The Correction Board, relying on three unsworn, rou-

tine-form effectiveness reports made by raters whose mo-

tives are suspect ignores compelling documentary evidence

to the contrary, all of which is under oath, from respected,

senior military officers in a position to know the facts in

dispute.

Further, these effectiveness reports, in addition to being

inaccurate and unjust, are misleading in at least two addi-

tional respects. First, they directly contradict the oral as-

surances made repeatedly by the rater to the petitioner

that he “was doing an outstanding job” (App. E, pp. lla

and 12a). Second, while these reports purport to compli-

ment the officer in narrative form, they actually foreclose

any promotional consideration with a “low” numerical

score, the controlling rating factor.

To further prejudice petitioner, he wags not in a position

to learn of this deception and unfairness in rating until con-

siderably “‘after the fact,” since being overseas, he had no

access to the reports.!

Despite repeated efforts and voluminous documentary

evidence, made under oath, and requests for a personal

hearing before the AFBCMR during the last five years,

petitioner has been unable to have anyone, anywhere, any-

place examine in an open forum, the merits of the issue

in dispute. The Correction Board, ignoring requests for

! The practice now permits officers stationed overseas and un-

able to visit AF Hqs. in person to review their records, to purchase

copies of all such ratings.

J

a personal hearing where he could be heard along with

senior Air Force officers familiar with the facts and ap-

pearing at their own expense, dismissed the application

with only a routine letter. The court below, in granting

defendant’s motion for summary judgment, absent even

one supporting affidavit and without oral argument by

counsel, exacerbates the injustice and denies petitioner

due process and leaves him totally without remedy ex-

cept to this Court.

REASONS FOR GRANTING THE WRIT

4

This petition raises substantial and fundamentally-

important questions of Due Process under the Con-

stitution.

1. It has a far-reaching impact on a broad segment of

society. The Veterans Administration currently reports

there are 29.5 million veterans of the Armed Services.

While it is impossible to state with accuracy the precise

number of present and former service members who are

or have been the victims of arbitrary and capricious ad-

ministrative action by intemperate, hostile and prejudiced

military or naval superiors, where the individual’s property

rights, entitlement to benefits, disability ratings, retirements,

etc., have been adversely affected, their number is signifi-

cant. It could literally affect thousands of service mem-

bers who are faced with the futility of seeking administra-

tive redress.

2. The administrative procedures available to present

and former service members through the military correction

6 7

boards,? while lauded by the services, are unrecessarily cept of due process. In Joint Anti-Fascist Committee vy.

frustrating, and where meaningful redress is sought, dis- McGrath, 341 U.S. 123 (1951), in a concurring opinion

appointingly rare? by the late Justice Frankfurter, at Page 168, the follow-

3. The federal courts, including the court below, have ———

lacked uniformity, and as far as can be determined, this “Congress has often entrusted, as it may, protec-

Court has not directly considered the issues presented by tion of interests which it has created to admin-

this case.*

istrative agencies rather than to the courts. But

rarely has it authorized such agencies to act with-

out those essential safeguards for fair judgment

which in the course of centuries have come to

be associated with due process. (Citations omit-

4. It challenges the eloquence of this Court in deci-

sions over the years, all of which address the basic con-

2 To date, in 1976 alone, the Army advises they have received

approximately 10,000 applications for correction of records under ted) And when Congress has given an adminis-

10 U.S.C. 1552. The Navy total for the year is 5,819, as of 14 trative agency discretion .to determine its own

December. The Air Force declined to reveal the number of appli- procedure, the agency has rarely chosen to dis-

cations received. However, it can be estimated that a minimum pose of the rights of individuals without a hear-

of 20,000 service members, current or former, have applied to the g

+ ing, however informal.”

various correction boards for the three Services during 1970 alone. 6,

3 An interesting admission by the service correction boards is re- At Page 170, the opinion continues:

ported in 83 Yale L.J. 33 (1973), found at Page 41, footnote 57,

concerning reinstatement: “Reinstatement, however, is almost never

given. In the Army it is estimated that ‘less than 1% of the cases

“The heart of the matter is that democracy im-

plies respect for the elementary rights of men,

involved direct reinstatement’. . .”. “The Air Force makes the pol- however suspect or unworthy; a democratic gov-

icy more explicit: ‘Reinstatement is not generally granted except in ernment must therefore practice fairness; and

instances where the reason for discharge is invalidated and the mem- fairness can rarely be obtained by secret, one-

,

ber has only a short time until retirement.’ In considering the sided determination of facts decisive of rights.”

Navy position, the following is quoted: “The number of cases brought

before the Navy Board for Correction of Naval Records where the Continuing at Page 171:

petitioner asks for and obtains reinstatement ‘is very small.’ Again

it is a remedy generally limited to those close to retirement.” In “Man being what he is cannot safely be trusted

each case the Yale Law Journal has on file the original letters from with complete immunity from outward responsi-

the Executive Secretaries of each of the Services, dated 11, 7, and bility in depriving others of their rights, at least

10 Clay E78, canpectoay. such is the conviction underlying our Bill of

4 See: “The Justices And The Generals: The Supreme Court And Rights. That a conclusion satisfies one’s private

Judicial Review Of Military Activities”, reported in the Military Law conscience does not attest to its reliability. The

Review, Volume 70, Headquarters, Department of the Army, Fall 1975,

validity and moral authority of a conclusion largely

Page 1, ef seq.

depend on the mode by which it was reached.

Secrecy is not congenial to truth-seeking and self-

righteousness gives too slender an assurance of

rightness. No better instrument has been devised

for arriving at truth than to give a person in jeop-

ardy of serious loss notice of the case against him

and opportunity to meet it. Nor has a better way

been found for generating the feeling, so impor-

tant to a popular government that justice has

been done.”

In Greene v. McElroy, 360 U.S. 474, 496 (1959), this

Court stated:

“Certain principles have remained relatively immu-

table in our jurisprudence. One of these is that

where governmental action seriously injures an

individual, and the reasonableness of the action

depends on fact findings, the evidence used to

prove the government's case must be disclosed

to the individual so that he has an opportunity

to show that it is untrue, While this is impor-

tant in the case of documentary evidence, it is

even more important where the evidence consists

of testimony of individuals whose memory might

be faulty or who, in fact, might be perjurers or

persons motivated by malice, vindictiveness, in-

tolerance, prejudice, or jealousy. We have for-

malized these protections in the requirements of

confrontation and cross-examination. They have

ancient roots.” [Citing, Volume V, Wigmore on

Evidence (Chadbourn rev. 1974), Sec. 1365]

9

“A fundamental requirement of due process is the

opportunity to be heard, (Citing Grannis vy, Or

dean, 234 U.S, 385, 394). It is an opportunity

which must be granted at a meaningful time and

in a meaningful manner.”

In Boddie v. Connecticut, 401 U.S. 371, 378, 379 (1971),

the Court said:

“Due process does not, of course, require the de-

fendant in every civil case actually have a hear-

ing on the merits. * * * What the Constitution

does require is an opportunity * * * granted at

a meaningful time and in a meaningful manner

(citing Armstrong v. Mahzo, supra) * * * for a

hearing appropriate to the nature of the case.

The formality and procedural requisites for a

hearing can vary, depending upon the importance

of the interests involved and the nature of the

subsequent proceedings. That the hearing re-

quired by due process is subject to waiver and is

not fixed in form does not affect its root require-

ment that an individual be given an opportunity

for a hearing before he is deprived of any signif-

icant property interest except for extraordinary

situations where some valid governmental interest

is at stake that justifies postponing the hearing

until after the event.” .

“In short, within the limits of practicality, a state

must afford to all individuals a meaningful op-

portunity to be heard if it is to fulfill the prem-

ise of the due process clause.”

In Armstrong v. Manzo, 380 U.S. 545, 552 (1965), in

an opinion by Justice Stewart, speaking for the Court,

stated:

While none of the above-cited opinions of this Court is

represented to be substantially similar to the facts consid-

10

ered or the decision rendered, the expressed principles of

due process present the Court with an opportunity to ad-

dress a problem of significant and increasing concern to

a major segment of our society, many with military or

naval services’ grievances.

The instant petition clearly illustrates the injustice ex-

isting in the present interpretation of “due process’’ by

the military correction boards whose indifference to the

rights of the individual service member threatens to de-

stroy the fabric of a democratic society.

The oft-cited caveat that “somehow military expertise

is singularly reserved to military officers and officials,”

does a disservice to a major share of our citizenry (many

of whom have answered their Country’s call in time of

need) and who are equally capable of determining what

is and what is not “due process” under our Constitution

and system of law. Such “military expertise’ can easily

become a screen to shield the administrative and bureau-

cratic abuses inherent in a system allowed to become a

power to themselves.

What is urged by this petitioner, speaking for himself

and countless others, is a definitive ruling by this Court

as to precisely what “due process” is as it applies to the

Armed Forces.

5. The petition places in sharp focus the abuse by

military rating officers (who avoid confronting the peti-

tioner and testifying under oath) by denying a minority-

member of the Armed Forces the rights guaranteed by

Executive Order No. 9981.

Finally, it establishes that judicial review by this Court

is imperative to insure that the principles common to our

traditional heritage, as set forth in the Constitution, fed-

eral statute and case law remains inviolate.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this petition for certiorari should be granted.

Respectfully submitted,

CARL J, FELTH

P.O. Box 32421

Y Guna Washington, D.C. 20007

KINJI KANAZAWA P

KASHIWA & KANAZAWA DANIEL J, ANDERSEN

Town Tower at Harbor Square 613 Woodward suilding

225 Queen Street Washington, D.C. 20005

Honolulu, Hawaii 96813 Counsel for Petitioner

December 1976

APPENDIX A

IN THE

UNITED STATES COURT OF CLAIMS

JAMES H. TANAKA

v. No. 330-75

THE UNITED STATES

Before DAVIS, Judge, Presiding, NICHOLS and KUNZIG,

Judges.

,

ORDER

This case comes before the court on plaintiff's motion,

filed June 25, 1976, pursuant to Rules 7(d) and 151(b),

for reconsideration en banc and a trial on the merits.

Upon consideration thereof, together with the response

in opposition thereto, without oral argument, by the six

active Judges of the court (Judge Kashiwa not participat-

ing in this case) as to the suggestion for reconsideration

en banc under Rule 7(d), which suggestion is denied, and

further having been so considered by the panel listed above

as to the motion for reconsideration and a trial on the

merits under Rule 151(b).

IT IS ORDERED that plaintiff's said motion, filed June

25, 1976, be and the same is denied.

BY THE COURT

/s/ Oscar H. Davis

Oscar H. Davis

October 1, 1976 Judge, Presiding

2a

APPENDIX B

IN THE

UNITED STATES COURT OF CLAIMS

JAMES H. TANAKA

v. No. 330-75

THE UNITED STATES

Carl J. Felth, attorney of record for plaintiff. Kinji

Kanazawa, of counsel.

Stephen G. Anderson, with whom was Assistant Attor-

ney General Rex E. Lee, for defendant.

Before DAVIS, Judge, Presiding, NICHOLS and KUNZIG,

Judges.

ORDER

In this military pay case, before us on defendant's mo-

tion for summary judgment, the controlling issue is whether

the Board for Correction of Military Records (BCMR) was

arbitrary and capricious in not correcting the record of the

plaintiff. He was an Air Force Captain who was twice

passed over for promotion by Selection Boards and was

thereafter removed from active service under 10 U.S.C.

Sec. 8303. Plaintiff says that three OER’s should have

been removed from his file as they were erroneous and

unfair, whereupon the passovers should have been voided.

He submitted two mitigating letters asserting that in ret-

3a

rospect the writers, who had been rating officers, had

rated plaintiff too low. They did not, however, point

out any misstatements of fact in their original OER’s

only opinions they no longer entertained. The OER’s

were not harshly critical, but just rated plaintiff lower

on some factors than he needed for selection at the

time the Selection Boards met. An Officer Personnel

Review Board had refused to add these letters to plain-

tiffs file or remove the challenged OER’s. The BCMR,

thrice applied to, found no evidence of error or injus-

tice in the case.

The reasons are obvious and need not be stated, that

might cause a careful finder of fact to attach more weight

to an original OER than to a subsequent attempt by its

writer to modify it as to matters of opinion only. It is

not for us to substitute our judgment for that of the mil-

itary, in evaluating this kind of evidence.

Ratings and promotions are discretionary matters. We

must not interfere with the internal affairs of the mili-

tary unless there is a showing of clear error, abuse of dis-

cretion, or arbitrary and capricious action. Boyd v, United

States, 207 Ct. Cl. 1 (1975); Dorl v. United States, 200

Ct. Cl. 626, cert. denied, 414 U.S. 1032 (1973). By this

standard, the matters the plaintiff complains about fail to

tender a triable issue of fact.

Defendant’s motion also asserts laches, but the above

conclusions make it unnecessary to address that issue.

Accordingly, on defendant’s motion, and on considera-

tion of the record and briefs of counsel, but without oral

argument, it is ORDERED, that the defendant’s motion

4a

for summary judgment is granted and the petition is dis-

missed.

BY THE COURT

/s/ Oscar H. Davis

Oscar H. Davis

June 11, 1976 Judge, Presiding

Sa

APPENDIX C

SAFCB 73-3209 12 May 1975

Dear Sergeant Tanaka:

Reference is made to your request for correction of your

military records under the provisions of Section 1552, Title

10, United States Code (70A Stat. 116).

The administrative regulations and procedures established

by the Secretary of the Air Force for the guidance of the

Board provides that an application may be denied where

the applicant has not submitted sufficient evidence to es-

tablish a showing of probable error or injustice in the case.

I regret to advise you that a careful consideration by the

Board of your military records, together with such facts

as have been presented by you, fails to establish a showing

of probable error or injustice in your case. However, you

are privileged to submit new and material evidence for the

consideration of the Board. In the absence of such addi-

tional evidence tending to show the commission of an error

or injustice, no further action on your application is con-

templated.

BY DIRECTION OF THE CHAIRMAN:

M. T. MARTIN

Executive Secretary

Air Force Board for the

Correction of Military Records

SSgt James H. Tanaka, FR183-26-1691

Box 26784

APO San Francisco 96230

cc: Carl J. Felth, Esq.

810 18th Street, N.W., Suite 805

Washington, D.C. 20006

6a

APPENDIX D

CONSTITUTIONAL PROVISION INVOLVED

Amendment V

“No person shall * * * be deprived of life, liberty,

Or property, without due process of law * * *.”

* *~ *

STATUTE AND EXECUTIVE ORDER INVOLVED

Title 10, U.S.C. § 1552(a)

* * *

§ 1552. Correction of military records: claims inci-

dent thereto.

(a) The Secretary of a military department, under

procedures established by him and approved by the

Secretary of Defense, and acting through boards of

civilians of the executive part of that military de-

partment, may correct any military record of that

department when he considers it necessary to cor-

rect an error Or remove an injustice. Under proce-

dures prescribed by him, the Secretary of the Treas-

ury may in the same manner correct any military

record of the Coast Guard. Except when procured

by fraud, a correction under this section is final

and conclusive on all officers of the United States.

Amendments

1960 — Subsec. (f). Pub. L. 86-533 repealed

subsec. (f) which required reports to the Congress

every six months with respect to claims paid un-

der this section.

7a

Title 3 — The President

EXECUTIVE ORDER 9981

ESTABLISHING THE PRESIDENT’S COMMITTEE ON EQUAL-

ITY OF TREATMENT AND OPPORTUNITY IN THE ARMED

SERVICES

WHEREAS it is essential that there be main-

tained in the armed services of the United States

the highest standards of democrary, with equality

of treatment and opportunity for all those who

serve in our country’s defense:

NOW, THEREFORE, by virtue of the author-

ity vested in me as President of the United States,

by the Constitution and the statutes of the United

States, and as Commander in Chief of the armed

services, it is hereby ordered as follows:

1. It is hereby declared to be the policy of

the President that there shall be equality of treat-

ment and opportunity for all persons in the armed

services without regard to race, color, religion or

national origin. This policy shall be put into ef-

fect as rapidly as possible, having due regard to

the time required to effectuate any necessary

changes without impairing efficiency or morale.

2. There shall be created in the National Mil-

itary Establishment an advisory committee to be

known as the President’s Committee on Equality

of Treatment and Opportunity in the Armed

Services, which shall be composed of seven mem-

bers to be designated by the President.

3. The Committee is authorized on behalf of

the President to examine into the rules, procedures

8a

and practices of the armed services in order to

determine in what respect such rules, procedures

and practices may be altered or improved with a

view to carrying out the policy of this order.

The Committee shall confer and advise with the

Secretary of Defense, the Secretary of the Army,

the Secretary of the Navy, and the Secretary of

the Air Force, and shall make such recommenda-

tions to the President and to said Secretaries as

in the judgment of the Committee will effectu-

ate the policy hereof.

4. All executive departments and agencies of

the Federal Government are authorized and di-

rected to cooperate with the Committee in its

work, and to furnish the Committee such infor-

mation or the services of such persons as the

Committee may require in the performance of

its duties.

5. When requested by the Committee to do

sO, persons in the armed services or in any of

the executive departments and agencies of the

Federal Government shall testify before the Com-

mittee and shall make available for the use of

the Committee such documents and other infor-

mation as the Committee may require.

6. The Committee shall continue to exist un-

til such time as the President shall terminate its

existence by Executive order.

HARRY S. TRUMAN

THE WHITE HOUSE

July 26, 1948.

* * *

9a

APPENDIX E

IN THE

UNITED STATES COURT OF CLAIMS

JAMES H. TANAKA, )

Plaintiff, )

v. ) No. 330-75

)

THE UNITED STATES, )

Defendant. '

PETITION

TO THE HONORABLE,

THE UNITED STATES COURT OF CLAIMS:

THE PETITIONER ALLEGES:

1. The jurisdiction of the Court in this case is based on

28 U.S.C. 1491.

2. That he is a citizen of the United States and a resi-

dent of the State of Illinois.

3. That this is a claim for pay and allowances as an of-

ficer on active duty in the United States Air Force from

30 March 1971 to current date.

4. That he is an American of Japanese ancestry, born

in San Luis Obispo, California on 20 December 1933, who

until the age of eight years lived with his family, father,

mother, one brother and two sisters, on a farm in Califor-

nia.

5. That early in 1942, he along with his recently-widowed

mother, brother and two sisters, were interned under Ex-

10a

ecutive Order 9066 at the Santa Anita Racetrack in Cal-

ifornia, where they lived in stables until more permanent

facilities were constructed at Rhower, Arkansas.

6. That the family’s personal property was confiscated

and for four years, he, along with his family, lived a mar-

ginal existence behind barbed wire fencing, under search

lights and a 24 hour guard surveillance until released from

internment camp at the end of World War II, following

which the family moved to Philadelphia for a new start

in life.

7. That he attended public school, graduated No. | and

was president of his class in junior high school, graduated

with honors from the leading high school in Philadelphia,

winning a full four years’ scholarship to the Florida State

University.

8. That he actively participated in the Air Force ROTC

program all four years in college, winning a Second Lieu-

tenant’s commission on graduation in 1955. He received

his Masters’ degree in Education and at the time he was

called to active duty in late 1956 he was doing graduate

work toward his Doctorate degree at Florida State Univer-

sity.

9. That ordered to active duty as a Second Lieutenant

in the Air Force Reserve on 26 September 1956, he served

continuously as an officer, being promoted through to the

grade of Captain at the time he resigned his regular Air

Force commission effective 30 March 1971.

10. That on 6 October 1970, he was formally notified

that since he had twice been considered and not recom-

mended for promotion to the permanent grade of Major,

his removal from the active list was mandatory under the

law, not later than 31 March 1971.

11. That considering the options available to him he,

on 10 November 1970, elected to tender his resignation

of his regular Air Force commission and enlist in the Reg-

ular Air Force in the grade of Sergeant (E-4), foregoing

the opportunity to collect severance pay in the amount

of $15,000.00, to seek administrative redress. Promoted

to Staff Sergeant (E-5) and selected for promotion to

Technical Sergeant (E-6), reflects exceptional promotion

progress.

12. That at issue is the validity, justice and fairness

of three (3) officer effectiveness reports, rendered over a

two-year period by two officers who mislead him and un-

justly rated him thereby direetly causing his removal from

the active list for failure of promotion with his peers.

13. That at the time these three (3) questioned effec-

tiveness reports were rendered, i.e., April 1964 through

June 1966, being stationed overseas and without oppor-

tunity to personally review his performance ratings, he

had no possible way to learn of their prejudicial effect

on his career as a regular Air Force officer until well after

the fact at which time it was too late to undo the dam-

age to his chances for promotion.

14. That in lieu of personally reviewing these three (3)

reports, he relied on the verbal assurances of his then two

rating officers that he was performing his duties in an “out-

standing” manner.

15. That these three (3) challenged effectiveness reports

cover a period during which plaintiff was serving as a Train-

ing Advisor to the Japanese Air Self Defense Force (JASDF)

in the Military Assistance Advisory Group — Japan, an as-

signment for which he was uniquely qualified. He had been

specifically selected by name for this assignment; he had just

12a

concluded a successful four-year teaching career training an

elite group of young cadets and future regular officers at the

Air Force Academy so that training young Japanese officers

to assume positions of leadership in the JASDF was neither

strange nor foreign to his experience capability; he had grad-

uated from the Military Assistance Institute in Washington,

a State Department sponsored training course; he was fluent

in the Japanese language; and he had previously served a

tour in Japan which had been cut short to permit him to

be individually-recruited for assignment as a faculty member

of the prestigious first group of staff selected for the new

Air Force Academy at Colorado Springs.

16. That following a significantly successful four-year

tour as a staff and faculty member at the Air Force Acad-

emy he was promoted to Captain. He was twice offered

an unsolicited tender of a Regular Air Force Commission

(accepted in 1963), and was individually invited by the

Superintendent to extend his tour at the Academy for an

additional two years. Here he had earned an “Exception-

ally Fine” effectiveness rating personally endorsed by the

Academy Superintendent (translated to a numerical rating

of “8’’), and was awarded the Air Force Commendation

Medal for conspicuously meritorious service for the period

from May 1960 to May 1964. Arriving at his new sta-

tion at MAAG-Japan in mid-1964, he was a dedicated and

highly motivated officer eager to continue his chosen pro-

fessional career.

17. That during his two (2) years as a training advisor

under the Chief, Plans and Training Division, a long-time

in-grade, discontented Lieutenant Colonel who openly rid-

iculed the Japanese people and detested his assignment to

Japan, plaintiff was the unfortunate victim of a subtle form

of racial discrimination practiced by an unscrupulous and

13a

unprincipled senior, working through a subordinate. This

prejudiced plaintiffs chances for promotion and terminated

his professional military career as an officer in the Regular

Air Force.

18. That the Chief, Plans and Training Division, was

in a unique position to unduly influence plaintiff's rating

since, in addition to officially endorsing plaintiff's rating,

he personally rated the senior training advisor who in turn

rated plaintiff. As both were Lieutenant Colonels in con-

tention for promotion to full Colonel, the Chief's influence

was considerable.

19. That plaintiff as a Captain and his rating official

as a Lieutenant Colonel workéd together in a small, closely-

knit duty section under the immediate supervision of the

Chief, Plans and Training Division. Both were classified

as training advisors. Both performed the identical duties

with the major share of these duties being performed by

the plaintiff and for which the Lieutenant Colonel claimed

credit by intercepting written as well as verbal commenda-

tions by senior JASDF officers expressing their appreciation

to plaintiff for his outstanding contribution to the success

of the training mission working directly with the JASDF.

20. That plaintiff's obviously highly-successful accom-

plishment of duties on behalf of the training section and

his rapport with senior American staff officers at MAAG-

Japan, as well as the JASDF officers of General rank, all

of whom were impressed with plaintiff's outstanding per-

formance of duty, was resented by the senior training ad-

visor manifesting itself in a number of incidents reflecting

his personal pique and adversely affecting plaintiff's effec-

tiveness ratings.

21. That plaintiff's rating official on his first two (2)

questioned effectiveness reports, working under the direc-

14a

tion and guidance of the Chief, Plans and Training Divi-

sion, unjustly and unfairly rated plaintiff so as to preclude

any chance for promotion, an admission officially confirmed

in letters dated 27 December 1968 and 17 March 1969,

setting forth in specific detail what the true and correct

ratings should have been. The rater by this time had been

promoted to the rank of full Colonel and was out from

under the direct influence of the former Chief, Plans and

Training Division.

22. That following the senior training advisor’s promo-

tion to full Colonel over the rank of the Chief, Plans and

Training Division, and his transfer to a stateside position

commensurate with his new rank, plaintiff was advanced

to the duty of Senior Training Advisor with sole respon-

sibility for the duties he had previously shared with the

Lieutenant Colonel. Again, plaintiff was verbally assured

by the Chief that he was doing an “outstanding” job.

Plaintiff had no reason to believe otherwise.

23. That after a year’s conspicuous performance of

duty as the Senior Training Advisor, plaintiff was unani-

mously recommended by the senior Air Force staff offi-

cers at MAAG-Japan to the new Chief of the Mission,

and Air Force General officer, as the outstanding candi-

date for appointment to the General’s personal staff.

Based on that recommendation by the senior Air Force

staff, plaintiff was unquestioningly selected by the new

head of the Mission, a selection the General never had

occasion to regret. Plaintiff served in this position for

two (2) years earning successively-outstanding ratings,

rated and endorsed by General officers.

24. That plaintiffs third questioned rating, i.e., for

the period from 19 July 1965 through 30 June 1966,

from the Chief, Plans and Training Division, is neither

1Sa

consistent with the Chief's repeated verbal assurances to

plaintiff that “he was doing an outstanding job,” nor with

the unanimous recommendation of the senior Air Force

staff officers at MAAG-Japan made to the new Chief, an

Air Force General officer. Obviously, the Chief of the

Plans and Training Division (and plaintiff's rating official

on the third questioned report) was included in the unani-

mous recommendation by the senior Air Force staff made

to the new Chief of the Mission, as to the “outstanding”

qualifications of plaintiff.

25. That considering his highly successful career from

1960 to 1964 at the Air Force Academy and his outstand-

ing record from | July 1966 through to resignation on 30

March 1971, his three (3) questioned ratings over a two-

year period from mid-1964 to 30 June 1966, are totally

out of character with plaintiff's temperament and perform-

ance of duty pattern in the military service dating back to

his original commission in the Air Force ROTC in 1955.

26. That beginning with his new assignment as the Aide-

de-Camp to the Chief of the Mission at MAAG-Japan on

1 July 1966, he earned two (2) consecutive “outstanding”

effectiveness reports, both rated and endorsed by General

officers. This began an unbroken series of “outstanding”’

ratings which continued uninterrupted through his remain-

ing career as an Air Force officer for a total of seven (7)

consecutive “9's,” the highest rating obtainable. His per-

formance record as an enlisted man from early summer of

1971 through to present date, is equally impressive. De-

spite the emotional trauma of losing his regular commis-

sion, being reduced to serving the Air Force as an enlisted

man and meeting many of his former students from the

Air Academy who are now Majors and Lieutenant Colonels

(and where he himself served as an outstanding young of-

l6a

ficer), has only strengthened his resolve to correct this in-

justice visited upon him by the Air Force. Irrespective of

specific assignment, flying, training or teaching, his perform-

ance of duty has continued to be spectacular. His ratings

from superiors, personally endorsed by senior officers, are

phenomenal. His enlisted duties have required mastering

new air-crew skills with extensive flight-operational missions

through the combat area of Southeast Asia, and have re-

flected the same dedicated devotion to duty evident through-

out his entire 19 years of continuous active duty. His

awards and decorations are strikingly persuasive. His vol-

untary off-duty participation in civic, educational and morale-

building activities, both as an officer and as an enlisted

man, has materially contributed to advancing a favorable

Air Force image in the civilian and military communities.

27. That, but for the three (3) questioned effectiveness

reports, plaintiff as a Regular Air Force Captain with a dem-

onstrated record of performance of duty would have been

promoted along with his contemporaries to permanent Major

on his first-time consideration with the August 1968 list of

successful selectees.

28. That the Air Force Board for the Correction of Mil-

itary Records has thrice acted arbitrarily and capriciously in

the premises to the prejudice of the plaintiff by denying him

redress and/or a personal hearing with the opportunity to

present a number of respected active duty and retired Air

Force officers familiar with the facts to be provided at his

own expense; ignored the voluminous documentary evidence

submitted, including the letters of the rating official on the’

first two (2) questioned effectiveness reports wherein he of-

ficially admitted his errors; and superficially invited recon-

sideration with new and further evidence.

17a

29. That absent the power of subpoena and discovery

procedures permitted by this Court under the rules of evi-

dence in formal litigation, plaintiff has no available means

to respond to the invitation from the Air Force “to sub-

mit new and material evidence for the consideration of the

Board.””

30. That plaintiff has exhausted his administrative rem-

edies and that no action on this claim, other than as stated

herein, has been taken before Congress or any of the De-

partments of the United States, or in any court other than

the petition filed in this Court.

31. That plaintiff is the sole and absolute owner of this

claim herewith presented, and that he has not made any

transfer of said claim or any part thereof.

WHEREFORE, plaintiff respectfully prays:

(1) That he be awarded a money judgment in an amount

of $45,000.00 more or less.

(2) That his official military records be corrected to re-

flect the following:

a. That his resignation of 10 November 1970, effec-

tive 30 March 1971, be withdrawn, voided and made of no

effect.

b. That his regular Air Force commission be reinstated

and made continuously effective from the first date of orig-

inal acceptance.

c. That the three (3) questioned Officer Effective-

ness Reports covering the period of his assignment as a

Training Advisor at MAAG-Japan, from April 1964 through

30 June 1966, be declared nuil and void and removed

plaintiff's selection folder and official file.

18a

d. That the Air Force be directed to reconsider plain-

tiffs original promotion selection to permanent Major retro-

actively with the three (3) questioned Officer Effectiveness

Reports withdrawn from his selection folder, thereby permit-

ting favorable first-time consideration along with his original

contemporaries by the Summer 1968 Promotion Selection

Board.

e. For such other and further relief as may be ap-

propriate.

Of Counsel: Respectfully submitted,

KINJI KANAZAWA /s/ Carl J. Felth

Suite 302 CARL J. FELTH

Town Tower at Harbor Square 810 — 18th Street, N.W.

225 Queen Street Suite 805

Honolulu, Hawaii 96813 Washington, D.C. 20006

Telephone: (202) 638-2237

Attorney of Record

19a

APPENDIX F

IN THE

UNITED STATES COURT OF CLAIMS

RECEIVED

JAMES H. TANAKA, ) June 25, 1976

Plaintiff, ) OFFICE OF THE CLERK

) US. COURT OF CLAIMS

v. ) No. 330-75

)

)

THE UNITED STATES, )

Defendant: .

PLAINTIFF’S MOTION FOR

RECONSIDERATION EN BANC

AND A TRIAL ON THE MERIT

Plaintiff respectfully moves the Court for a hearing en

banc to set aside the Order entered herein on the 11th

day of June 1976, and to grant a full trial on the merits

on the grounds that:

(1) The judgment of the Court appears to have miscon-

strued, misinterpreted and failed to consider relevant, ma-

terial evidence of record, made under oath, from respected,

senior military officers, including a number of officers of

General Officer rank, contained in the voluminous admin-

istrative record of proceedings submitted by the defendant.

(2) The judgment is wrong and represents a gross miscar-

riage of justice in that it denies plaintiff his Constitutional

right of “due process.”

20a

(3) The Court erred in accepting at face value the self-

serving administrative determination of the Air Force which

is not supported by the available evidence.

ARGUMENT

Point I

The Court was mislead.

It must be concluded that the Court’s judgment was

predicated on the self-serving, routine, form documents,

none of which are under oath, which are shown in the

Appendix to Defendant’s Motion For Summary Judgment

(Appendix A through O). This is not a true factual pic-

ture of the available evidence. It is not even a minimum

sampling of the “more than 200 pages of plaintiff's record

submitted by defendant in support of his motion for sum-

mary judgment.”!

On this premise, plaintiff's case was determined adversely

without consideration being given to a 69 page brief of

counsel, supported by an appendix of 44 documents, num-

bering 95 pages, over half of which are in the form of

sworn affidavits and/or certified statements of senior mili-

tary officers.

Referring to the Court’s Order, specifically Page 2, line

2, et seq., the “two mitigating letters”, presumably Appen-

dix I and O of Defendant’s Motion for Summary Judgment

| In Defendant’s Motion For Leave To File The Administrative

Record And Waiver Of Reproduction Thereof, he argues, apparently

convincingly, “In view of the large number of pages in plaintiff's

record (more than 200) it is requested, in the interest of economy

of resources, that reproduction of said record be waived.”

2la

(neither of which is in affidavit form) are to be read in

conjunction with the Indorsing Officer’s affidavit of 14

September 1972 (Atch #5 to Plaintiff's Brief to the Board

of September 1974) and Atchs. #42, 43, and 44 of the

same brief. [See Atch #5, added]

Point Il

The Plaintiff was mislead.

Defendant, presumably aware of the outstanding record

of the petitioner and his conspicuously successful perform-

ance of duty before, during and after the 1964-1966 period

of the three challenged ratings, supported by more than

thirty (30) affidavits and certified statements from respected,

senior military officers and officials familiar with the facts

in dispute, wisely elected to direct the principal thrust of

his motion for summary judgment to the technical defense

of laches.

In similar vein, plaintiff's response was primarily addressed

to challenging the applicability of the technical defense of

laches, relying on the Court to examine the sworn evidence

of record and an opportunity at oral argument to stress the

overwhelming testimony to directly contradict the questioned

ratings.”

In the instant case the issue in question is the “validity,

justice and fairness of three (3) officer effectiveness reports,

rendered over a two-year period by two officers who mis-

lead him and unjustly rated him thereby directly causing

his removal from the active list for failure of promotion

with his peers.’

2 See affidavit of counsel added as Exhibit “B”.

3 See Pages 2 & 3 of Plaintiff's Response to Defendant’s Motion

for Summary Judgment. See also Plaintiff's Exhibit C, added.

22a

As this Court held in the case of Yee v. United States,

206 Ct. Cl. 388, 512 F.2d 1393 (1975):

“Military correction boards ‘have an abiding moral

sanction to determine, insofar as possible, the true

nature of an alleged injustice and to take steps to

grant thorough and fitting relief ”’.

It is this protection plaintiff is urgently seeking of the Court

to avoid a gross miscarriage of justice to a deserving Air

Force member with an outstanding record of extended serv-

ice in Southeast Asia during the war.

Point III

The Judgment is not supported by the evidence.

The documents from the administrative record, relied

upon by the defendant (Appendix A through O), give mute

evidence of any regard for:

“

.

. . an abiding moral sanction to determine,

insofar as possible, the true nature of an al-

leged injustice and to take steps to grant thor-

ough and fitting relief.’

Out of an administrative record of “more than 200 pages

submitted by the defendant, he selected 30 pages, only one

of which (Appendix G) was dated after plaintiff's 69 page

brief and 95 pages of exhibits were submitted to the cor-

rection board on 20 September 1974.

Defendant’s Appendix A, dated 1/4 August 1973, is a

“position paper” prepared by military personnel at the

4 Yee v. United States, supra.

23a

Military Personnel Center, Randolph AFB, Texas,> long

before petitioner’s case was painstakingly prepared and

submitted to the correction board on 20 September 1974.

Defendant’s Appendix I and O, discussed above,® should

be considered in the light of the sworn affidavits of the

principals involved contained in the 95 pages of documen-

tary evidence submitted to the board on 20 September 1974.

As to Appendix O, see Plaintiff's Exhibit A added.

Defendant’s Appendix J, K, and L are the questioned

ratings challenged as prejudicially unjust, unfair and con-

trary to the verbal assurances given petitioner by the rat-

ers.

¢

The remaining documents in defendant’s Appendix ap-

pear to be routinely prepared and demonstrate little, if

any, consideration by the board.

Point IV

Plaintiff has routinely been denied “due process”.

At no stage has plaintiff been afforded the dignity and

satisfaction of knowing his complaint of injustice has been

objectively considered on its merits. The “naked” admin-

5 “Position Paper” is counsel’s term for the recommendation of

the Military Personnel Center, prepared by military staff personnel

from official military records on file, following submission of DD

Form 149. Experience shows this recommendation generally is

adopted by the board.

6 See affidavit of Colonel Ellis, dated 14 September 1972, Ex-

hibit A.

24a

istrative denials of redress are considerably less than reas-

suring.’

As this Court most recently re-stated in Craft v. United

States, No. 96-74, decided on June 16, 1976:

“A naked conclusion and mere recitation that the

opinion is based upon all of the evidence without

an analysis of the evidence in writing * * * is in-

imical to a rational system of administrative de-

termination and ultimately inadequate. * * *. In

these circumstances [summary and sketchy find-

ings and reasoning by the administrative Board]

we cannot give as much deference to the Board’s

determination as if it had given detailed finding,

to support, (sic) and fuller explanations of the

reason for, its conclusion.”’ [Citations omitted]

“In a particularly egregious situation, the court

may be compelled to conduct its own inquiry

in order to find record support for the admin-

istrative decision. As stated in Smith, supra:

‘* * * a disposition of the claim * * * by the

* * * Board without a hearing and without an

analysis of the evidence in writing is inadequate

assurance that due weight was given to all of

evidence. * * * [Citation omitted]’ * * *

7 Analyzing the timing of the spring °71 administrative review

actions, prior to plaintiff's separation on 30 March 1971, reflects

a period of accelerated “RIF’s” to meet reduced officer strengths,

with the accompanying increase in relief applications. This seriously

compromises any meaningful consideration of individual cases. Under

these circumstances, three of Pl’s. requests were routinely rejected

in a matter of weeks. Once an administrative decision has been

determined adversely, it is extremely difficult to undo the damage.

25a

“Faced with an administrative decision adverse to

him, a soldier needs to be sufficiently informed

of the basic grounds of that adverse decision in

order adequately to appeal.”

It is precisely this situation in which the plaintiff finds

himself. No one will hear him in person nor any of the

number of witnesses who have offered to testify in his be-

half at their own expense.

What the plaintiff is urgently asking is for someone,

somewhere, some place, to provide him the opportunity

to be heard in his own behalf to insure that his petition

for relief from a grievous wrong is examined in a fair and

impartial forum. ‘

As an officer and an airman with nearly twenty (20)

years of continuous and dedicated service with no taint

of anything less than top performance of duty, including

numerous awards and decorations, he has earned that right.

CONCLUSION

For the foregoing reasons, as well as all matters of rec-

ord herein, plaintiff respectfully prays the Court to grant

his motion for reconsideration; an en banc hearing; and a

full trial on the merits.

June 24, 1976 Respectfully submitted,

Of Counsel: /s/ Carl J. Felth

KINJI KANAZAWA CARL J. FELTH

Suite 302 Suite 805

Town Tower at Harbor Square 810 — 18th Street, N.W.

225 Queen Street Washington, D.C. 20006

Honolulu, Hawaii 96813 Telephone: (202) 638-2237

Attorney of Record

26a

ATTACHMENT NO. 5

AFFIDAVIT

STATE OF ALABAMA )

) ss:

COUNTY OF MONTGOMERY )

On this 14th day of September 1972, before me a no-

tary public, personally appeared Frank T. Ellis, known to

me to be the person, who, after being duly sworn, deposes

and states as follows:

“On 5 July 1966, I indorsed an Officer Effectiveness Re-

port, prepared by a subordinate for Captain James H. Tan-

aka, a junior officer serving under my overall supervision in

the Air Force Section of MAAG-Japan. Unfortunately, at

that time, the organization was still large enough and I was

still new enough not to have known all of my officers as

well as I would have liked.

As I later learned, it was a serious error on my part to

have relied exclusively on the judgments of the rater in this

case. Quite frankly, my confidence was misplaced and the

comments attributed to me were not precisely accurate.

Rather the observation credited to me was an erroneous

statement, prepared for my signature, wherein I made the

mistake of accepting it at face value. In a rush to com-

plete an administrative detail within a limited time sched-

ule and in the crush of other more pressing demands for

my time and attention, I simply made a mistake.

My observations of Captain Tanaka subsequent to my

indorsement and the rating I gave to the officer who rated

Captain Tanaka have confirmed the error I made in indors-

ing Captain Tanaka’s rating for the period 19 July 1965

through 30 June 1966.

|

27a

On re-reading the original rating, it is clear to me that

Captain Tanaka was improperly rated. Based on later ob-

servations, I consider that Captain Tanaka was competent

and dedicated and the very kind of an officer the Air Force

needs.”

/s/ Frank T. Ellis

FRANK T. ELLIS

Colonel, USAF (Retired)

* * *

/s/ ™M. (illegible)

[SEAL] Notary Public

My Commission Expires: Sept. 5, 1976.

EXHIBIT B

AFFIDAVIT

District of Columbia, ss:

Now comes CARL J. FELTH, who after being duly

sworn, states:

“That he is the attorney of record in this case, working

along with KINJI KANAZAWA, Esquire, of Honolulu,

Hawaii, as co-counsel because of his interest in the mat-

ter.

“That on receipt of Defendant’s Motion For Summary

Judgment, along with a copy of Defendant’s Motion

For Leave To File The Administrative Record And For

Waiver Of Reproduction Thereof, on or about 23 March,

1976, he made a personal visit to the Office of the Clerk

28a

of Court shortly thereafter to examine the official file

jacket, No. 330-75, James H. Tanaka v. The United States,

and found it to appear to contain the administrative rec-

ord of “more than 200 pages” and was satisfied that

plaintiff's administrative record had been filed with the

Court by the defendant, and that it was available to the

Court in its entirety and could be used in oral argument

at any hearing on defendant’s motion for summary judg-

ment.

“It was only at the Judicial Conference on 21 May 1976,

that counsel first learned in comments to the conference

by the Honorable Judge Davis, of the court’s procedure

for considering one-party motions for summary judgment

in camera and without oral argument.

“Following the conference, affiant advised plaintiff that

in all fairness he could reasonably expect that entire rec-

ord, including the brief of counsel and the more than

thirty (30) affidavits and certified statements of senior

military officers and officials, listed in the Appendix to

the brief, would be available for consideration by the

Court, even though under the Rules, oral argument was

discretionary with the Court.

“Further, affiant sayeth not.”

/s/ Carl J. Felth

CARL J. FELTH

Subscribed and sworn to before me on this the 24th day

of June, 1976.

/s/ Andrea M. Pace

[SEAL] Notary Public

My Commission Expires: 3-31-80

29a

EXHIBIT C

AFFIDAVIT

STATE OF CALIFORNIA )

) ss.

COUNTY OF SOLANO _)

Now comes JAMES H. TANAKA, after being duly sworn,

who deposes and states:

Since 1968, I have tried again and again to get an Air

Force board or a court to actually hear my case. My

Air Force career was destroyed by two men who wrote

effectiveness reports which virtually guaranteed I would

never be promoted. I can prove at a full hearing that

the reports were wrong, and that they were written out

of bias and personal motives. I have never received that

hearing.

During the period when the OER’s were written, I was

repeatedly told by the officers who wrote them that I was

doing an excellent job. I was unaware of the reports’ con-

tent, but on the strength of what the two raters told me,

plus many commendation letters from outside sources of

which both they and I were aware, I assumed they were

good reports. They were in fact harshly critical despite

the misleading “word picture” which accompanied them.

The OER system was so inflated then that anything less

than an overall “8” amounted to condemnation. At the

time an officer had to physically go to Randolph AFB,

Texas, in order to review OER’s. Since the two raters,

naturally enough, did not tell me what they had done,

it was not until over three years later that I found out.

After I learned the content of these three reports, I

tried administrative means to challenge them. Out of

30a

ignorance, I did so without counsel, at first, and was

denied relief first by the OPRRB and then twice by the

BCMR, all without any personal hearing. Later applica-

tions to the BCMR and a panel of your court, with the

aid of an attorney, have been fruitless, and each of their

opinions has put heavy emphasis on these earlier negative

opinions. I feel that I am being punished because I lacked

technical understanding of these legal processes when I

first started to challenge the biased OER’s.

My effectiveness as an officer was always superior, and

in fact led to my receiving a Regular appointment in 1962.

I am not an applicant whose continuing marginal perform-

ance or indiscretions have finally demanded his removal as

an officer, but rather one whose excellent record has been

marred only once, by the bias of others. That record de-

mands more than the routine dismissals that I have so far

received. It demands the one thing I have sought for over

seven years to obt7ui — a chance to prove my claim at a

full hearing.

22 June 1976 /s/ James H. Tanaka

Date JAMES H. TANAKA

Subscribed and sworn to before me this 23rd day of

June, 1976, at Travis Air Force Base, California, by JAMES

H. TANAKA.

/s/ Marjorie C. Johnston

NOTARY PUBLIC in and

[SEAL] for sai. County and State