Petition — Meyer v. United States

Sup ne UO t. U. 5.

_ FILED

APR ¢ 977

MICHAEL KU K JR., CLERK |

—_———

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1976

No

Charles L. Meyer, Petitioner ¢ 6 | L 3 7 3

V

The United States of America

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES

Charles L. Meyer, Petitioner

355 Pinewood Lane

San Antonio, Texas 78216

Area Code §12 telephone no. 828-1913

INDEX

Opinions Below

Jurisdiction

Question Presented

Statutes involved

Statement of Case by Subjects

a. Incorrect correction board

procedures, incomplete US Court

of Claims consideration,

question of constitutionality

b Legal issues not ruled upon by

the US Court of Claims

" Incompleteness of court file

at time of court order dated

November 12, 1976

Reasons for Granting Writ

Conclusion

Appendix A US Court of Claims file

no. 182-75 order dated November

12, 19/76

Appendix B Table of Cases

Appendix ¢ Other Public Laws

Appendix DD Text Books

Appendix t Air Force Regulations

Involved

OPINIONS BELOW

The opinion of the US Court of Claims file no. 182-75 is

printed as appendix A to this petition on page 17.

JURISDICTION

The judgement of the US Court of Claims file no. 182-75

was entered on November 12, 1976. A timely petition for

rehearing was denied on January 7, 1977. The jurisdiction

of the Supreme Court is invoked under 28 U.S.C., Supreme

Court rules, Section 1255 (1).

QUESTION PRESENTED

The legal action being appealed from the US Court of

Claims was dismissed by a court order which did not rule on

two questions of constitutionality, did not rule on seven dif-

ferent legal issues, and dismissed the legal action based upon

an incomplete court file. The plaintiff questions whether

this court action is justice. The plaintiff seeks a decision

based upon all legal issues which were presented.

STATUTES INVOLVED

All public laws and Armed Service written directives are

specified in appendices to this petition.

INCORRECT CORRECTION BOARD PROCEDURES,

INCOMPLETE US COURT OF CLAIMS CONSIDERATION,

QUESTION OF CONSTITUTIONALITY.

The plaintiff submitted an application for currection of

his records to the major command Headquarters (HQ) in

accordance with Air Force Regulation (AFR) 31-11 in

October, 1969. A negative decision was announced on

April 1, 1970.

a. Two administrative errors exist in the staffing of the

above action.

(1) On February 18, 1970 the contents of AFR

31-11 were revised. The Air Force major command HQ

correction board in its negative decision refused to apply

criteria which was placed into effect by the newly re-

vised written directive.

(2) Air Force administrative procedure requires

completion of the staffing of a records correction appli-

cation at a major command HQ took over five months to

complete the staffing of this action. During this time the

plaintiff with uncorrected records was considered for pro-

motion the second time and was not selected for promo-

tion.

(a) The legal issue here is the inconsistency of

treatment in the staffing of the plaintiff's records correc-

tion. The US Air Force in later years corrected this situa-

tion by revising AFR 31-11. All records correction appli-

cations continue to be submitted through the applicant's

major command HQ. The correction board is now con-

ducted for all records correction applications at the Mili-

tary Personne! Center, Randolph AFB, Texas which is HQ

US Air Force level. All records correction applications now

receive the same treatment by this Air Force departmental

level correction board. This administrative remedy does not

correct the plaintift’s situation. The plaintiff submits that

oy “sitting” on his records correction application for over

five months this procedure is arbitrary and constitutes a

discriminatory act. Plaintiff questions this procedure as

being in violation of the fourteenth article of the US Cor.-

stitution which prohibits discriminatory acts.

The plaintiff submitted his application for correction of

his records to the Air Force Board for Correction of Re-

cords (AFBCMR) in accordance with AFR 31-3 in June,

1970. This application was denied in June, 1971.

a. The only subjective reasons for the negative decision

which the plaintiff has identified are specified below.

(1) The plaintiff attached written statements to his

records correction application from individuals who were

not his reporting official. The AFBCMR refused to accept

written statements from individuals other than the appli-

cant's reporting official. This restriction upon who can

submit written statements to support the applicant’s re-

cords correction application does not exist in AFR 31-11.

This written directive, revised on February 18, 1970, per-

mits written statements to be submitted by the applicant's

reporting official or other individuals who are knowledge-

able of the facts and circumstances. The plaintiff attached

statements from individuals who were outside of his chain

of command but who meet the criteria of the second con-

dition specified in the revised written directive.

(2) Precident exists to correct the records and im-

plement a retroactive promotion in grade for officers ser-

ving on EAD. This subject matter is presented in detail in

the plaintiff's petition filed on June 2, 1975, paragraph 11d

(2), pages 10 and 11. The AFBCMR did not want to esta-

blish a new precident for correcting the records of a non-

EAD active reservist pertaining to promotion when this pro-

cedure had never previously been done before. Plaintiff

cited the following two legal precidents for non-EAD active

reservists seeking relief in Federal courts to refute the Air

Force contention of not extending applicability of its writ-

ten directives to members of the non-EAD active reserve

component.

(a) Geller v. The Secretaries of Defense and the

Air Force, US District Court for the District of Columbia,

file no. 74-1843, filed December 18, 1974, ruling dated

July, 1976.

(b) Novak v. Captain Talbot, USN, et al., US Dis-

trict Court of Northern Illinois Eastern Division, file ne.

72C 1559, ruling dated October 19, 1972.

The legal issue here is that the US Air Force deviated

from the written directives in effect in order to deny the

plaintiff's application for correction of his records. The

plaintiff cited legal precidents which require an Armed

Service to follow its own regulations.

The US Court of Claims ruling dated November 12, 1976

States that the plaintiff did not submit cogent or clearly

convincing evidence that the AFBCMR decision was arbi-

trary or capricious. The plaintiff answers this decision as

follows:

a. Reproduced copies of the plaintiff's Officer Effec-

tiveness Reports (OERs) have been presented to the court.

b. The plaintiff has presented cited portions of the

applicable written directives in effect at the time.

c. The presiding judges were required to (i) read the

plaintiff's OERs, (ii) read the applicable written directives

for the preparation of these OERs, and (iii) ascertain whether

the plaintiff's OERs are or are not prepared in compliance

with these written directives. The plaintiff believes that such

a review will ascertain that his OERs were prepared contrary

to the written directive for their preparation. AFR 31-11

dated February 18, 1970 paragraph 5b(2)(b) requires a cor-

rection board to invalidate an applicant's OERs when the

applicant proves noncompliance with the written directive

for their preparation.

d. The US Court of Claims order dated November 12,

1976 does not indicate that an administrative review of

these documents identified in sub-paragraph d above was

made.

e. The plaintiff is unable to present more compelling

evidence that presentation of the above facts, written direc-

tives, and applicable records. A review of all of these do-

cuments is required in order to ascertain if the plaintiff's

OERs are or are not prepared in accordance with the appli-

cable written directives. If the plaintiff's OE Rs are to be in-

validated, the plaintiff is entitled to retroactive promotions

is grade, reinstatement in the US Air Force reserve to the date

of the court ruling, and compensation of pay and allowances

from August, 1971 until the date of the court ruling.

LEGAL ISSUES NOT RULED UPON

BY THE US COURT OF CLAIMS

The legal issues described below were not ruled upon by

the US Court of Claims.

a. The plaintiff's petition filed Jur - 2, 1975, page 11,

paragraph 11b, questions the lack of a hearing before the

AFBCMR as being a lack of due process. This legal issue

was clarified and presented in the plaintiff's petition filed in

August, 1976 as a violation of the due process fifth article of

the US Constitution. The US Court of Claims in its order

dated November 12, 1976 ruled only that the lack of a hear-

ing was not arbitrary; it did not rule on the question of con-

Stitutionality. Plaintiff cited O'Callahan v. Parker, 395 U.S.

258, 89 S.Ct. 1683, (1969). This cited legal precident re-

quires the US Court of Claims to rule on this question of con-

stitutionality.

(1) Alternative legal issue. The plaintiff's petition

filed in August, 1976 cites Newman v. U.S., 1968, 185 Ct.

C1. 269, which establishes a legal precident for requiring a

BCMR hearing when “the procedures of the lower boards

were so defective as to preclude reliance on their advice.”

The plaintiff should have received a hearing because of the

many procedural errors committed by his command head-

quarters correction board. The US Court of Claims did not

rule on this alternative legal issue.

b. The plaintiff's notarized affidavit dated May 13, 1975

presents the concept of an implied contract which was vio-

lated. The plaintiff received training to become a US Air

Force commissioned officer and through an administrative

error by the Air Force did not serve on EAD. The plaintiff

contends that he should have served as a commissioned offi-

cer for 20 years of EAD. The Government's attorney answered

this concept by citing precidents the essence of which is that

an officer does not have a contract to serve on EAD. The

plaintiff replied to the Government's position by citing the

several US Navy BCMR decisions pertaining to Chief Warrant

Officer Carl Buck. These US Navy BCMR decisions constitute

a military precident which providea for an examination of the

individual's service record by a responsible individual, exclud-

ing the records in question, and a favorable decision by this

responsible individual which corrects the record of the indivi-

dual for the issue in question (i.e., retroactive promotion of a

commissioned officer). The US Court of Claims did not rule

on this matter.

c. The plaintiff pursued a legal remedy in other Federal

courts. Other Federal courts dismissed the plaintiff's legal ac-

tion with a lack of jurisdiction ruling. The plaintiff's legal ac-

tion presents information that the desired corrective action ts

found in AFBCMR administrative procedures instead of in

Air Force written directives. Other Federal courts which con-

sidered the plaintiff's previous legal actions committed an ad-

ministrative error in their lack of jurisdiction rulings. The

plaintiff requested reimbursement of the court and legal cost

of his previous legal actions. The Government's attorney stated

that there is no statute under which the plaintiff can be reim-

bursed for these costs. The plaintiff presented reimbursement

of these costs as a claim of equity against the US Government.

The US Court of Claims did not rule on this matter.

d. The plaintiff filed motions under US Court of Claims

rule no. 74 to secure copies of a US Air Force and US Navy

BCMR decisions which were dated prior to the enactment of

the Federal Privacy Act and the Freedom of Information Act.

The plaintiff asked that if these Armed Services correction

board decisions were published in the Federal Register then

they were accessable as public records. The US Court of

Claims did not rule on this matter.

e. In an attempt to substantiate bias by the reporting of-

ficial towards him as a minority group member the plaintiff

in his petition filed in August, 1976 filed a motion uncer US

Court of Claims rule no. 74 to supoena the OERs of the other

officers rated by the same reporting official. The issue here

is that the plaintiff's reporting official consistently rated

non-minority group members higher than he rated the plain-

tiff who is a minority group member. The US Court of Claims

did not rule on this motion. In presenting facts for this legal

issue the plaintiff cited two precidents the essence of which

prohibit discriminatory personnel practices. The plaintiff con-

tends that his reporting official's bias towards minority group

members caused him to give the plaintiff lower ratings in his

Qe

OERs than he gave other officers on their OERs. The plaintiff

contends that this discriminatory practice is contrary to the

fourteenth article of the US constitution which prohibits dis-

criminatory acts. The US Court of Claims did not rule on this

matter.

(1) tt should be noted that the plaintiff's reporting

official has resided since the early 1960s in the municipality

of Arlington Heights, Illinois. It should be further noted that

in January, 1977 that the US Supreme Court ruled that this

municipality was not required to change its zoning laws to

permit public housing to be constructed so that minority

group members could reside in public housing in this munici-

pality.

f. The written directives for the US Air Force and the US

Army BCMR, reference, AFR 31-3 and Army Regulation 15-

185, both specify that the civilian secretary correction board

will decide whef to invite the applicant for a hearing. The

plaintiff's former associate legal counsel! in his previous legal

actions is a US Naval Reserve retired officer. This individual

informed the plaintiff that the written directive for the US

Navy BCMR specifies that the applicant will be given a hear-

ing before this board. The plaintiff questioned how can the

same public law which authorizes an Armed Service civilian

secretary correction board, 10 US Code Section 1552, be in-

terpreted in different ways by different Armed Services and

requested the US Court of Claims to issue a ruling to resolve

this inconsistency of treatment by the d.fferent Armed Ser-

vices. The US Court of Claims did not rule on this matter.

g. The plaintiff stated in his legal action before the US

Court of Claims that his legal action was unique, no legal

precident could be located which covered all of the legal

issues involved and requested the court to rule on each and

every legal issue presented. The US Court of Claims did not

rule on each and every legal issue presented.

INCOMPLETENESS OF COURT FILE AT TIME

OF COURT ORDER DATED NOVEMBER 12, 1976

In September, 1976 the plaintiff conferred by telephone

with Mr. Frank Peartree, the US Court of Claims Court Clerk.

Mr. Peartree informed the plaintiff that he was sending the

court file to the court for trial. On September 27, 1976 the

plaintiff filed a motion for leave to file a supplemental me-

morandum based upon the incompleteness of the case file.

The US Court of Claims denied the plaintiff's motion on

October 1, 1976 and on November 12, 1976 dismissed the

plaintiff's legal action.

The plaintiff filed a petition for rehearing in November ,

1976. The basis for this petition is as follows:

a. The Government's brief filed September 20, 1976

presented new legal issues which had not previously been

presented. The US Court of Claims rule no. 103c(2) specifies

that there must be a filing of a stipulation of the parties or

a pretrial memorandum to specify that the court file contains

all the material facts. This procedure was not done.

b. The Government's attorney made several inaccurate

Statements about the plaintiff. The plaintiff wrote to the

US Court of Claims Court Clerk, stated the inaccurate

Statements and requested this information to be communi-

cated to the court. The court clerk refused to do this and

returned this letter to the plaintiff. The plaintiff's letter

which was not accepted by the court clerk is attached to

his motion for rehearing which was filed in November, 1976.

The plaintiff contends that the court clerk was exercising

his own personal judgment. Action should have been taken

in accordance with US Court of Claims rule no. 13(e) per-

taining to misconduct by the court clerk.

Of particular interest is the Plaintiff's Response to Defen-

dant’s Response to Plaintiff's Motion For Rehearing which

was filed September 20, 1976. The first sentence of this

brief specifies: “The Defendant's brief filed September

20, 1976 introduces the following new legal issues:"" Five

sub-paragraphs are stated. With respect to the first three

sub-paragraphs a correction of this statement is now required.

The plaintiff submits that the presentation of these subjects

by the Government’s attorney is simply his arguments for the

sake of presenting arguments. As indicated in this brief the

plaintiff had previously furnished answers to these arguments.

Further, the plaintiff's brief stated that a rehearing he should

be given the opportunity to answer the Government's posi-

tions on separation for cause, courts are not in the promotion

business, support of alleged bias by bis reporting official, and

two discriminatory procedures which are in violation of the

fourteenth article of the US constitution.

The US Court of Claims ruled on December 21, 1976 that

the plaintiff's petition for rehearing was allowed. On January

7, 1977 the US Court of Claims dismissed the plaintiff's peti-

tion for rehearing.

The plaintiff submits the following information in order to

complete this incomplete court file.

c. Answer to the Government's contention that the plain-

tiff was separated for cause. The Government's attorney must

be referring to AFR 36-11, paragraph 21, dated October 21,

1974. This written directive is a “selection out” procedure.

No other “selection out” procedure exists for an Air Force

Reserve officer not serving of EAD. On February 9, 1977 the

plaintiff wrote to the Officer Promotion Section, HQ Air Force

Military Personne! Center, Randolph AFB, Texas, and asked

if this requirement was in effect in 1969 and 1970. The plain-

tiff has received a letter from this HQ dated March 3, 1977

which states that this requirement was not in effect prior to

October 10, 1974. | submit that the Government's attorney

is trying to contend that a written directive for an adverse

action towards the plainti/f was in effect when reasearch dis-

closes that this written directive did not exist at the time the

plaintiff was considered by two officer selection boards. The

Government's attorney is wrong on this matter.

d. Answer to the Government's contention that courts

are not in the promotion business. Research of court report-

ers discloses that courts have ordered the promotion of a

commissioned officer. The plaintiff cites Coddington v. U.S.,

178 F. Supp. 604, 147 Cr. Cl. 629. The plaintiff believes

that his citation of other leagal precidents for a court order-

ed promotion of a commissioned officer is unnecessary.

e. Support of alleged bias by the plaintiff's reporting of-

ficial. The plaintiff offers the following direct testimony.

(1) The plaintiff's reporting official from November,

1966 to August, 1971 was the Comptroller. Excluding the

Comptroller and the plaintiff there were four other officers

assigned to this office. The Comptroller always invited the

other officers and excluded the plaintiff to accompany him

to the Officers Club for lunch and drinks after working hours.

(2) In 1969 an official from HQ 12th Air Force visit-

ed the plaintiff's Air Force Reserve Unit. The Comptroller

called all the other assigned officers together except the plain-

tiff for a conference with this visiting officer. After the plain-

tiff ascertained the nature of this conference he sat in on this

conference. The visiting officer eventually asked the plaintiff

- — to him the nature of his duty station performance

of duties.

(3) The plaintiff's Air Foce Reserve unit sent its

Comptroller Personnel to a regular Air Force Base duri

the annual encampment every second year in 1967, 1969,

and 1971. The Air Force Reserve unit personnel worked

with their active duty counterparts in order to learn their jobs.

The Comptroller always visited the work locations of the Air

Force Reserve Comptroller personnel during the annual en-

campment. The plaintiff would call the personnel in the room

to attention when the Comptroller entered the room. The

Comptroller would ignore the plaintiff, the ranking officer

present, and ask a Noncommissioned officer or a civilian to

escort him through this work area.

(4) During the 1971 annual encampment the plaintiff

and five other ptroller personnel remained at home duty

station for the first six days on special assignment before de-

parting to the regular Air Force Base annual encampment site

by military aircraft. The plaintiff's unit commander informed

him that the Comptroller would meet the arriving aircraft

and make ae for transportation to and for billeting

of the arriving Comptroller personnel. Upon arrival at the Air

Force Base on a Friday evening no arrangements had been made

for the arriving personne! and the Comptroller could not be lo-

cated. The plaintiff, as ranking officer present, made the neces-

sary arrangements for the arriving personnel. The plaintiff

later learned the the Comptroller had left the Air Force Base

for the weekend.

(

(5) The plaintiff's duty assignment in the Comptroller

office was Management Analysis Officer. Whenever the Comp-

troller had work to be done by this section he always took the

work to one of the two assigned Noncommissioned officers

in this section and bi-passed the plaintiff in arranging for this

work to be done.

(a) Alternative argument. The plaintiff's appli-

cation for correction of records to the major command HQ

correction board contains subjective matter of a personality

conflict between the Comptroller and the plaintiff. While the

plaintiff's application was pending at the major command HQ

the applicable written directive for records correction was re-

vised on February 18, 1970. The revised records correction

written directive prescribes personality conflict. The plain-

tiff’s major command HQ correction board reached its nega-

tive decision without applying the requirements of the revised

written directive. If it is not ruled that the subject matter in

the above sub-paragraphs comprise discriminatory acts then it

must be argued that the above subject matter sub-paragraphs

comprise a personality conflict between the plaintiff and his

reporting official. The plaintiff submits that since February

18, 1970 that a personality conflict between the reporting of-

ficial and the ratee is grounds to invalidate the OERs prepared

by this reporting official. An extract copy of the paragraph

pertaining to personality conflict from the revised correction

board written directive is cited in the Regulations Involved

section of this petition.

f. The subjects of (i) protracted delay in processing the

plaintiff's application for correction of his records at his major

command HQ and (ii) his reporting official's adverse military

personnel discriminatory acts towards the plaintiff who isa

a minority group member. The plaintiff questions both of

these practices as being in violation of the fourteenth article

of the US Constitution which prohibits discriminatory acts. The

plaintiff has previously presented discussion of these subjects in

this petition.

REASONS FOR GRANTING WRIT

The US Court of Claims according to its rule no. 13(e) can

use discretion in considering matters before it. The plaintiff

submits that this term is to be interpreted as “some’”’ discre-

tion instead of “wide” discretion. The plaintiff asks this ho-

norable court to consider the following matters. This petition

contains a description of how the US Court of Claims in dis-

missing the plaintiff's legal action before it did not:

a. Rule on two questions of constitutionality,

b. Rule on seven different legal issues,

c. Permit the plaintiff to answer all positions presented

by the Government's attorney which caused the court to rule

on an incomplete court file. The US Court of Claims rule no.

101c(2) requires the court file to be complete before it goes

to trial.

The plaintiff specified in his legal petition before the US

Court of Claims that this legal action was unique and requested

a ruling on each and every legal issue presented. The US Court

of Claims in dismissing the plaintiff's legal action ruled on

only a few of the legal issues presented.

The plaintiff submits that the US Court of Claims has abused

its discretion in denying the plaintiff's petition as is described

above. The plaintiff relies upon the definitions of abuse of

discretion and discretion which are found in Black's Law Dic-

tionary, Revised Fourth edition, pages 24-25 and $53.

The Government's objection to the plaintiff's legal action

is that an officer selection board decision is a discretionary

one and cannot be reviewed by a court. The plaintiff must

nonconcur with this position. The plaintiff cites Hankins v.

U.S., 183 Ct. Cl. 32 as a legal precident of a court reviewing

an Armed Service discretionary decision.

The plaintiff cites the following legal precident for US Court

of Claims review of an Armed Service correction board decision

adverse to claimant for errors of law and to see whether it is

supportable by substantial evidence: Bridgeman v. U.S., 399

——< a. a ly

Se ee

- ly

F. 2d 186, 185 Ct. Cl. 133.

CONCLUSION

This honorable court should:

a. Rule on the questions of constitutionality then issue

a writ of mandamus to specify that the US Court of Claims is

required to rule on each and every legal issue presented, then

remand to this court for trial, or

b. Not rule on the questions of constitutionality but is-

sue a writ of mandamus and remand for trial as specified in

sub-paragraph a above.

For the forgoing reasons this petition for a writ of certorari

should be granted.

Respectfully submitted,

Charles L. Meyer

Petitioner.

April 1, 1977

IN THE UNITED STATES COURT OF CLAIMS

No. 182-75

Charles L. Meyer v. The United States

Charles L. Meyer, Pro se.

Michael |. Rubin, with whom was Assistant Attorney

General Rex E. Lee, for defendant.

Before SKELTON, Judge, Presiding, NICHOLS and

KASHIWA, judges.

ORDER

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

summary and defendant's cross-motion for summary judgment.

Af ter a thorough reading of the briefs, consideration of the

pleadings, and without oral argument, we grant defendant's

cross-motion for summary judgment, deny plaintiff's motion

for summary judgment, and dismiss plaintiff's petition.

Plaintiff is a former captain in the United States Air Force

Ready Reserve who was separated from that service on August

26, 1971, after having been twice passed over for promotion

to major. Plaintiff alleged that he was not selected for pro-

motion to major due to administrative errors in his Officer

Effectiveness Reports (OERs). He alleges that these errors

violated certain Air Force Regulations.

After being notified of his nonselection for promotion to

major in January, 1969, plaintiff reviewed his personnel re-

cords at the Air Reserve Personne! Center in Denver, Colo-

rado. He claims that he then noticed for the first time certain

alleged administrative errors in his OERs. His name was incor-

rectly spelled on one; the incorrect reporting official prepared

two; and there were material misstatements and pertinent

omissions on the remaining two.

ee

in October 1969, plaintiff filed an application with the

Officer Personnel Record Review Board (OPRRB), requesting

the invalidation of the five OERs in question. That Board

denied his application in April 1970.

in January 1970, plaintiff again failed to be selected for

promotion. He submitted an application in June 1970, to

the Air Force Board for the Correction of Military Records

(AFBCMR). Again plaintiff's application was denied due to

insufficient evidence to establish a showing of probable error

or injustice. Although plaintiff requested a hearing, the Board,

pursuant to AFR 31-3, denied the request and denied his ap-

plication on June 22, 1971.

Plaintiff sought legal relief through the United States Dis-

trict Court for the Northern District of Ilinois in August 1971.

After that court dismissed the complaint for lack of jurisdic-

tion in January, 1972, plaintiff appealed tot eh Seventh Cir-

cuit Court of Appeals, which affirmed the decision of the Dis-

trict Court on June 23, 1973. The Supreme Court denied a

petition for writ of certiorari in December, 1973. Plaintiff

filed the instant action in this court on June 2, 1975.

419 U.S. 831 (1974).

Moreover, the plaintiff's claim has been denied by the Air

Force Board for the Correction of Military Records. There is

a substantial body of law to the effect that a court cannot over-

turn a decision of the BCMR unless it is affirmatively shown

by cogent and clearly convincing evidence to be arbitrary, ca-

pricious, and not based upon substantial evidence, or is contra-

ry to applicable law and regulations. Since there is a strong

presumption that the Board of Secretary (who must approve

the action of the Board) faithfully discharged their duties,

plaintiff has the burden of proving otherwise. See Cooper v.

United States, 203 Ct. Cl. 300, 304 (1973); Dorl v. United

States, 200 Ct. Cl. 626, 633, cert. denied, 414 U.S. 1032

(1973), Callan v. United States, 196 Ct. Cl. 392, 450 F. 2d

1121 (1971); Biddle v. United States, 186 Ct. Cl. 87 (1968).

Plaintiff has not submitted cogent and clearly convincing evi-

dence that the decision of the AFBCMR was arbitrary or ca-

pricious. The vague and ambiguous conclusionary statements

offered by plaintiff do not qualify as such evidence.

This court has also held that the action in refusing to grant

a hearing is neither arbitrary nor contrary to law and that, in

the absence of a clear showing that the Board acted arbitrarily

or capriciously, and therefore, unlawfully, its decision will not

be disturbed. See Boland v. United States, 169 Ct. Cl. 145

(1965) and Kurfess v. United States, 169 Ct. Cl. 486 (1965).

For the foregoing reasons, IT 1S ORDERED that the defen-

dant’s cross-motion for summary judgment is granted, plain-

tiffs motion for summary judgment denied, and the plain-

tiff’s petition is dismissed.

BY THE COURT

Byron Skelton

Judge

November 12, 1976

TABLE OF CASES

Page*

Alexander v. U.S.,

1 U.S. 117, 121-122, 26 S.Ct. 356, SO L.Ed. 686

Biddle v. U.S.

1968, 186 Ct. Cl. 87

Borden Co. v. Sylk,

3Cir., 410 F. 2d 843, 845-846

v. U.S. 15-16

Bridgman

399 F. 2d 186, 185 Ct. Cl. 133

Brundage v. U.S.,

504 Fd 1382, certiorari denied 95 S.Ct. 2395

Three US Navy BCMR decisions pertaining to Chief

Warrant Officer Carl H. Buck, US Marine Corps, Retired.

eam Co. v. Golden Rod Ice_ Cream Co.

257 F. 2d 417 (7th Cir. 1958)

kv. US.,

309 U.S. 323, 327, 60 S. Ct. 540, 84 L.Ed. 783

v. U.S. 12

178 F. Supp. 604, 147 Ct. Cl. 629

Cooper v. U.S.,

203 Ct. Cl. 300

Duhon v. U.S.,

1972, 451 F. 2d 1278, 198 Ct. Cl. 564

Eronteero v. Richardson,

411 U.S. 677, 93S. Ct. 1964

Geller v. The Secretaries of Defense and the Air Force,

US Dist. Ct. for the Dist. of Columbia, file no. 74-1843,

ruling dated January, 1977

Page*

AFBCMR decision no. 67-3736 dated 28 February 1968

pertaining to Chaplain Ist Lt. John E. Groh, US Air Force

Reserve

Comptroller General Opinion No. B-183759 dated Novem-

ber 26, 1975 pertaining to Commander Clarence S. Hall,

US Coast Guard, Retired

Vv

Hammon v. Lenfest,

398 F. 2d 705, 715 (2d Cir. 1968)

Hankins v. U.S., 15

783 Ct. Cl. 32

Henry v. U.S.,

129 Ct. Cl. 362, 153 F. Supp. 285 (1957) 289

Harris v. U.S.,

177 Ct. Cl. 538

akway v. U.S, | ,

Supp. 307, 146 Ct. Cl. 482

Ludzinski v. U.S.

154 Ct. Cl. 215

eenan US.,

432 F. 2d 433 (Ct. Cl. 1970)

Newman v. U.S.

7968 185 Ct. Cl. 269

Novak v. Captain Talbot, USN, cLal.,

U.S. Dist. Ct. of No. Ill. Eastern Division, file no.

72C 1559, ruling dated October 19, 1972

O'Callahan v. Parker,

395 U.S. 258, 89 S. Ct. 1683, (1969)

Prichard v. U.S..,

133 Ct. Cl. 212, 116

SPF 268i

406 F. 2d 141, 145, 146, (2d Cir. 1969)

U.S. v. Offord

373 F. Supp. 1117

Von Bourg v. Nitze,

388 F. 2d 557, 563 (D.C. Cir. 1967)

Yee v. US.,

$12 F. 2d 1383

Winbers *. U.5.

Fed. Supp. 325, 120 Ct. Cl. 511

w v. US.,

ae Ce 57 21 L.Ed. 2d 80 (1968)

* The cited page numbers refer to cases cited in this petition.

All cited cases except Bridgman v. U.S., Coddington v. US.,

and Hankins v. U.S. are cited from the legal action which is

being appealed, US Court of Claims file no. 182-75.

OTHER PUBLIC LAWS

10 US Code, Sections 1006a, 1331, and 1552.

US Court of Claims, rule number 13(c), 13(e), 101¢(2), and

1S$la.

US Constitution, Ammendments Nos. 5 and 14.

TEXT BOOKS

Black's Law Dictionary, Revised Fourth Edition, pages 24-25

and 553.

AIR FORCE REGULATIONS INVOLVED

Air Force Manual (AFM) 35-3 in effect in 1969 and 1970.

AFM 36-10 in effect in 1969 and 1970. Individual page num-

bers and paragraphs are specified in the plaintiff's petition

filed June 2, 1975, Attachment No. 4.

AFR 31-3, dated 21 October 1970.

AFR 31-11 dated 29 April 1969, paragraphs 1, 3a, and 5b(2)(b).

AFR 31-11 dated 18 February 1970, paragraphs 1, Sb(2)(b),

Attachment #2, paragraphs 1, 2a, 2b, and paragraph 11, cited

below.

11. Appeals Based on Personality Conflict. Since the sub-

ordinate must abide by the superior’s decisions, even though

some disagreements may occur, the former must be able to

rather conclusively document why the superior was unable to

be objective during the evaluation process. Supporting state-

ments must cite specific instances, observed on a first-hand

basis, which indicate the superior/subordinate relationship

became so strained that an objective evaluation of the indivi-

dual’s performance was not possible.

AFR 36-11, paragraph 21, dated 10 October 1974.