Petition — Bensing v. United States

——— 4

In The

Supreme Court of The United States

No.

-_~

ROBERT G. BENSING,

. Petitioner-Appel lant

UNITED STATES OF AMERICA,

Defendant-Appel lee

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Robert B. Booz

Counsel for Petitioner-Appel lant

12505 W. 32nd Avenue

Wheat Ridge, Colorado 80033

Telephone: 303-402-0168

INDEX

Table of Authorities

Citation to Opinion Below.........

Statement OF durtsegiction ... 2 csete

Questions Presented for Review ......

Federal Statutes, Rules and

Regulations Involved .......... lla

es Gee ee sn we 6 eke we ele 8

A.

B.

Procedural History ........

I oad a Pe ee Bae

Reasons for Granting the Writ .......

-

Certiorari should be granted

because: that portion of 10 U.S.C.

§ 8287, which congress enacted in

1956 as Section 207 of the Armed

Forces Regular Officer Augmentation

Act, viclates the due process

clause of the fifth amendment in

granting promotion credit to

Bensing's career contemporaries

who served with him in World War II,

if they were over 21 years of age,

and denying such credit to Bensing

and others for concurrent service

performed prior to becoming 2]

years of age; that said 1956 Act is

unlawfully discriminatory, and is

based upon a false and irrational

i

II.

INDEX (Continued)

Page

premise, namely that Congress

could and should modify the

1947 Officer Personnel Act

retroactively to grant promotion

credit for wartime service as

commissioned officers to one

group while denying it to another

group solely on the basis of age,

even though both groups had

accepted regular commissions

under the 1947 Act and had prior

concurrent service in wartime

and thereafter; and further,

that the denial of promotion

credit for those who served as

commissioned officers in wartime

while under 21 years of age was

designed primarily as an unwar-

ranted protective device for the

young men who spent the war years

as cadets in the sanctuary of the

United States Military Academy.

Certiorary should be granted

because: Bensing was wrongfully

denied consideration for pro-

motion due to an admitted error

in his military personnel records.

Since he was not considered, he

could not be promoted, and the

lower courts improperly placed the

burden of proving damages upon

os: «+s ee © be es 6 8

ij

III.

INDEX (Continued)

Certiorari should be granted

because: immediately upon the

implementation of the 1956 Statute,

retroactively granting promotion

credit for wartime service only

to those who were 21 years of

age during such service, Bensing's

relative position for promotion,

his time-in-grade, and his rank

dropped drastically compared to

that of his wartime career con-

temporaries who were 21 years of

age during World War II and re-

ceived the retroactive promotion

credit for world War II conmis-

sioned service which Bensing

was denied. No such provision was

incorporated in the 1947 Act under

which Bensing received appointment

to a Regular commission in 1972.

Tne 1947 Act provided credit only

for commissioned service performed

after the passage of the Act, a

clearly constitutional and non-

discriminatory legislative enact-

ment even though no appointment

or credit for promotion prior to

Age 2! was provided. No

retroactive grant or denial of

credit for service performed prior

to the passage of the Act was

included. Bensing's career was

shattered by the 1956 retroactive

deprivation of rights, privileges

and property, and his career con-

temporaries moved inexorably

ahead in career progression.

iii

Page

INDEX (Continued)

Page

This discriminatory depri-

vation of promotion credit

for World War II service

alone would have prevented

normal career progression.

When combined with the

admitted administrative error

and the effect of the 1959

Cfficer Grade Limitation Act

(which allowed the Air Force

to convert promotion criteria

based upon "“time-in-grade" to

2 dual basis of "Promotion

List Service Date" and

“time-in-grade"). The result

was inevitably the two pass-

overs for promotion which

required his involuntary

early retirement as a major

after many years of exem-

plary service to his country

in war and peace as a com-

missioned officer in the armed

forces. ae + & se @ & ee

iv

TABLE OF A'ITHORITIES

I. CASES

Accord, In the Matter of Patricia A.,....

31 N.Y. 2d 83, 355 N.Y. 2d 33 (1972)

memetrems ©. Mowmil, ..-. se ee ees

371 F. Supp. 48 (D.Neb. 1974)

Blassman v. Markworth, ..........

359 F. Supp. 7 (N.D. 111. 1973)

ee eS ew ae at a es

347 1? 497 (1954)

Cleveland Board of Educationv. .....

LaFlcur, 414U.S. 632 (1974)

Commonwealth v. Daniels, -+-+-++-++s-s

430 Pa. 642, 243 A.2d 400 (1968)

Cooper v. Nix, 343 F. Supp. 1101 ----.--

(W.D. La. 1972), aff'd as modified,

496 F.2d 1285 (5th Cir. 1974)

Dunn v. Blumstein, -+-++ +++ ++ ees

405 U.S. 330 (1972)

Human Rights Party v. Secretary cf -:+-: -

State for Michigan, 3/0 F. Supp. 921

(E.D. Mich. 1573)

Kahn v. Shevin,

416 U.S. 351 (1974)

en « .~ bois oi g wie 6 6 8s ew

456 F.2d 18 (1972)

Page

bee we Ri as fs BS ee Seo 1]

3oT U.S. 68(1968)

Murgia v. Commonwealth of --+--+-++-+:+:> 14

Massachusetts Board of Retirement,

376 F. Supp. 753 (D Mass. 1974)

x) ee ee ee ae a 10

404 U.S. 71, 76 (1971)

Royster Guano Co. v. Virginia, --+-+-+--:-: 10

285 U.S. 412, 415 (1920)

Schlesinger v. Ballard,-- --+-++-++-+ss-. 9

U.S. : n.3 (1975)

Shapiro v. Thompson,- - +--+ +++ +*** eee 9

394 U.S. 618, 642 (1969)

Skinner v. Oklahoma, - +--+ +++ ee? 11,15

U.S.

United States vy. See. = stsi‘éi;OC’NC#C#C§CS, 14

456 F.2d 1401 (Sth Cir.),

vacated on other grounds,

499 U.S. 814 (197

Viandis v. Kline, «+--+ * «+ ee ee ees 14

412 U.S. 447 (1973)

Weiss v. Walsh, - - - see eee eee ees 14

324 F. Supp. 75 (S.D.N.Y. 1971),

aff'd, 461 F.2d 846 (2d Cir. 1972)

vi

Page

II. STATUTES

Title 10 U.S.C. : 8287, Section 207

of the Regular Officer Augmentation

gS ee ae ee 2 et seq.

Section 506 (c) of the Armed

Forces Regular Officer

Augmentation Act of 1947

(repealed).

Legislative History of

Section 203 (d)

Regular Officer Augmentation

Act of 1956, U.S. Code

Congressional and Administra-

tive News, 1959, at page 3369........, 17

Legislative History of

10 U.S.C. 8202, 1959 Officer

Grade Limitation Act, U.S. Code

Congressional and Administrative

News, 1959, at page 2694. ........ 6,21

Section 27, Public Law 85-861,

1957, amending 10 U.S.C. 8287,

MS tf og we 6 a ce és eee 7

III. OTHER AUTHORITIES

Developments in the Law:

Equal Protection

82 Harv. L. Rev. 1965 (1969). ........ 9

vii

IN THE SUPREME COURT OF THE UNITED STATES

No.

ROBERT G. BENSING, Petitioner-Appel lant

vs.

UNITED STATES OF AMERICA, Defendant-Appel lee

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES OF COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioner Robert G. Bensing prays that a

Writ of Certiorari issue to review the decision

of the United States Court of Appeals for the

Tenth Circuit, (the "Court of Appeals") entered

March 22, 1977, in the case of Robert G. Bensing,

Petitioner-Appellant, vs. United States of

America, Defendant-Appellee, Case No. 76-1125,

which affirms the order of the United States

District Court for the District of Colorado

(the "District Court") entered on December 23,

1975, denying the relief sought by the Petitioner-

Appellant and dismissing his cause of action,

Case Number C-5181 in the District Court.

CITATION TO OPINION BELOW

The opinion of the United States Court of

Appeals for the Tenth Circuit in Robert G. Bensing,

Petitioner-Appellant, vs. the Unites States of

America, Defendant-Appellee, Case No. 76-1125,

was filed March 22, 1977, and to the best of

Petitioner's knowledge is not yet reported. A

copy of this opinion is appended hereto as

Appendix A.

2

STATEMENT OF JURISDICTION

Petitioner seeks a Writ of Certiorari to review

the decision of the United States Court of Appeals

for the Tenth Circuit entered March 22, 1977, in the

case of Robert G, Bensing, Petitioner-Appel lant,

vs. United States of America, Defendant-Appellee,

Case No. 76-1125, citing Title 28 U.S.C. §1254 which

provides that:

Cases in the courts of appeals may be re-

veiwed by the Supreme Court by the follow-

ing methods:

(1) By writ of certiorari granted upon

the petition of any party to any civil or

criminal case, before or after rendition

of judgment or decree...

This statute is believed to confer on the Supreme

Court of the United States jurisdiction to review

by Writ of Certiorari the decision of the Tenth

Circuit Court of Appeals affirming the denial of

relief to the Plaintiff-Appellant and the dis-

missal of his cause of action by the District Court.

QUESTIONS PRESENTED FOR REVIEW

1. Does 10 U.S.C. 8287(a)(1) deny Robert G. .

Bensing, Plaintiff-Appellant, due process of law

under the Federal Constitution by failing to permit

credit towards promotion for active commissioned

military service perfurmed before the age of 21 years?

2. Did the District Court commit error by

denying Robert G. Bensing's claim for relief as a

result of Bensing's having been wrongfully denied

consideration for promotion due to an admitted

error in Bensing's military records?

3. Is not the statute unfair and discrimina-

tory and designed, not to grant promotion credit

for time served, but solely to deprive a very

limited group of young wartime officers, in-

cluding Bensing, of earned and deserved pro-

motion credit while protecting another limited,

though influential group, namely service

academy graduates who were cadets in the pro-

tected sanctuary of the Academy during World

War II?

4. Did not the combined effect of dep-

rivation of credit for-wartime service and

admitted administrative error result in Bensing's

failure to be promoted beyond the grade of major

and prematurely terminate his career in that

relatively low grade after more than 22 years

active duty as a commissioned officer during

three separate conflicts?

STATEMENT OF THE CASE

A. Procedural History

The parties will be referred to as follows:

Plaintiff-Appellant will be referred to

as “Bensing"; Defendant-Appellee will be referred

to as "United States."

Action No. C-5181 was commenced in the

United States District Court, District of Colorado,

by Bensing, a retired military officer, alleging

that the United States has wrongfully denied him

credit towards promotion for commissioned military

service which was performed before Bensing reached

the age of 21 years. Additionally, Bensing

alleged that an error in his personnel records

was wrongfully permitted to exist and said error

caused Bensing to be denied consideration for

promotion with Bensing's contemporaries. Robert

G. Bensing is a retired air force officer whs was

involuntarily retired on October 31, 1971, in the

grade of Major.

The United Stated denied the allegations of

the Complaint and asserted lack of jurisdiction,

failure to state a claim upon which relief may

be granted, laches, and res judicata.

The matter was tried to the Court in the

United States District Court for the District of

Colorado on November 17, 1975. Following the

trial, the District Court Judge entered findinas

of fact into the record and ruled that the burden

of proof was upon Bensina to prove, that had an

error not existed in his personnel record he would

have received a promotion in the fiscal year 1961.

The Court ruled that Bensing did not sustain this

burden of proof and denied his claim upon its

merits. The Court also entered findings of fact

with regard to Bensing's claim for relief which

alleged the unconstitutionality of 10 U.S.C. 8287.

The Court then requested counsel to file briefs

on the constitutionality of 10 U.S.C. 8237. After

having received and considered the briefs of the

parties dealing with Bensing's claim that

10 U.S.C. 8287 violates Bensing's right to equal

protection of the law under the Federal Constitu-

tion, the Court entered Findinas of Fact and

Conclusions of Law on December 23, 1975.

The District Court ruled that Bensing failed

to sustain his burden of proving damage resulting

from the erroneous entry made by the United States

in his personnel records, and that Bensing is not

entitled to recover thereon. The Court also

ruled that 10 U.S.C. 8287, has a rational basis

for the discrimination therein as between those

who had service as commissioned officers prior to

the age of 21 years and those commissioned officers

who had no such service prior to the age of 2]

years, and that this discrimination is not ividious

and does not and did not violate Bensing's constitu-

tional rights. Therein followed a judgment of

dismissal of Bensing's Complaint.

An appeal was taken to the United States

Court of Appeals, 10th Circuit, which affirmed

the judgment and order of the District Court.

B. THE FACTS

Bensing's military record is conclusive

with regard to the following facts:

Bensing entered the armed forces on

February 2, 1943, as a private in the United

States Army. He later entered pilot training

in the United States Army Air Corps and was

commissioned a Second Lieutenant on March 12,

1944. He then was trained and began active

commissioned service as a pilot of a B-17 bomber

aircraft. Bensing's military records indicate

that he participated in combat missions and was

decorated and awarded an Air Medal prior to

May 18, 1945, at which time he attained the age

of 21 years. Bensing served on active duty

until November 28, 1945, when he accepted an

appointment in the reserve forces in the grade

of first lieutenant. On April 15, 1951, Bensing

was recalled to extended active duty and served

continuously until his involuntary retirement on

October 31, 1971, in the grade of major.

The Officer Personnel Act of 1947 provided

for the appointment of Regular officers after

the date of the Act and included an age require-

ment of 21 years. The Act also provided that

for purposes of determining grade, promotion

and seniority as a Regular officer in the air

force, an officer could only receive credit at

the time of his regular appointment for all

active commissioned service which occurred after

the officer's 21st birthday, and after the ‘ate

of the Act. On October 15, 1952, Bensing

accepted an appointment as a second lieutenant

ee

~~ ---—~>

in the regular air force. Bensing's status as a

Regular officer meant more than a declaration of

an intention to be a career military officer.

Regular officers, when compared with Reserve

officers, can expect a greater opportunity for

promotion in the secondary zone. Additionally,

from 1959 until 1971, Regular officers dominated

secondary zone promotions among field grade

officers (major and above).

On November 19, 1956, an erroneous entry in

Bensing's personnel records established nis

Promotion List Service Date (PLSD) as January 15,

1951. This error was not corrected until January

18, 1961, at which time Bensing's records were

corrected to reflect the PLSD of September 19,

1950. The significance of a PLSD was increased

by the Officer Grade Limitation Act of 1959.

The effect of this Act was to convert from a

time-in-grade criteria to a dual criteria of

Promotion List Service Date and time-in-grade for

promotions.

It is undisputed that Plaintiff-Appel lant

was not considered for promotion to the grade of

major in the secondary zone due to an incorrect

PLSD. In FY 1961, Captain Bensing, because of

his military record, time-in-grade, and Regular

officer status, had reason to believe he would be

conipetitive when considered for promotion to the

grade of major in the secondary zone. Regular

officers dominated secondary zone promotions. In

FY 1960, of the 19.9% of the secondary zone

selectees for major, 91.6% were Regular officers.

In FY 1961, of the 9.1% of the secondary zone

selectees for major, 90.7% were Regular officers.

The United States provided Bensing no means,

by regulation or otherwise, to inform promotion

boards which considered Bensing subsequent to

FY 1961 of the error which caused Bensing to be

considered one year later than his peers. Were

it not for 10 U.S.C. 8287, Bensing would have

been permitted to add 14 months of commissioned

service for the purpose of determining arade,

position on promotion lists, and seniority in

grade. Were it not for the effect of the cited

statute, Bensing would have advanced earlier to

the grade of major and would have been paid the

appropriate higher rate of compensation. His

carrer progression would have been normal and

he would have advanced with his career contem-

poraries of World War II. Instead, because of

the error compounded by the statutory loss of

standing, normal progression ceased and his

career was doomed to premature termination.

The promotion credit loss could have been mini-

mized by use of the statutory authority provided

in Section 27 of Public Law 85-861, 1957, but

Bensing's records were obviously in shambles and

remained so until the time of his involuntary

retirement when his certificate of discharge

reflected an incorrect date of entry to extended

active duty. Section 27 of PL 85-861 provides

as follows:

Notwithstanding any other provision

of law, the years of service credited

to an officer of the Regular Air Force

on July 20, 1956, for the purposes of

Section 8287, 8888(2)(A)-(C) and (E)-(G),

and 8927(a) (1)-(3) and (5)-(7) and

b)(2) of Title 10, United States Code

this section and sections 8888(2)

(A)-(C), (E)-(G) and &927(a) (1)-(3),

(5)-(7), (b)(2) of this title), may be

increased but not by more than two years,

under regulations to be prescribed by

the Secretary of the Air Force.

REASONS FOR GRANTING THE WRIT

I

CERTIORARI SHOULD BE GRANTED BECAUSE: THAT

PORTION OF 10 U.S.C. § 8287, WHICH CONGRESS

ENACTED IN 1956 AS SECTION 207 OF THE ARMED

FORCES REGULAR OFFICER AUGMENTATION ACT,

VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH

AMENDMENT IN GRANTING PROMOTION CREDIT TO

BENSING'S CAREER CONTEMPORARIES WHO SERVED WITH

HIM IN WORLD WAR II, IF THEY WERE OVER 21 YEARS

OF AGE, AND DENYING SUCH CREDIT TO BENSING AND

OTHERS FOR CONCURRENT SERVICE PERFORMED PRIOR TO

BECOMING 21 YEARS OF AGE; THAT SAID 1956 ACT IS

UNLAWFULLY DISCRIMINATORY, AND IS BASED UPON A

FALSE AND IRRATIONAL PREMISE, NAMELY THAT CONGRESS

COULD AND SHOULD MODIFY THE 1947 OFFICER PERSONNEL

ACT RETROACTIVELY TO GRANT PROMOTION CREDIT FOR

WARTIME SERVICE AS COMMISSIONED OFFICERS TO ONE

GROUP WHILE DENYING IT TO ANOTHER GROUP SOLELY

ON THE BASIS OF AGE, EVEN THOUGH BOTH GROUPS

HAD ACCEPTED REGULAR COMMISSIONS UNDER THE 1947

ACT AND HAD PRIOR CONCURRENT SERVICE IN WARTIME

AND THEREAFTER; AND FURTHER, THAT THE DENIAL OF

PROMOTION CREDIT FOR THOSE WHO SERVED AS COM-

MISSIONED OFFICERS IN WARTIME WHILE UNDER 21 YEARS

OF AGE WAS DESIGNED PRIMARILY AS AN UNWARRANTED

PROTECTIVE DEVICE FOR THE YOUNG MEN WHO SPENT THE

WAR YEARS AS CADETS IN THE SANCTUARY OF THE UNITED

STATES MILITARY ACADEMY.

Title 10 U.S.C. 8287(a)(1) creates two classes

of commissioned officers for purposes of determin-

ing grade, position on a promotion list, and eli-

gqibility for promotion in the Air Force. On the

one hand are all persons commissioned after

becoming 21 years of age; on the other, all persons

who received their commission before reaching age

21. Persons in the former class receive credit

towards promotion for all service performed

afler commission, while those in tie latter class

are denied credit for any amount of service per-

formed after commission but prior to their be-

coming 21 years of age. The result of this class-

ification is to prejudice all persons in the latter

class in that, by operation of 10 U.S.C. § 8287

(a)(1), they are not promoted as quickly as per-

sons who have served under commission for the

exact same period but who fortuitously happened

to have been commissioned after reaching 21 years

of age. Bensing, who was commissioned as a second

lieutenant on March 12, 1944, but who did not

become 2] until May 18, 1945, was so prejudiced

by losing credit for approximately 14 months

post-commission service as a result of this

challenged section.

Because the statute in question is a

federal statute, any constitutional challenge

based on an invidious descrimination contained

therein must be predicated upon the Due Process

Clause of the fifth amendment. The Due Process

Clause of the fifth amendment, however, incor-

porates all of the requirements of the Equal

Protection Clause of the fourteenth amendment.

See Schlesinger v. Ballard, 419 U.S. 498,

500 n.3 (1975); Shapiro v. Thompson, 394 U.S. 618,

642 (1969); Bolling v. Sharpe, 347 U.S. 497 (1954).

In recent years Supreme Court decisions

have developed a "two-tiered" scrutiny under the

Equal Protection Clause, Developments In The Law:

Equal Protection, 82 Harv. L. Rev. 1065 (1969),

in which the degree of tolerance or latitude

permitted a statutory classification will depend

upon the interests affected by the classification

or the nature of the classification itself.

10

Where the classification is "suspect," i.e.,

drawn along racial or other constitutionally

impermissible lines such as alienage, or where the

interest affected by the classification is funda-

mental, i.e., an interest protected explicitly

or implicitly by the Constitution itself, then the

statute is subjected to the strictest of scrutiny.

It must be in furtherance of a compelling state

interest and must be drawn in such a way that the

only way in which the interest can be realized

is by the statutory scheme in question. Dunn v.

Blumstein, 405 U.S. 330 (1972). Where, however,

neither a fundamental interest nor a suspect

classification is implicated by the statute, then

the lines drawn by the statute are permitted

greater leeway and the only requirement is that

the “classification ‘must be reasonable, not

arbitrary, and must rest upon some ground of

difference having a fair and substantial relation

to the object of the legislation, so that all

persons similarly situated shall be treated

alike.'" Reed v. Reed,404 U.S. 71, 76 (1971),

quoting from Royster Guano Co. v. Virginia,

253 U.S. 412, 415 (1920). It is submitted that

in the case at bar the failure to give credit

for purposes of promotion for commissioned ser-

vice performed prior to age 21 fails to meet these

constitutional tests, that the exclusion of such

service is fundamental because it deals with an

important aspect of the armed forces, is "suspect"

because it discriminates solely on the basis of

age, and if not regarded as fundamental or

"suspect", it is arbitrary and bears no reasonable

relation to any legitimate governmental objective.

Bensing, at age 19, proved liimself to be

worthy of commission as a second lieutenant and

in that capacity to serve as an aircraft commander

1]

flying combat missions. He did exactly what

other commissioned officers did, nothing different.

Because he was not then 21 years old, however,

10 U.S.C. § 8287 (a)(1) deprives him of credit

for the period of such service performed prior to

his twenty-first birthday. There is no rational

basis for treating two persons performing the

same service differently for purposes of pro-

motion merely because of their age, and more

especially SO when it involves a retroactive

grant of additional rights, privileges and

property several years after the service was

performed. Such arbitrary differentiation

strikes at the very essence of the prohibition

against denial of equal protection under both the

fourteenth and fifth amendments.

In Skinner v. Oklahoma, 316 U.S. 535

(1942), the Supreme Court held an Oklahoma

statute which required sterilization of some

“habitual criminals" but not others to be uncon-

stitutional, stating, at 541-42:

When the law lays an unequal hand

on those who have committed intrin-

sically the same quality of offense

-++, it has made as invidious a

discrimination as. if it had se-

lected a particular race or nation-

ality for oppressive treatinent...

The equal protection clause woula

indeed be a formula of empt_ wor °

if such conspicuously art.ticiai

lines could be drawn.

In Levy v. Louisiana, 391 U.S. 69 (1968),

the Court found a Louisiana statute which pre-

cluded illegitimate children from recovering for

the wrongful death of their mother to be uncon-

stitutional when legitimate children in exactly

12

the same position could recover. In so holding,

the Court said:

Why should the illegitimate child be

denied rights merely because of his

birth out of wedlock? He certainly

is subject to all the responsibilities

of a citizen, including the payment of

taxes and conscription under the Selec-

tive Service Act. How under our

constitutional regime can he be denied

correlative rights which other citizens

enjoy?

Legitimacy or illegitimacy of birth

has no relation to the nature of the

wrong allegedly inflicted on the mother.

These children, though illegitimate,

were dependant on her; she cared for them

and nurtured them...(391 U.S. at 71-72.)

In another setting, disparate treatment of

persons otherwise in exactly the same position was

found to be constitutionally offensive in Common-

wealth v. Daniels, 430 Pa. 642, 243 A2d 400 (1968),

in which the Pennsylvania Supreme Court struck down

Pennsylvania's Muncy Act, which provided for

harsher sentences for women than for men convicted

of the same crime. In so doing, the court held,

243 A.2d at 403-404, as follows:

A Classification by sex alone would not,

per se, offend the Equal Protection Clause

of the United States Constitution. For

example, there are undoubtedly signifi-

cant biological, natural and practical

differences between man and women which

would justicy, under certain circum-

stances, the establishment of different

employment qualification standards. ...

13

We are convinced, however, that the

considerations and factors which would

justify a difference between men and

women in matters of employment, as well

as in a number of other matters, do not

overn or justify the imposition of a

lobar or greater sentence of women

than is imposed upon men for the con-

mission of the same crime. wy

In a similar kind of case, the Tenth Cir-

cuit Court of Appeals has held an Oklahoma

statute to be unconstitutional in providing for

criminal treatment of males over 16 years of

age, while not providing for similar treatment

for girls until they reached 18. Lamb v. Brown,

456 F.2d 18 (1972). The Court stated, at 20: —

We have not been presented with a

logical constitutional justification for

the discrimination inherent in (the

statute). The State, in its brief and

oral argument has simply relied upon

the unexplained “demonstrated facts

of life." Because the purpose of the

disparity in the age classification

between 16-18 year old males and 16-18

year old females has not been demon-

strated, we hold that (the statute)

is violative of the equal protection

ciause.

in the Matter of Patricial A.,

Accord,

Age classifications, like classifications by

sex, may be constitutional where they reflect

some real difference. See, e.g., Schlesinger v.

Ballard, 419 U.S. 498 (1975); Kahn v. Shevis,

14

416 U.S. 351 (1974). In the usual case involving

classifications by age, persons either below or

above a particular age are prohibited from

engaging in some activity because of a presumed

inability attributable to early or advanced age.

Manson v. Edwards, 482 F.2d 1076 (6th Cir. 1973)

(upholding minimum age of 25 for school board);

United States v. Duncan, 456 F.2d 1401 (9th Cir.),

vacated on other grounds, 409 U.S. 814 (1972)

{upholding minimum age of 21] for grand jury

service); Murgia v. Commonwealth of Massachusetts

Board of Retirement, 376 F. Supp. 753 (D. Mass.1974)

(three judge court) (holding mandatory retire-

ment age of 50 for state police to be unconstitu-

tional); Armstrong v. Howell, 371 F. Supp. 48

(D.Neb. 1974) (upholding mandatory retirement

age of 65); Human Rights Party v. Secretary of

State for Michigan, 370 F. Supp. 921 (E.D. Mich.1973)

(three judge court) (upholding minimum age of 18 to

run for school board); Blassman v. Markworth, 359 F.

Supp. 1 (N.D.I11. 1973) (three judge court)

(upholding minimum age of 2] to run for school

board); Cooper v. Nix, 343 F. Supp. 1101

(W.D. La. 1972), aff'd as modified, 496 F.2d 1285

(Sth Cir. 1974) (finding regulations requiring

students to live on campus to be unconstitutional);

Weiss v. Walsh, 324 F. Supp. 75 (S.D.N.Y. 1971),

aff'd 461 F.2d 846 (2d Cir. 1972) (upholding

mandatory retirement age of 65). In the case at

bar, for example, were persons under the age of

21 precluded from receiving a commission as a

second lieutenant, Bensing's constitutional

challenge would be far more difficult. Such a

case might conceivably give rise to a due pro-

cess attack based upon irrebuttable presumptions,

se, e.g., Cleveland Board of Education v. LaFleur,

414 U.S. 632 (1974); Viandis v. Kline, 412 U.S. 44]

(1973). The opposite is true in this case.

Bensing was not prohibited from serving as a

15

second lieutenant. Based upon an assessment of

his capabilities and maturity, he was commissioned

when only 19 years of age and was given the awe-

some responsibility of flight crew commander

flying combat missions during World War II.

Given the fact that a judgment was made as to

Bensing's ability to serve, notwithstanding his

young age, there can be no rational purpose for

precluding him from receiving credit towards

promotion for the period of time served as a

second lieutenant prior to attaining age 21.

Just as in Skinner v. Oklahoma, supra, and

Levy v. Louisiana, supra, when people are identi-

cally situated, arbitrary distinction cannot

constitutionally justify treating certain of

those people differently than others. The Tenth

Circuit so held in Lamb v. Brown, supra, when it

refused to uphold the Oklahoma statute in the ab-

sence of "a logical constitutional justification

for the discrimination..." The constitutional

invalidity of 10 U.S.C. § 8287(a)(1) would be

more strikingly apparent, but no different ana-

lytically, were second lieutenants under 21 years

of age paid a lower rate of pay than those over

21 doing exactly the same job with similar service

experience. Such an arbitrary and irrational

provision would have been insupportable at the

time the service was being performed, but in this

case, since persons under 21 serving as commis-

sioned officers were retroactively deprived of

equal credit towards promotion for that time

served, they are, according to the statutory scheme

in question, in a very real sense receiving less

compensation for that period of service than

persons who were over 21 years of age, and who

in addition to their other compensation, were

unknowingly building up credits towards pro-

motion, credits denied to Bensing.

16

By way of judicial knowledge, this Honorable

Court should consider American History which

foliowed December 7, 1941. The United States

was at war, and all patriotic able-bodied persons

rose to meet this challenge. Among those persons

was Robert G. Bensing, who, while in his teens,

enlisted for military service. After having

completed pilot training, Bensing was commissioned

an officer and given the responsibility as the

pilot and aircraft commander of a four engined

bomber. The United States at this time had no

reluctance to recognize Bensing's authority or

status as an office in command of the combat

crew including othe commissioned officers who

were very likely over 21 years of age. He was

ordered to perform combat missions and to be

responsible for the lives of the crewmen on board

his aircraft. Hypothetically speaking, Bensing's

peers who had passed the age of 21 years were

accruing time in grade that would considerably

enhance their promotion opportunity, while

Bensing was not, although simultaneously exposed

to the same hazards of combat. While not

involved in flying, he wore the same uniform

and was entitled to the same military courtesies

and privileges. The law then in existence pro-

vided for the same pay and other emoluments for

officers of the same grade and longevity in

service, regardless of age.

During the Korean Conflict, the Defendant again

found reason to rely upon Bensing for military

service. He was recalled to extended active duty.

With his combat experience, his recently acquired

college degree, and his professional engineering

certificate, Bensing was a prime and attractive

candidate to the United States when selecting

reserve officers to be appointed to the Regular

Air Force. On October 15, 1952, Bensing became a

17

second lieutenant in the Regular Air Force.

Regular officer status has traditionally and

historically meant more frequent and rapid

advancement in grade when compared with reserve

officers of similar experience and ability.

The inference has been made above that

the age requirement was included in the 1956

Act to benefit former United States Military

Academy cadets, who could not graduate before

reaching 21 years of age. Such protective de-

vices are not uncommon, and in some instances

are clearly delineated. In fact, the Legislative

History of the 1956 Act, as set forth in the

U.S. Code Congressional and Administrative News,

Yolume 2, 1956, at page 3369, discusses such a

protective device in Section 203(d), although

it is not directly related to this case:

(d) PROTECTION OF PROMOTION SENIORITY

OF ACADEMY GRADUATES WITH CON-

TINUOUS SERVICE.

The purpose of this subsection

is to insure the promotion seniority

of Academy graduates now on the

Regular list with regard to class-

mates who may receive Regular

appointments under this title.

It provides for two things:

(1) That no person who was a cadet

at one of the Academies may be ap-

pointed with a date of rank prior

to the date received by his class-

mates who were graduated and appointed

as officers, and (2) that no person

who was a cadet but did not graduate

from an Academy may be credited with

a longer period of promotion-list

service at the time of his appoint-

ment than is credited to his former

ad

18

classmates now on the Regular list.

This subsection is a restatement of

existing law.

The protection provided by Section 207 is

more subtle, since it purports to award pro-

motion credit to those over 21 rather than to

deprive those under 21 of equally deserved credit

which might allow them to move to higher rank

than a wartime academy cadet of the same age,

even though academy graduates have many well

recognized advantages in career progression over

other Regular officers.

Only in the direst emergency such as World

War II does the nation commission 19 year olds,

give them command over the lives of their com-

rades and the operation of complicated war

machines. Only a relatively few young men are

qualified for such service. No statute depriving

them of credit for such service can escape the

label “invidious, irrational, discriminatory,

and unconstitutional."

II

CERTIORARI SHOULD BE GRANTED BECAUSE: BENSING

WAS WRONGFULLY DENIED CONSIDERATION FOR PRO-

MOTION DUE TO AN ADMITTED ERROR IN HIS

MILITARY PERSONNEL RECORDS. SINCE HE WAS WOT

CONSIDERED, HE COULD NOT BE PROMOTED, AND THE

LOWER COURTS IMPROPERLY PLACED THE BURDEN OF

PROVING DAMAGES UPON BENSING.

The District Court and the Court of Appeals

committed error by denying Bensing's Claim for

damages as a result of his having been wrongfully

denied consideration for promotion due to an

admitted error in his military personnel records.

19

It is an admitted fact in the record that Bensing's

Promotion List Service Date was incorrect from

November 19, 1956 until January 18, 1961.

Bensing's PLSD was then changed from January 19,

1951, to September 19, 1950. The Defendant also

admitted that Bensing should have been eligible

for consideration for temporary promotion to the

grade of major in the secondary zone in the fiscal

year 1961. However, because of the erroneous

PLSD, Bensing was not considered for temporary

promotion to the grade of major in the secondary

zone until fiscal year 1962.

The District Court and the Court of Appeals

have erroneously ruled that in order for Bensing

to establish a claim for which relief can be

granted, he must bear the burden of proving damages

by showing that he was not promoted due to the

incorrect Promotion List Service Date. Because

of the complexity of the military promotion system,

it is virtually impossible for anyone but the

Defendant to carry this burden of proof. Exhaus-

tive efforts in pretrial discovery failed to elicit

much of the pertinent information from the

Defendant. The burden of showing lack of damage

should be upon the Defendant since such proof,

if it exists, is in the hands of the Defendant.

Further, the Defendant alone was responsible for

the failure of an absolute contingency upon which

promotion rested, namely, that Bensing's name be

submitted to the promotion board for consideration.

This failure standing alone should be sufficient

to shift any burden of proof from Bensing to the

Defendant.

Efforts to obtain statistics demonstrating

the effect of the admitted error, and the rare

nature of retirement as a major from the Air

Force under circumstnaces involving the quality

and quantity of service such as that performed by

20

Bensing, were unavailing, as revealed in the

answers provided to Plaintiff-Appellant's

interrogatories by the Defendant-Appellant during

pretrial proceedings.

Bensing's records were later corrected, but

there was no provision in regulation or other-

wise for an explanation to be provided *» sub-

sequent promotion boards which would ind.cate

that Bensing had not been considered by a pre-

ceding promotion board due to the incorrect

Promotion Service List Date. The practical

result was that Bensing would be viewed by a

promotion board as an officer who had not

been promoted by a prior promotion board, although

Bensing's military personnel records (at this

later date after the correction) would have

indicated consideration. Following this non-

selection after apparent, but non-existent,

promotion consideration in FY 1961, Bensing's

military personnel records were indelibly

"marked" in that his records would always

be mistakenly judged by all subsequent promo-

tion boards as those of an officer who, having

failed to perform on the same level as his con-

temporaries, should be judged with other non-

selected officers and with younger and less

experienced officers who later became eligible

for promotion.

III

CERTIORARI SHOULD BE GRANTED BECAUSE: IMMEDIATELY

UPON THE IMPLEMENTATION OF THE 1956 STATUTE,

RETROACTIVELY GRANTING PROMOTION CREDIT FOR WAR-

TIME SERVICE ONLY TO THOSE WHO WERE 21 YEARS OF

AGE DURING SUCH SERVICE, BENSING'S RELATIVE

POSITION FOR PROMOTION, HIS TIME-IN-GRADE, AND

HIS RANK DROPPED DRASTICALLY COMPARED TO THAT OF

HIS WARTIME CAREER CONTEMPORARIES WHO WERE 21

21

YEARS OF AGE DURING WORLD WAR II AND RECEIVED

THE RETROACTIVE PROMOTION CREDIT FOR WORLD WAR II

COMMISSIONED SERVICE WHICH BENSING WAS DENIED.

NO SUCH PROVISION WAS INCORPORATED IN THE 1947

ACT UNDER WHICH BENSING RECEIVED APPOINTMENT TO

A REGULAR COMMISSION IN 1972. THE 1947 ACT

PROVIDED CREDIT ONLY FOR COMMISSIONED SERVICE

PERFORMED AFTER THE PASSAGE OF THE ACT, A CLEARLY

CONSTITUTIONAL AND NONDISCRIMINATORY LEGISLATIVE

ENACTMENT EVEN THOUGH NO APPOINTMENT OR CREDIT

FOR PROMOTION PRIOR TO AGE 21 WAS PROVIDED.

NO RETROACTIVE GRANT OR DENIAL OF CREDIT FOR

SERVICE PERFORMED BEFORE THE PASSAGE OF THE ACT

WAS INCLUDED. BENSING'S CAREER WAS SHATTERED

BY THE 1550 RETROACTIVE DEPRIVATION OF RIGHTS,

PRIVILEGES AND PROPERTY, AND HIS CAREER CONTEM-

PORARIES MOVED INEXORABLY AHEAD IN CAREER? PRO-

GRESSION. THIS DISCRIMINATORY DEPRIVATION OF

PROMOTION CREDIT FOR WORLD WAR II SERVICE ALONE

WOULD HAVE PREVENTED NORMAL CAREER PROGRESSION.

WHEN COMBINED WITH THE ADMITTED ADMINISTRATIVE

ERROR AND THE EFFECT OF THE 1959 OFFICER GRADE

LIMITATION ACT (WHICH ALLOWED THE AIR FORCE TO

CONVERT PROMOTION CRITERIA BASED UPON "TIME-IN-

GRADE" TO A DUAL BASIS OF "PROMOTION LIST SERVICE

DATE" AND "TIME-IN-GRADE"). THE RESULT WAS

INEVITABLY THE TWO PASSOVERS FOR PROMOTION WHICH

REQUIRED HIS INVOLUNTARY EARLY RETIREMENT AS A

MAJOR AFTER MANY YEARS OF EXEMPLARY SERVICE TO

HIS COUNTRY IN WAR AND PEACE AS A COMMISSIONED

OFFICER IN THE ARMED FORCES.

How ridiculous it would have seemed if a

congressman in committee hearings preceding the

passage of the 1956 Act had said, "Well, obviously

we need to give these Regular officers promotion

credit for their wartime service as Reserve

officers, except of course if they were 21] years

of age. If they were under 21 they don't deserve

it, even if they were flying four engined combat

aircraft as aircrew commanders."

22

No one said this, of course, because such a

statement would be invidious, a patently arbi-

trary classification utterly lacking in rational

justification, and based upon a false and ir-

raticnal premise, namely, that an officer doesn't

deserve to be promoted with his career contem-

poraries because during the initial portion of

his wartime commissioned service he had not reached

the magic age of 21 years, even thouch he had been

granted a commission and given command of a four

engined bomber in combat. Such discrimination

would not have been considered rational during

wartime, nor was it more so in 1956; nevertheless,

this is precisely what was accomplished in 1°56 by

10 U.S.C. 8287. Congress somehow overlooked the

irrational nature of the legislation proposed

by the Air Force, which in effect provides that

reaching the age of 21 years so magically enhances

an officers value as to require its adoption as

an absolute standard, even retroactively, to

deprive an officer of deserved promotion credit

earned prior to his reaching that magical age.

Obviously, as in the 1947 Act, an age requirement

can and should be part of the criteria for appoint-

ment to a commission in the armed forces. Further-

more, if Congress in its wisdom decides, as it did

in 1947, that the requirement as to age should be

21 years for appointment to a regular commission,

no one could rationally argue that the requirement,

when applied only prospectively as in the 1947 Act,

is discriminatory, even though the present trend

in granting privileges and rights as well as

property is toward a younger age. But, to reiterate,

the retroactive deprivation of rights, privileges

and property, as in this case, is clearly an

unconstitutional discrimination.

The shattering effects of the Act, in all

likelihood not comprehended at the time of its

passage, destroyed Bensing's career. Until

23

the passage of the 1956 Act, his career had

moved regularly forward with his career con-

temporaries, those of his fellow wartime officers

who chose to make the service a career, espe-

cially after they were recalled to active duty

for the Korean Conflict as were Bensing anc many

of his fellow Reserve officers. Suddenly, with

the passage of the 1956 Act, Bensing was to

drop 14 months seniority on the promotion list.

As if this were not sufficient, the Air Force

erroneously computed his new seniority under

the Act, moving him back to a Promotion List

Service Date of January 19, 1951, instead of

the correct date of September 19, 1950. The

irreparable damage to his career provided by

the Act was compounded and aggravated by this

admitted administrative error.

During World War II, pilot trainees who

were not considered qualified for commissions

were given Flight Officer status similar to that

of Warrant Officers. Under then existing

congressional enactments providing for com-

missioning of Reserve officers, the Army Air

Corps chose to grant Bensing a commission.

Should anyone be heard to say, after the fact of

his outstanding wartime combat career, thal

the commission granted this nighly decorated

wartime combat crew aircraft commander was

somehow inferior to that of his classmates in

pilot training and his comrades in arms?

Congress has attempted to say so in 10 U.S.C.8287.

An analogy has been drawn, in arguments to

support this discriminatory grant of rights,

privileges and property, that armed forces

regular commissions are normally granted only

after the applicant reaches 2] years of age.

This has no pertinency to a retroactive grant.

A more appropriate analogy would be that of a

24

statute granting a veterans bonus, pension or

preference for wartime services to those who

were 21 years of age during the wartime service,

and denying the grant to anyone who performed the

identical wartime service while under the age

of 21. Clearly an unlawful discrimination,

analagous to the grant of promotion credit herein.

The lower courts in this case have reasoned,

citing appropriate precedents, that the due

process clause bars only patently arbitrary

classifications utterly lacking in rational

justification; that the discrimination herein is

not "invidious"; and that legislative classifi-

cations will be upheld if they are reasonable,

have a fair and substantial relation to the object

of the legislation and cause “all persons similarly

circumstanced" to be treated alike. We agree

wholeheartedly, but find it incomprehensible that

Be:ising's unwarranted loss of promotion standing

could be considered other than "invidious" or

likened to that of "all persons similarly cir-

cumstanced." These persons who were “similarly

circumstanced" can only be his career contempor-

aries, his classmates, his wartime fellow commis-

sioned officers, who received invaluable rights,

privileges and property which he was denied.

This unconstitutional statutory deprivation

must be struck down, without further attempts to

cloud its true identity, as an irrational,

unlawful, unwarranted and unconstitutional age

discrimination which has, for too many years and

without due process, deprived Bensing of valuable

rights, privileges and property.

25

CONCLUSION

It is indeed ironic that Bensing, having

left civilian pursuits on two occasions to wear

the uniform of the United States and repeatedly

to expose himself to personal hazards through

three periods of military conflict, was denied

promotion consideration along with officers with

whom he had shared combat experiences. And even

more ironic was the fact that Bensing's selec-

tion to become a Regular officer effectively

denied him credit for 14 months of the most

hazardous duty experienced by members of the

armed service. The effect of the 1956 Act

granting Bensing's career contemporaries sub-

stantial precedence over him for purposes of

career advancement, compounded and aggravated

by the admitted error in recomputing his

Promotion List Service Date under the 1956 Act,

was to terminate his career prematurely, to his

considerable damage. His loss of relative

position for promotion consideration under the

1956 Act must be characterized as "invidious".

Combined with the additional loss of standing

caused by the admitted error, the effect was

devastating and the predictable result occurred.

Certiorari should be granted.

Respectfully submitted,

Robert 8. Booz

Counsel for Petitioner-Appe! lant

12505 W. 32nd Avenue

Wheat Ridge, Colorado 80033

Telephone: 303-442-0163

la

APPENDIX A

2a

Robert G. Bensing (Bensing) appeals the

dismissal of his complaint and cause of action

for deciaratory judgment, filed pursuant to

PUBLISH 28 U.S.C.A. §2201 and 28 U.S.C.A. §1346.

UNITED STATES COURT OF APPEALS Bensing sought to have 10 U.S.C.A. §8287

declared unconstitutional insofar as it denied

TENTH CIRCUIT him promotion or retirement credit for commis-

sioned military service performed before his

: 2lst birthday. He also sought damages for the

No. 76-1125 recordation of an erroneous promotion list

. service date in his personnel file which pre-

cluded his being considered for a promotion for

one year. The facts are not in dispute and will

ROBERT G. BENSING, Appeal from the be developed insofar as necessary for the dis-

Plaintiff-Appel lant, United States position of the issues presented.

)

)

Vv. ) District Court

)

)

)

for the Bensing enlisted in the armed forces in

UNITED STATES OF AMERICA, District of Colorado February, 1943. He served on active duty until

November, 1945, during which he accumulated

Defendant-Appel lee. (D.C. No. C-5181)

approximately 14 months of commissioned service

prior to his 21st birthday. This accumulated

service could not be considered for promotion

or retirement credit under Section 8287, which

Submitted: January 26, 1977 provides, in part:

(a) For the purpose of determining

John P. Hartman of Booz, Hartman and Lee, Wheat grade, position on a promotion

Ridge, Colorado, for Plaintiff-Appel lant: list, seniority in his grade in

; : ; the Regular Air Force, and eli-

Jerre W. Dixon, Assistant United States Attorney, gibility for promotion, a person

(James L. Treece, United States Attorney, on the ...shall be credited, at the time

brief), Denver, Colorado, for Defendant-Appellee. of his appointment...

(1) With the active commissioned

Before McWILLIAMS, BARRETT and DOYLE, Circuit service in the armed forces that

. he performed after becoming 21

Judges:

ye.rs of age and before his

BARRETT, Circuit Judge appointment ;

Under Section 8287, Bensing clearly could

not receive credit for promotion or retirement

for commissioned service accumulated prior to his

21st birthday.

3a

Bensing was recalled into active duty in

April, 1951. He served continuously until his

involuntary retirement in October, 1971, after

he had attained the rank of major. During this

period Bensing was erroneously assigned a

promotion list service date of January 19, 1951,

when in fact his correct promotion list service

date was September 19, 1950. As a result of

this error, Bensing was first considered for

selection to major in 1962 rather than in 1961.

Bensing petitioned that Section 8287 be

declared unconstitutional insofar as it deprived

him of credit for commissioned service performed

prior to his 2list birthday; that he be promoted

to the permanent grade of lieutenant colonel with

date of rank, back pay, and allowances restored

retroactively in accordance with the correction

of the recordation of the erroneous promotion

list service date; and that he be recalled to

active duty at the grade of lieutenant colonel.

Appellee United States responded that

Section 8287 was constitutional in that it was

enacted to allow reserve officers to obtain

benefits they could not obtain in the reserves,

including crediting their pre-21 service time

for pay, retirement, and longevity. The United

States concedes that an administrative error in

the recordation of Bensing's promotion list

service date delayed his being considered for the

rank of major until 1962, when in fact he should

have been considered in 1961.

In dismissing the action, the trial court

concluded as a matter of law that Bensing had

failed to establish that in the absence of the

administrative error in the recordation of his

promotion list service date he would have been

promoted in 1961. The court also concluded tnat

Section 8287 did not create an invidious dis-

crimination violative of Bensing's constitutional

rights.

4a

On appeal Bensing contends that (1) Section

8287(a)(1) violates the Due Process Clause of the

Fifth Amendment by failing to credit active

commissioned service performed prior to one's

becoming 21 years of age, and (2) he was wrong-

fully denied consideration for promotion due

to an admitted error in his military records.

I.

Bensing contends that the failure of

Section 8287 to give credit, for purposes of

promotion and retirement, for commissioned

service performed prior to the age of 21, is

arbitrary and unreasonable in that it bears

no reasonable relation to any legitimate

governmental objective. Bensing argues that there

is no rational basis for treating people differ-

ently for purposes of promotion and retirement,

merely because of age difference, when they are

performing identical services for their country.

Bensing states that age classifications “may be

constitutional where they reflect some real

difference."

In rebuttal the United States points out

that Section 8287 was enacted to allow reserve

officers to obtain benefits they would not have

obtained in the reserve ranks. It also pro-

vides a uniform avenue of computing seniority in

grade for regular members of the armed forces, and

as such cannot be considered an arbitrary class-

ification of individuals.

We hold that the trial court properly found

Section 8287 to be constitutional and valid. The

Due Process Clause bars only patently arbitrary

classifications utterly lacking in rational

justification. Flemming v. Nestor, 363 U.S. 603

(1960). Legislative classifications will be

upheld if they are reasonable, have a fair and

substantial relation to the object of the

legislation, and cause “all persons similarly

5a

circumstanced" to be treated alike. Johnson vy.

Robinson, 415 U.S. 361 (1974). Statutory classi-

fications will be upheld if they are reasonable,

have a fair and substantial relation to the object

of the legislation, and cause “all persons

Similarly circumstanced" to be treated alike.

Johnson v. Robison, 415 U.S. 361 (1974). Statu-

- tory classifications are set aside only if no

grounds can be conceived to justify their exis-

tence. McDonald v. Board of Election Commis-

sioners of Chicago, 394 U.S. 802 (1969); McGowan

v. Maryland, 366 U.S. 420 (1961). Imperfect

classifications do not offend the Constitution

simply because in practice they result in some

inequality. Dandridge v. Williams, 397 U.S. 471

(1970). See also: Jefferson v. Hackney,

406 U.S. 535 (1972); Gillette v. McNichols,

517 F.2d 888 (10th Cir. 1975); Leggroan v. Smith,

498 F.2d 168 (10th Cir. 1974).

Due process is inherently flexible:

...Besides, what is due process of law must

be determined by circumstances. To those

in the military or naval service of the

United States the military law is due

process.

Reaves v. Ainsworth, 219 U.S. 296 (1911),

at 304.

A court must be ever alert to refuse to sit

as a super-legislature to weigh the wisdom of

legislation, or to invoke the Due Process Clause

So as to strike down laws or regulations simply

because the Court may believe that they are

unwise or improvident. Ferguson vy. Skrupa,

372 U.S. 726 (1963).

Military age classifications are necessarily

constitutional:

6a

...he claims a violation of the equal

protection and due process clauses of the

Constitution in that the Selective

Service Act does not conscript men in the

war industries which profit by war, and

exempts men under 18%; and over age 26.

This issue has been answered against

appellant's contentions. Bolling v. Sharpe,

347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed 884

(1954); Goesaert v. Cleary, 335 U.S. 464,

69 S.Ct. 198, 93 L.Ed. 163 (1948);

Bertelsen v. Cooney, 213 F.2d 275

(5th Cir. 1954), cert. denied 348 U.S. 856,

75 S.Ct. 81, 99 L.Ed. 674. The equal

protection clause, as provided in the

Fourteenth Amendment, or as implied in

the due process clause of the Fifth

Amendment, merely requires that all

legislative classifications have a reason-

able basis and that everyone placed within a

classification be treated similarly. ...

Smith v. United States, 424 F.2d 267

(9th Cir. 1970), at 268-269.

Il.

Bensing contends that he was wrongfully

denied consideration for promotion due to the

recordation of an erroneous promotion list

service date in his military personnel records.

This point is conceded by the United States.

Bensing also contends that the trial court erred

in ruling that in order for him to state a claim

upon which relief could be granted, he must

establish that he was not promoted due to the

incorrect promotion list service date. Bensing

presents this contention in summary fashion,

without cited authorities or cogent argument and

without a showing that but for the error he would

have been promoted at an earlier date.

7a

8a

We hold that the trial court properly con- APPENDIX B

cluded that Bensing had failed to sustain his

burden of establishing damages. Bensing was

afforded an administrative review by the Secretary

of the Air Force acting through the Air Force

Board for the Correction of Military Records. We 7

cannot supersede the denial of their relief. As IN THE UNITED STATES DISTRICT COURT

noted in Orloff v. Willoughby, 345 U.S. 83 (1953):

FOR THE DISTRICT OF COLORADO

We know that from top to bottom of

the Army the complaint is often made, and

sometimes with justification, that there is ROBERT G. BENSING, )

discrimination, favoritism or other objec- )

tionable handling of men. But judges Plaintiff, )

are not given the task of running the Army. ) Civil Action

The resporsibility for setting up channels V. . ) No. C-5181

through which such grievances can be con- )

sidered and fairly settled rests upon UNITED STATES OF AMERICA,)

the Congress and upon the President of the )

United States and his subordinates. The Defendant. )

military constitutes a specialized community

governed by a separate discipline from that

of the civilian. Orderly government

requires that the judiciary be as scrupu-

lous not to interfere with legitimate

Army matters as the Army must be scrupu-

lous not to intervene in judicial matters.

While the courts have found occasion to

determine whether one has been lawfully

inducted and is therefore within the

jurisdiction of the Army and subject to

its orders, we have found no case where

this Court has assumed to revise duty

orders as to one lawfully in the service.

FINDINGS OF FACT, CONCLUSIONS

OF LAW AND ORDER

APPEARANCES:

For the Plaintiff: John P. Hartman

12505 West 32nd Avenue

Wheatridge, Colorado 80033

For the Defendant: Jerre W. Dixon

Assistant U.S. Attorney

323 United States

345 U.S., at 93-94, Bie. nA

: Drawer 3615

WE AFFIRM Denver, Colorado 80202

9a

FINDINGS OF FACT

At the conclusion of the evidence on Novem-

ber 17, 1975, the Court stated its findings of

fact into the record and requested counsel to file

briefs on the Plaintiff's claim that Title 10,

United States Code, Section 8287, deprives the

Plaintiff of his rights under the Federal Con-

stitution.

The Court appends hereto a transcript of its

findings of fact entered in the record on Novem-

ber 17, 1975 as the findings of fact in this

action.

The Court has received and considered the

briefs of the parties dealing with Plaintiff's

claim that Title 10, United States Code, Section

8287, violates the Plaintiff's right to equal

protection of the law under the Federal Constitu-

tion. The Court is now fully advised and makes

the following conclusions of law:

CONCLUSIONS OF LAW

Upon the facts as found by the Court, the

Court concludes as a matter of law:

1. That the Plaintiff failed to sustain the

burden of proving damages resulting from the

erroneous entry made on Plaintiff's record by

Defendant on November 19, 1956, and the Plaintiff

is not entitled to recover thereon.

2. That Title 10, United States Code,

Section 8287, has a rational basis for the dis-

crimination therein as between those who had

service as commissioned officers prior to the ege

of 21 years, and those commissioned officers who

had no such service prior to age 21 years, and the

discrimination therein is not “invidicus", and

10a

does not and did not violate the Plaintiff's

Federal Constitutional rights.

3. That judgment of dismissal of the

Complaint herein and all claims set forth

therein should be entered.

It is, therefore,

ORDERED that final judgment of dismissal

of the Complaint and all claims therein shall

forthwith enter.

ENTERED this 23rd day of December, 1975.

BY THE COURT:

HATFIELD CHILSON, Judge

United States District Court

lla

APPENDIX C

FEDERAL STATUTES, RULES

AND REGULATIONS INVOLVED

Title 10, § 8287, Section 207 of the Regular

Officer Augmentation Act of 1956.

Commissioned officers - Original Appointment -

Service Credit.

(a) For the purpose of determining grade,

position on a promotion list, seniority in

his grade in the Regular Air Force, and

eligibility for Promotion, a person

originally appointed in a commissioned grade

in the Regular Air Force, other than a person

appointed with a view to designation as a

medical or dental officer or as an Air Force

nurse and medical or dental officer or as an

Air Force nurse or medical specialist, shall

be credited, at the time of his appointment,

(1) with the active commissioned

service in the armed forces that

he performed after becoming 21

years of age and before his

appointment. ...

Section 506 (c) of the Armed Forces Regular

Officer Augmentation Act of 1947, (repealed

by the 1956 Act, above).

(c) For the purpose of determining grade,

position on promotion list, permanent arade

seniority, and eligibility for promotion,

- —

12a

each person initially appointed and commis-

sioned as officer in tiie Regular Army shall,

at time of appointment, be credited with an

amount of service equivalent to the total

period of active Federal service performed

after attaining the age of twenty-one years

as a commissioned officer in the Army of the

United States or any component thereof sub-

sequent to December 31, 1947, and prior to

such appointment...

Legislative History of Section 203(d) Regular

Officers Augmentation Act of 1956, U.S. Code

Congressional and Administrative News, 1956,

at page 3369.

(d) PROTECTION OF PROMOTION SENIORITY OF

ACADEMY GRADUATES WITH CONTINUOUS SERVICE

The purpose of this subsection is to

insure the promotion seniority of

Academy graduates now on the Regular

list with regard to classmaces who may

receive Regular appointments under this

title. It provides for two things:

(1) That no person who was a cadet at

one of the Adademies may be appointed

with a date of rank prior to the date

received by his classmates who were

graduated and appointed as officers, and

(2) that no person who was a cadet but

did not graduate from an Adademy may be

credited with a longer period of pro-

motion-list service at the time of his

appointment than is credited to his _

former classmates now on the Regular List.

This subsection is a restatement of exist-

ing law.

13a

Legislative History of 10 U.S.C. 8202,

1959 Officer Grade Limitation Act, U.S.

Code Congressional and Administrative News,

1959, at page 2694.

CitANGE IN TEMPORARY PROMOTION

SYSTEM TO THE GRADE OF “AJOR

The additional vacancies authorized under

this legislation will afford the Air Force an

opportunity for revising administratively its

present criteria for consideration to the

grade of temporary major. Up until the pre-

se1t time officers have been placed in the

zone for consideration for temporary major

based upon the time in their current grade.

The time-in-grade criteria was considered by

the Air Force to be the only method whereby

large numbers of Reserve officers could

compete with Regular officers.

With the enactment of this legislation,

the Air Force would thereafter provide that

consideration for promotion to temporary

major will be based upon total active com-

missioned service rather than time in grade.

Section 27, Public Law 85-861, 1957,

Amending 10 U.S.C. 3287, 8888 and 8927.

Notwithstanding any other provision of

law, the years of service credited to an

officer of the Regular Air Force on July 20,

1956, for the purposes of Section 8287, 8888

(2) (A)-(C) and (E)-(G), and 8927(a) (1)-(3)

and (5)-(7) and (b)(2) of Title 10, United

States Code (this section and sections

8888(2) (A)-(C), (E)-(G) and 8927(a) (1)}-(3),

(5)-(7), (b)(2) of this title), may be

increased but not by more than two years,

urder regulations to be prescribed by the

Secretary of the Air Force.

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