Petition — Bergen v. United States

Supreme Court, U. & hit

-— FILED - 4

AUG 15 1977 |

MICHAEL RODAK, JR., CLERK

—e

IN THE

Supreme Court of the United States

: O77 257 +

LT. COL. JOSEPH B. BERGEN

Petitioner,

V.

THE UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

OF COUNSEL: JOSEPH B. BERGEN

ATTORNEY FOR PETITIONER

JACK E. MILLER

122 East Oglethorpe Avenue Columbia Square Law Offices

Savannah, Georgia 31401 125-127 Habersham Street

Savannah. Georgia 31401

Telephone: (912) 233-4141

Telephone: (912) 233-8001

IN THE

Supreme Court of the United States

No.

LT. COL. JOSEPH B. BERGEN

Petitioner,

Vv.

THE UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

OF COUNSEL: JOSEPH B. BERGEN

ATTORNEY FOR PETITIONER

JACK E. MILLER

122 East Oglethorpe Avenue Columbia Square Law Offices

Savannah, Georgia 31401 125-127 Habersham Street

Savannah, Georgia 31401

Telephone: (912) 233-4141

Telephone: (912) 233-8001

VI.

VII.

Vill.

SUBJECT INDEX

Page

PON 6h b46 0% cp vid dedewewsccecs 1

IEEE SARS Oiy bin 6 66 svdd cee ccccccee 1

QUESTIONS PRESENTED FOR REVIEW........ 1

STATUTORY AND REGULATORY PROVI-

Ds cst rbes obsccbeiseccccccs 2

STATEMENT OF THE CASE...........200e00- 5

(a) Facts Material to the Consideration of the

EEE OS Pe TE 5

(b) Basis for Federal Jurisdiction in the Court

Ee os tee octets oeee es 10

ARGUMENT AMPLIFYING REASONS FOR

PPE UE 60 6 doc cccsctcccccces 11

1. Petitioner had a legal right to have been

considered for promotion prior to

2. The Court of Claims erroneously deter-

mined this case on the basis of whether the

Air Force Board for Correction of Military

Records acted arbitrarily, capriciously, or

against the substantial weight of evidence

rather than on basis of legalerror .......... 16

ET Lv ewltewcs« ctatedwescsiceces 21

ee eee er ere 23

1. IE sind obi Wk eb dn-e béwws eX NO 23

2. Motion to Suspend and Order thereon...... 29

3. Order Terminating Suspension ........... 30

IX.

XI.

APPENDIX B..... 2.22200 ccccccccccccceces 32

1. Ais Poses REGmGEE .... cccctvecsiesdeses 32

APPTENGAX C os cacccced<dncnventawencuees 39

1. Military Airlift Command Order ......... 39

APPEIENXA BD. cccvvcovwn savecevcacevecene 40

1. Affidavits and Statements .............. 40

PETITION FOR WRIT OF CERTIORARI

I

OPINION DELIVERED IN COURT BELOW

The petitioner, LIEUTENANT COLONEL JOSEPH B.

BERGEN, now a Retired Reserve Air Force Officer, who was

formerly an Active Reserve Officer, respectfully seeks the

issuance of a Writ of Certiorari to review the summary

judgment in favor of the government and against him, and the

opinion of the United States Court of Claims entered on cross

motions for summary judgment in this proceedings on April

20, 1977, Docket No. 35674 in the Court of Claims, uron

which the petitioner sought a rehearing by motion filed April

29, 1977, that was denied by order filed May 27, 1977. This

opinion of the Court of Claims as yet has not been reported.

Such Judgment and Opinion and the Order denying rehearing

are reproduced in Appendix A to this petition.

i

JURISDICTION

The within petition for certiorari is being filed less than

ninety (90) days from the aforesaid order entered on May 27,

1977, denying rehearing of the judgment of the United States

Court of Claims entered on April 20, 1977, said motion for

rehearing having been timely filed on April 29, 1977. The

jurisdiction of this court is invoked under Title 28 U.S.C.

§/491; Title 10 U.S.C. §1552; Court of Claims Rules, Rule

131(c), and Rule 149(a), Title 28 U.S.C.A., as the above

judgment and opinion, following the denial of the Motion for

Rehearing, became final by its terms.

Ul

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Court of Claims had the jurisdiction to

hold and correctly held that an Air Force Board for Corrections

of Military Record did not act arbitrarily, capriciously, or

against the substantial weight of the evidence, in denying

petitioner his application for change in the date of his

promotion to Lieutenant Colonel so as the entitle petitioner to

promotion to and pay of a Lieutenant Colonel prior to the date

of his actual promotion to Lieutenant Colonel, and so as to

thereafter make petitioner eligible for consideration for

promotion to and pay of a Colonel prior to involuntarily

retiring petitioner from the Active Air Force Reserve at the con-

clusion of twenty-eight (28) years commissioned service since

petitioner was not on a recommended list for Colonel

promotion at the expiration of the 28 years commissioned

service; and,

2. Whether the United States Court of Claims had the

jurisdiction to hold and properly based its opinion in this case

on whether the Air Force Board of Corrections of Military

Records acted arbitrarily, capriciously, or against substantial

weight of evidence rather than on whether there existed legal

error in the actions of the Air Force which caused the delay in

petitioners promotion to Lieutenant Colonel, pursuant to

Statute and Air Force Regulations and Manuals, and of said

Board in denying the application of petitioner for correction of

his military record to reflect the change in the date of his

promotion to Lieutenant Colonel, all contrary to the holding of

the Supreme Court of the United States in United States v.

Testan, 424 U.S. 392, 47 L.Ed. 2nd 114, 96 S.Ct. 948, decided

March 2, 1976.

Iv

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

1. Title 28 U.S.C. §1491, provides in pertinent part, as

follows: ‘‘The Court of Claims shall have jurisdiction to render

judgment upon any claim against the United States founded

either upon the Constitution, or any Act of Congress, or any

regulation of an executive department, or upon any express or

implied contract with the Unitec States, or for liquidated or

unliquidated damages in cases not sounding in tort. ... To

provide an entire remedy and to complete the relief afforded by

the judgment, the court may, as an.incident of and collateral to

any such judgment, issue orders directing restoration to office

or position, placement in appropriate duty or retirement status,

and correction of applicable records, and such orders may be

issued to any appropriate official of the United States. In any

case within its jurisdiction, the court shall have the power to

remand appropriate matters to any administrative or executive

2

body or official with such direction as it may deem proper and

just.”” .

2. Title 10 U.S.C. §8363(a), provides, in pertinent part, as

follows: ‘‘An officer in a reserve grade above second lieutenant

may not be considered for promotion, or examined for Federal

recognition in the next higher grade, until he completes the

following number of years of service, computed under section

8360(a) of this title, in his current reserve grade: (4) Lieutenant

Colonel — three years.’’

3. Title 10 U.S.C. $8848, provides, in pertinent part, as

follows: ‘* .. . each officer in an active status in the reserve

grade of . . . lieutenant colonel who is not on a recommended

list for promotion to reserve grade of colonel shall, thirty days

after he completes 28 years of service computed under section

8853 of this title — (1) be transferred to the retired service,

4. Title 10 U.S.C. §8366(d), provides, in pertinent pari, as

follows: ‘‘An officer whose reserve grade is ... major and

whose name is on a recommended list may be promoted at any

time to filla vacancy,...’”’.

5. Air Force Manual 35-3, Ch. 23, §23-4, Table 23-1,

provides, in pertinent part, as follows: ‘‘NOTE: A recom-

mendation may be submitted at any time. However, for an of-

ficer to be considered by a specific selection board, the recom-

mendation for his promotion must reach ARPC [Air Force

Reserve Personnel Center] no later than 30 days before the

Board is scheduled to convene.’’ A verbatim reproduction of

said Table is set out in Appendix B to this petition.

6. Air Force Manual 35-3, Ch. 23, 423-7, (implementing

Title 10 U.S.C. §8366(d) ), provides, in pertinent part, as

follows:

‘*a. If the name of an officer recommended for promotion

under this chapter is already on a recommended list as a result

of selection under 421-3a, ARPC [Air Reserve Personnel Cen-

ter] will not report his name or the vacancy to the selection

board for action. An officer in this category is promoted as

follows: (1) If he is the only candidate to fill the vacancy or if

none of the other candidates are on a recommended list, he will

3

be promoted. No further action is taken on the other can-

didates.”’

**b. The promotion of an officer in the category specified

in a above will take place one day before the promotion of of-

ficers not on a recommended list who are selected by the selec-

tion board to fill ... mobilization or augmentation grade

vacancies.’’ A verbatim reproduction of said Paragraph is set

out in Appendix B to this petition.

7. Air Force Manual 35-3W, Ch. 60, 460-5, relating to

Announcement of Selections, provides, in pertinent part, as

follows: ‘‘After a report of proceedings has been approved by

the Secretary of the Air Force . .. ARPC [Air Reserve Per-

sonnel Center] furnishes major commands with this in-

formation on AFRES [Air Force Reserve] officers not on EAD

{Extended Active Duty]. . . . Unless otherwise instructed, com-

manders may immediately release the information received

from. . . ARPC.”’ A verbatim reproduction of said Paragraph

is set out in Appendix B to this petition.

8. Title 10 U.S.C. §1552, provides, in pertinent part, as

follows: ‘‘The Secretary of a military department, under

procedures established by him and approved by the Secretary of

Defense, and acting through boards of civilians of the executive

part of that military department, may correct any military

record of that department when he considers it necessary to

correct an error or remove an injustice... ’’.

9. Title 10 U.S.C. §8851, provides, in pertinent part, as

follows: ‘‘After June 30, 1960, ... an officer in the active

Status in the reserve grade of colonel . . . shall, 30 days after he

completes 30 years of service computed under §8853 of this title

or on the fifth anniversary of the date of his appointment in the

grade in which he is serving, whichever is later — (1) be trans-

ferred to the retired reserve... ’”’.

10. Title 5, U.S.C. §5596(b), provides, in pertinent part,

as follows: ‘‘An employee of an agency who, on the basis of an

administrative determination or a timely appeal, is found by an

appropriate authority on the applicable law or regulation to

have undergone an unjustified or unwarranted personnel action

that has resulted in the withdrawai or reduction of all or part of

4

the pay, allowances, or differentials of the employee — (2) for

all purposes, is deemed to have performed service for the agen-

cy during that period... ”’

11. Court of Claims Rules, Rule 149(a), Title 28

U.S.C.A., provides, in pertinent part, as follows: ‘‘At the

request of a party or on its own motion, the court may in any

case within its jurisdiction by order remand appropriate mat-

ters to any administrative or executive body or official, with

such direction as may be deemed proper and just.’’

12. Court of Claims Rules, Rule 13l1(c), Title 28

U.S.C.A., provides, in pertinent part, as follows: ‘‘(2) In any

case, . . . the court, upon entering judgment that a party is en-

titled to recover, may reserve determination of the amount of

the recovery for further proceedings.’’.

V *

STATEMENT OF THE CASE

(a) Facts Material to the Consideration of the Questions

Presented.

The petitioner is a Judge Advocate Retired Reserve Air

Force Officer, holding the rank of Lieutenant Colonel, who

was involuntarily retired on September 29, 1972, when he

reached maximum commissioned service for retention in the

Active Reserve (28 years), under the provision of Title 10

U.S.C. §8848.

Prior to this retirement, petitioner on June 10, 1972, filed

an Application for Correction of Military Records, under the

provisions of Title 10 U.S.C. §1552, supplemented on June 22,

1972, and on June 29, 1972, and July 3, 1972.

The Executive Secretary of the Air Force Board for

Correction of Military Records, by letter dated February 23,

1973, advised the petitioner that the Board found the foregoing

application failed to establish a showing of probable error or of

injustice in the case presented by the petitioner.

5

The petitioner, by letter dated April 13, 1973, requested a

reconsideration by the Air Force Board for Correction of

Military Records of this unfavorable decision, on the grounds

that the opinion rendered by the staff did not conform to Air

Force Manual 35-3, Ch. 23, 423-7, implementing Title 10

U.S.C. §8366(d), as also claimed in the Application.

The Air Force Board of Correction of Military Records

advised petitioner by letter dated April 24, 1973, that his ap-

plication for reconsideration and hearing thereon was denied.

The petitioner, thereafter, on September 27, 1974,

following continued, but futile, personal efforts in the Air

Force chain of command, filed in the United States Court of

Claims a petition seeking judgment against the United States

directing that the Secretary of the Air Force submit his name to

Congress for promotion to Colonel or, in the alternative, his

name be submitted to the next Colonel promotion board for

consideration and that petitioner receive all pay, allowances,

rights and privileges commensurate with such grade, as set out

infra in this petition.

The uncontested pleadings and exhibits attached thereto in

the form of military records of petitioner, affidavits and Air

Force orders, filed in support of petitioner’s Motion for Sum-

mary Judgment, show that petitioner was selected by a

promotion board that met on February 3, 1969, to be promoted

to Lieutenant Colonel in the United States Air Force Reserve,

that ordinarily would have been effective as an overall-vacancy

promotion on April 4, 1970. An order, that is reproduced in

Appendix C of this petition, was cut at Headquarters, Military

Airlift Command, Scott Air Force Base, Illinois, directing the

reserve unit to which petitioner was assigned in June of 1969,

which was Charleston Air Force Base, South Carolina, to

notify petitioner on June 2, 1969, of his selection which, when

treated as an overall-vacancy in-sequence promotion, would

have been effective as agreed and fixed by the Air Force and

determined by the Court of Claims on April 4, 1970. But, if

petitioner had been able to fill a Lieutenant Colonel

Mobilization Augmentation Grade Vacancy after this selection

and before April 4, 1970, petitioner would have been promoted

earlier, that is, out-of-sequence, automatically and immediately

to Lieutenant Colonel under the provisions of Title 10 U.S.C.

§8366(d), implemented by Air Force Manual 35-3, Ch. 23, 423-

7.

6

Headquarters, Military Airlift Command, Scott Air

Force Base, Illinois, however, did not send out this overall-

vacancy promotion notice to petitioner’s reserve unit at

Charleston Air Force Base, South Carolina, until June 10, 1969

(8 days later), and when that delayed order was received at

Charleston Air Force Base, the Reserve Affairs Non-

Commissioned Officer-in-Charge was on military leave that ex-

tended to after the 4th of July holidays. See Affidavit of Staff

Sergeant (now Master Sergeant Prince Tucker), dated June 22,

1972, that is reproduced in Appendix D to this petition. As a

result of this additional delay, petitioner was not notified of his

promotion selection to Lieutenant Colonel until July 7, 1969, a

week after June 30, 1969, the agreed date fixed by the Air Force

and determined by the Court of Claims that petitioner must

have been promoted to Lieutenant Colonel in order to be con-

sidered for promotion to Colonel by a Colonel Promotion

Board that convened on July 10, 1972, prior to petitioner

reaching 28 years commissioned service on September 29, 1972.

The result of these procedural delays by the Air Force was

that petitioner was not reassigned to Homestead Air Force

Base, Florida, until August 5, 1969, to fill an available

Lieutenant Colonel Mobilization Augmentation Grade Vacan-

cy that was being held for petitioner since May of 1969, a

vacancy to which petitioner could have been transferred within

two days (Affidavit of Master Sergeant Tucker, dated May 12,

1976, reproduced in Appendix D) and which would have

allowed petitioner to have been promoted to Lieutenant

Colonel prior to June 30, 1969. As shown in another Affidavit

of Master Sergeant Tucker, dated December 3, 1976,

reproduced in Appendix D to this petition, petitioner himself

waited until August 1969 to be transferred to Homestead Air

Force Base after the crucial June 30, 1969 date passed as a mat-

ter of choice so as to conveniently complete a portion of his

remaining inactive duty training for that fiscal year at nearby

Charleston Air Force Base. Petitioner resides at Savannah,

Georgia, approximately 130 miles from Charleston, S. C.

Homestead, Florida is approximately 600 miles from Savan-

nah, Georgia.

inasmuch as petitioner, therefore, was not in grade as a

Lieutenant Colonel prior to June 30, 1969, and his name, con-

sequently, was not submitted to the July 10, 1972 Colonel

Promotion Board prior to petitioner reaching his 28 years com-

7

missioned service, petitioner was denied the opportunity to

meet this Colonel Board and thus denied the opportunity of

being selected for promotion to Colonel before the expiration

of 28 years commissioned service that ultimately resulted in

petitioner being involuntarily put in the Retired Reserve.

Petitioner also was not promoted to Lieutenant Colonel until

April 4, 1970 to fill an overall-vacancy in the Air Force and was

thus denied promotion to and pay of a Lieutenant Colonel

from June 29, 1969, to April 4, 1970, while in the Active Re-

serve.

The government received an Affidavit dated December 2,

1974, from Mr. Neil K. Hartman, Chief, Officer Promotion

Branch, Promotion and Selection Division, Directorate of Per-

sonnel Actions, Air Reserve Personnel Center, Denver,

Colorado, reproduced in Appendix D to this petition, following

the filing of the petition in the United States Court of Claims,

at which time the government, with the consent of the

petitioner, moved the Court of Claims to suspend the

proceedings in said court with the request that said proceedings

be referred back to the Air Force Board of Correction of

Military Records for another reconsideration of petitioner’s

claim (the Motion and Order thereon filed December 30, 1974,

are reproduced in Appendix A to this petition), as this Affidavit

recited that a Lieutenant Colonel Unit Vacancy Board

(Mobilization Augmentation Grade Vacancy Board) met on

June 19, 1969, and if an individual such as petitioner was on a

previous list recommending that individual be promoted from

Major to Lieutenant Colonel, he would have been promoted

automatically, without going before the board, and that

promotion would have been on June 29, 1969. A verbatim

reproduction of this Affidavit is set out in Appendix D to this

petition.

Thereafter, the Executive Secretary of the Air Force Board

of Correction of Military Records, by letter dated April 22,

1975, again advised petitioner that the Board was not going to

change its prior adverse decision against petitioner, and this

suspension was then terminated by Order of the Court of

Claims, filed June 23, 1975. This order is reproduced in Ap-

pendix A to this petition.

An amendment to the Court of Claims petition, dated

June 10, 1975, was filed by petitioner to recite these new facts,

discovered by the government to the effect that a Lieutenant

Colonel Unit Vacancy Board (Mobilization Augmentation

Vacancy Board) met on June 19, 1969, and if an individual,

such as petitioner, was on a previous promotion list recom-

mending that individual to be promoted from Major to

Lieutenant Colonel, he would have been promoted

automatically without going before the Board, and that

promotion would have been effective one day earlier than June

30, 1969, which would have been on June 29, 1969.

Had petitioner been promoted on June 29, 1969, he would

have been in grade as a Lieutenant Colonel and receiving pay as

a Lieutenant Colonel from that date to April 4, 1970, when he

was ultimately promoted to fill an overall-vacancy, and he also

would have been in grade for the required period that would

have made him eligible for consideration for promotion to

Colonel by the July 10, 1972 Colonel Promotion Board prior to

petitioner reaching his 28 yedrs commissioned service on Sep-

tember 29, 1972, that otherwise would require (and did result

in) petitioner’s forced retirement as a Lieutenant Colonel.

The record in this case shows that the Officers Efficiency

Reports (OERs) written on petitioner were the highest a

Lieutenant Colonel could receive, with these OERs having ad-

ditional endorsements by the Commanding General at

Charleston Air Force Base and the Wing Commander at

Homestead Air Force Base, specifically recommending

petitioner, without qualification, for promotion to Colonel. In

addition, Headquarters, USAF, directed a Special OER to be

written on petitioner in July 1972, on the premise that the re-

cords of the petitioner were going to be corrected ad-

ministratively at the Air Force Reserve Personnel Center, Den-

ver, Colorado, so as to allow petitioner to meet the July 10,

1972 Colonel Promotion Board.

The Air Force Reserve Personnel Center, however, deter-

mined that only the Air Force Board for Corrections: of

Military Records could make this correction, and since this

consideration by that board did not take place prior to

petitioner reaching 28 years commissioned service, petitioner

was then put in the Retired Reserve.

9

The petitioner contends that this injustice, that constituted

legal error, caused by the procedural delay of the Air Force in

notifying him of his selection for promotion to Lieutenant

Colonel can only be corrected by the entire matter being re-

manded to the Secretary of the Air Force for corrective action,

that would include compensating petitioner for the difference

of pay between a Major and a Lieutenant Colonel during the

period of June 29, 1969, and April 4, 1970, when petitioner

should have been serving in the Active Reserve as a Lieutenant

Colonel, with petitioner’s name then being submitted to a

Special Selection Board to be convened (an alternative

suggested by the government to the Court of Claims) to con-

sider whether petitioner would have been promoted along with

his contemporaries by the July 10, 1972 Colonel Board but for

the delay in his being notified on June 2, 1969 of his placement

on a recommended overall-vacancy list for promotion to

Lieutenant Colonel since, had this delay not have taken place,

petitioner would have been promoted to Lieutenant Colonel on

June 29, 1969, thereby also making him eligible for promotion

consideration by the July 10, 1972 Colonel Promotion Board

prior to his reaching 28 years commissioned service, which con-

stituted legal error, as petitioner was not immediately notified,

as required when permission to give this notice was given under

the provision of AFM 35-3, Ch. 60, 460-5, and with the

Secretary being directed to compensate petitioner as Colonel

for all pay and allowances from the date petitioner would have

been promoted, and further directing that petitioner be ordered

back to Active Reserve for a period of 5 years as Colonel

following any such promotion, under the statutory provisions

of Title 10 U.S.C. 8851.

Petitioner further contends this Specially Constituted

Selection Board should be given the opportunity to consider

promoting petitioner to Colonel by reason of this legal error.

(b) Basis for Federal Jurisdiction in the Court of First In-

stance.

The jurisdiction of the Court of Clai.as was invoked,

and not denied by the respondent, under the provisions of Title

10 U.S.C. $1491; Title 10 U.S.C. $1552; Court of Claims

Rules, Rule 149(a) and Rule 131(c) (2), Title 28 U.S.C.A.

VI

ARGUMENT AMPLIFYING REASONS

FOR ALLOWANCE OF THE WRIT

The decision below should be reversed for the special and

important reason that it encroaches upon the right of petitioner

to have been paid as a Lieutenant Colonel for the period of

June 29, 1969, to April 4, 1970, while in the Active Reserve and

to have remained in the Active Air Force Reserve and the op-

portunity to have been promoted and paid in the successive

grades for which he was qualified, as this decision was not

decided in the way that is in accord with applicable decisions of

this court and is in conflict with these applicable decisions of

this court, so as to call for an exercise of this court’s power of

supervision. The specific character of these reasons to be con-

sidered are as follows:

The Writ of Certiorari should be granted in this case, just

as was done in the Testan case, supra, because of the im-

portance of the issue in the measure of the Court of Claims’

statutory jurisdiction and because of the significance of that

court’s decision upon the administration of boards for the

correction of military records, as the Court of Claims in the

present case did not follow the clear mandate of the Supreme

Court directing that review of such administrative findings

must be limited to legal entitlement, or legal error in connection

with such review, rather than determining whether the ad-

ministrative finding was arbitrary, capricious or against the

substantial weight of evidence.

Furthermore, the petitioner contends that the Supreme

Court should grant the Writ of Certiorari to review the decision

of the Court of Claims, as there is no other appellate forum to

which the petitioner can appeal, and the denial of the Writ

would be a denial of the petitioner the equal protection of laws

and due process, in that had the petitioner filed his action in a

District Court, rather than the Court of Claims, he would have

been able to appeal the District Court’s decision to a Circuit

Court of Appeals prior to applying for the Writ of Certiorari to

the Supreme Court.

1. Petitioner had a legal right to have been considered for

promotion prior to discharge.

Title 10 U.S.C. .§8366(d), implemented by Air Force

Manual 35-3, Chapter 23, provides the method for early

automatic promotion of officers already on a recommended

list.

The Court of Claims misapprehended and mistakenly in-

terpreted both of these authorities by holding that Title 10

U.S.C. §8366(d) only provides that the Air Force ‘‘may,”’

authorize out-of-sequence promotions, without recognizing the

mandatory provisions of the implementing Manual (that has

the same effect as a Regulation), and by mistakenly holding

that plaintiff argued that Chapter 23 of the Manual did not ap-

ply to him, whereas the contrary is the case. |

Chapter 23 of Air Force Manual 35-3, provides for a ‘‘self-

executing promotion.’’ Petitioner was ‘‘already on a recom-

mended list’’ as a result of his previous Overall-Vacancy Selec-

tion Board action, and under 423-7a of this Manual, when an

officer is on a recommended list ‘‘ARPC [Air Reserve Per-

sonnel Center] will not [mandatorily] report his name or the

vacancy [to be filled by that officer already on a recommended

list] to a selection board for action.’’ Furthermore, if

petitioner was the ‘‘only candidate,”’ under §(1) of Chapver 234

23-7a, to fill the vacancy, if none of the other candidates are on

a recommended list, ‘‘he will be [mandatorily] promoted.’’

The petitioner here was not only an ‘‘only candidate,’’ but

on August 5, 1969, he was actually filling the Lieutenant

Colonel Mobilization Augmentation Vacancy at Homestead

Air Force Base - that he would have filled in June, 1969, prior

to the Unit Vacancy (Mobilization Augmentation Grade

Vacancy) Selection Board that met on June 19, 1969, had he

been notified of his selection for promotion to lieutenant

colonel, as he should have been on June 2, 1969, as all

arrangements had been made for his immediate transfer from

Charleston Air Force Base to Homestead Air Force Base on

said date to permanently fill this lieutenant colonel vacancy, as

established by the Affidavits of Master Sergeant Tucker dated

June 22, 1972, May 12, 1976, and December 3, 1976,

reproduced in Appendix D to this petition, and the Statements

of Lieutenant Colonel Stanley Kava, then the Staff Judge Ad-

vocate at Homestead Air Force Base, dated June 24, 1972, and

June 29, 1972, also reproduced in Appendix D to this petition.

12

Under these circumstances, pursuant to 423-7b of Chapter

23 of the Manual, petitioner would have been promoted ‘‘one

day before the promotion of other officers not on a recom-

mended list who are selected by a selection board to fill Unit or

Mobilization Augmentation Grade Vacancies.’’ That date

would have been June 29, 1969, as confirmed by the Affidavit

of Mr. Neil Hartman, supra, reproduced in Appendix D. This

paragraph makes it clear that an officer ‘‘on a recommended

list’’ is not to be considered by the board or selected by the

board to fill such vacancies. Only officers who are seeking the

vacancy promotion along with other officers, will be con-

sidered by the board, which was not the case with petitioner.

The Court of Claims’ decision, however, also holds that since

423-7a of Chapter 23 of the Manual refers to officers being

‘*recommended for promotion,’’ and since petitioner was not

recommended for promotion prior to June 29, 1969, he could

not be automatically promoted; however, it is clear that this

recommendation mentioned is only required for candidates

seeking an out-of-sequence promotion in competition with

other officers. An officer who is already on a recommended list

as a result of selection for promotion by an earlier Overall-

Vacancy Board would not have to be recommended again for

promotion by a board that he will not meet. If he will not meet

the board, as provided in Chapter 23 423-7 of the Manual, then

no recommendation would go to the board when neither ‘‘his

name or the vacancy’’ is reported to this board, and he,

therefore, would be promoted automatically under the

provisions of Chapter 23 7b of the Manual, one day before

the officers who were selected by this board who were not on a

recommended list. The Court of Claims mistakenly emphasized

that the petitioner would not have had this recommendation,

that the Court of Claims held petitioner should have had 30

days prior to the meeting of the board on June 19, 1969, since

petitioner could not have been notified of his selection for

promotion to Lieutenant Colonel prior to June 2, 1969, as

authorized in and required by the directive from Headquarters

Military Airlift Command, supra, reproduced in Appendix D,

(this order, as noted was not mailed until June 10, 1969,

thereby setting into motion the delay of the notification of

petitioner of his name being on the recommended list that

prevented petitioner from being assigned to Homestead Air

Force Base in the Lieutenant Colonel Mobilization Augmen-

tation Grade Vacancy prior to June 19, 1969). This 30-day

period is not a part of Chapter 23 that applies to petitioner, as

13

Chapter 23 { 23-4, relating to “‘How to Fill a Vacancy,’’ refers

to Table 23-1, reproduced verbatim in Appendix B to this

petition, that sets out the Rule regarding promotion of officers

that must be recommended for promotion. The 30-day period is

not a part of the Rule, in any event; it is merely a procedural

direction set out in a “‘Nofe’’ below the table. The Nofe is not

identified as being part of any of the rules enunciated in the

Table; nor is it a part of any of the paragraphs of Chapter 23.

However, it is emphasized that neither the Rule set out in Table

23-1, nor the procedural Note relating to the 30-day period ap-

ply to the petitioner, who ‘‘was already on a recommended list’’

and whose name would not have been ‘‘reported to the board

for action’’ on the Lieutenant Colonel vacancy that he would

have filled immediately after June 2, 1969, but for the delay

(legal error) in notifying petitioner of his recommendation for

promotion to Lieutenant Colonel. Nevertheless, this direction

specifically does state a ‘‘recommendation (that would include

merely submitting an officer’s name to ARPC and whose name

would not have been acted upon by this specific board) may be

submitted [to ARPC] at any time. ’’ This clearly means that not-

withstanding the Note that a name be submitted no later than

30 days before the board is scheduled to convene, a name, that

would include an officer already on a recommended list, can be

submitted ‘‘at any time’’ within this 30-day period (or even af-

ter this board meets), just so long as it is done before the

promotion of officers not on a recommend list who are select-

ed by the selection board to fill Unit or Mobilization Augmen-

tation Grade Vacancies. (AFM 35-3, Chap. 23 ¢ 23-7b). The

Affidavit of Mr. Hartman, supra, in Appendix D, dated

December 2, 1974, states: ‘‘. .. any Major selected by this

board [Unit or Mobilization Augmentation Grade Vacancy

Board that met on June 19, 1969], would have been promoted

effective 30 June 1969. If an individual was on a previous list

[as was the petitioner, who was selected by the February, 1969,

Overall-Vacancy Promotion Board], he would have been

promoted ‘automatically,’ ‘without going before the board’

[the June 19, 1969, Lieutenant Colonel Unit Vacancy or

Mobilization Augmentation Grade Vacancy Board], and that

promotion would have been effective one day earlier, which

would have been 29 June, 1969.’’ It will be remembered that the

government asked the Court of Claims, after receiving the Hart-

man Affidavit, to suspend the proceedings in this case to allow

the Air Force to reconsider its denial of petitioner’s application

14

for correction of his records. (Motion and Order, supra, in Ap-

pendix A).

The above Note then continues by stating that these recom-

mendations apply to ‘‘an officer to be considered by this

specific board’’ convened to fill Unit or Mobilization Augmen-

tation Grade Vacancies. Papragraph 7a(1) of Chapter 23 of the

Manual supports this interpretation, since q 7a states that AR-

PC ‘“‘will not report his name or the vacancy to a board for ac-

tion,’’ that is, the name of an officer who is already on a

recommended list as a result of previous selection by an

Overall-Vacancy Board, such as petitioner. Section (1)

of { 23-7a of Chapter 23 of this Manual, goes on to state that

when this officer, who is already on a recommended list, is the

only candidate to fill the vacancy ‘‘he will be promoted, ’’ again

without consideration by this specific selection board, notwith-

standing the 30-day period, since his name can be submitted ‘‘at

any time’’ prior to the period specified in | 23-7b of Chapter 23

of the Manual.

The two promotion Methods ‘‘A’’ and ‘‘B”’ outlined in the

opinion of the Court of Claims do not apply to petitioner for

the above reasons; and the Affidavits filed in support of

petitioner’s Motion for Summary Judgment showing to the

contrary were not opposed or rebutted in any way. Fur-

thermore, Footnote 6 of this opinion that purports to support

the lower court’s contention that petitioner is ‘‘piling’’ and

“‘pyramiding”’ ‘‘inference upon inference’’ as there is no way

of knowing if petitioner could have been placed on the recom-

mended list for promotion to Colonel and thereby spared

automatic retirement, overlooks the fact that petitioner would

have been promoted out-of-sequence to Lieutenant Colonel

automatically on June 29, 1969, had he been notified on June 2,

1969, of his selection by the February 3, 1969 Overall-Vacancy

Lieutenant Colonel Board, and then petitioner would have been

considered for promotion by the Colonel Board on July 10,

1972. Under the Remand Statute Title 10 U.C.S. $1491, the

question of whether petitioner would have been promoted to

Colonel by the July 10, 1972, Colonel Board then should be

referred back to the Secretary of the Air Force for action in a

manner that will not violate the rulings in Yee v. United States,

206 Ct. Cl. 388, 399, 512 F. 24.1383, 1388, and Brenner v.

United States, 202 Ct. Cl. 678, Cert. denied, 419 U.S. 831. In

fact, under the Yee case, which was a ‘‘passover’’ case not

directly applicable to this case, the court held the claimant must

15

plead and prove that the Selection Doard violated a statute or

regulation governing its procedures, and if so, the claimant

would prevail on the theory that he never had been discharged.

This petitioner agrees .with this proposition only on the basis

that the Colonel Board convened on July 10, 1972, should have

considered this petitioner for promotion along with his con-

temporaries then existing, but did not because petitioner was

illegally (contrary to Statute and Regulation/Manual) denied

promotion to Lieutenant Colonel on June 29, 1969, and

therefore he should not have been discharged from the Active

Reserve without having first met the July 10, 1972 Colonel

Board.

2. The Court of Claims erroneously determined this case

on the basis of whether the Air Force Board for Correction of

Military 2ecords acted arbitrarily, capriciously, or against the

substantial weight of evidence rather than on basis of legal

error.

The Tucker Act, codified in Title 28 U.S.C. §1491, along

with Title 10 U.S.C. §1552 and Court of Claims Rules, Rule

131(c) and Rule 149(a), Title 28 USCA, establishes the jurisdic-

tion of the Court of Claims in cases founded on any regulation

of an executive department, or founded on any express or im-

plied contract with the United States, and in an original suit for

a money judgment to recover lost pay. See: Friedman v. United

States, 158 F. Supp. 354; 141 Ct. Cl. 239, cited in the Duhon

case, infra. Judge Littleton speaking for the Court of Claims

emphasized the jurisdiction of the Court of Claims to review an

adverse action of a Board for the Correction of Military Records

by stressing that: ‘‘. . . the sort of ‘review’ contemplated in

an action to recover lost pay is an original suit for a money

judgment .. . [SJuch ‘reviews’ by this court to determine

whether or not pay has illegally been withheld from a member

or former member of the military services, have long been sanc-

tioned by this court and the Supreme Court.”’ (p. 258-259).

Also see: Dismuke v. United States, 297 U.S. 167, 56 S.Ct. 400,

80 L.Ed. 561 (1936); Reynolds v. United States, 292 U.S. 443,

$4 S. Ct. 800, 78 L.Ed. 1353 (1934); Spencer v. United States,

102 F. Supp. 774, 121 Ct .Cl. $58, cert. denied, 344 U.S. 828,

73 S. Ct. 29, 97 L. Ed. 644 (1952); Shapiro v. United States, 69

F. Supp. 205, 107 Ct. Cl. 650 (1947).

a

In Friedman the court further stated: ‘‘. . . that Congress

had no intention in enacting the Correction Board legislation of

withholding from this court jurisdiction to render a money

judgment for pay of which a claimant is deprived by reason of

. . . illegal action of a Correction Board in either wrongfully

refusing to correct the record, or wrongfully refusing to order

payment of amounts due on account of a proper correction

made by the Board.”’ (p. 376 in 158 F. Supp., and p. 259 in 141

Ct. Cl.). See also: Prince v. United States, 119 F. Supp. 421;

127 Ct. Cl. 612; and, 41 Op. Att’y Gen. 94 (1952).

The Petitioner, as a Reserve Commissioned Officer, per-

iodically (every two-three-four or five years at the option of the

Reservist) renewed his contract to serve in the Active Reserve,

which subjected him to immediate recall to active duty in a

national emergency; and this reserve duty, in turn, availed

petitioner of the right to be promoted from time to time under

the provisions of law that are implemented by Air Force

Regulations and Manuals. These promotions, again in turn, en-

titled petitioner to increased pay and allowances which con-

stitutes a substantive right that, incidentally, did not exist in the

Testan case. The petitioner is suing for monies improperly

retained under circumstances that mandate compensation by

the federal government because of both his wrongful

promotion denial and wrongful discharge from the Active

Reserve as a result of legal error of the government.

The petitioner is entitled to the emoluments of the position

he held, or to which he had a right to advance, until he had been

legally disqualified, as stated in the case of Selman v. United

States, 204 Ct. Cl. 675, 498 F.2d. 1354 (1974), cited in the

Testan case. The pay claim of the petitioner here rests flatly

upon the mandatory provisions of Air Force Manual 35-3, im-

plementing Title 10 §8866d, requiring that petitioner would

have been promoted automatically to Lieutenant Colonel on

June 29, 1969, had he been immediately notified on June 2,

1969, of his promotion as directed by Headquarters, Military

Airlift Command, as also required by Chapter 23, of that

Manual.

The case of Doggett v. United States, 207 Ct. Cl. 478, 483

(1975) also cited by the lower court to support its findings, in

fact supports the contention of the petitioner, in that the lower

court held that it would award pay above the pay of the

17

should be promoted.”’ Citing: Selman v. United States, supra.

The ‘‘clear-cut’’ legal entitlement of petitioner to have been

promoted to Lieutenant Colonel on June 29, 1969, is clear-cut.

The Selman case held the ‘‘unambiguous wording of a statute

{or implementing manual] should be given its plain and com-

monly understood meaning.”’ Also see in this regard:

Skaradowski v. United States, 200 Ct. Cl. 488, 471 F.2d. 627.

Furthermore, the Doggett case turned on the proposition that

the promotion sought there was ‘“‘discretionary’’ upon a recom-

mendation of his commanding officer’’ that could be with-

drawn. The facts in Doggett are clearly distinguished from the

present case sought to be reviewed.

Then, one of the cases that the lower court asked to be

compared with the Doggett case, namely: Duhon v. United

States, 198 Ct. Cl., 564, 461 F.2d. 1278, is completely

analagous to and on all fours with the claim of the petitioner.

The Air Force in the Duhon case failed to advise Major Duhon

of essential information regarding his promotion status that

resulted in Major Duhon being eliminated from active status,

just as was done with the petitioner here. The failure to notify

admittedly was not the fault of Major Duhon, just as the

failure to notify petitioner here was not the fault of this

petitioner. At the time this petitioner’s career ‘‘had been moving

along at a steady pace,”’ he having ‘‘advanced regularly,’’

**suddenly a simple error on the part of the government, a little

mistake, destroys his career.”’ (p. 1280). As in the Duhon case,

the Air Force Board for Correction of Military Records quite

easily could have corrected petitioner’s records, and ‘‘an ob-

vious injustice created totally by an error of the defendant was

not corrected by the appropriate military board, which had the

power to do so.’’ (p. 1281). Retired Mr. Justice Reed was cited

in the Duhon case at page 1282, as saying: ‘‘The correction

boards were created to remedy wrongs, not to confound

them.”’ Eicks v. United States, 172 F. Supp. 445, 145 Ct. Cl.

$27. The the court in the Duhon case quoted Judge Madden in

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

saying: ‘‘It becomes a question whether the plaintiff should

forfeit and lose valuable rights because of the inaction of the

official who had those rights in his custody . . . ’’ Similarly, in

this case, as in the Duhon case, “‘plaintiff has suffered because

of an error made solely by the Air Force.’’

Finally, the Court of Claims stated in the Duhon case that:

‘*We have previously held that a ‘Secretary and his boards have

an abiding moral sanction to determine, insofar as possible, the

true nature of an alleged injustice and to take steps to grant

thorough and fitting relief.’ ’’ Caddington v. United States,

170 F. Supp. 604, 607; 147 Ct. Ci. £29, 634.

The Back Pay Act codified in Title 5 U.S.C. §5596(b), also

discussed in the Testan case, authorizes retroactive recovery of

wages whenever a federal employee has ‘‘undergone an un-

justified or unwarranted personnel action that has resulted in

the withdrawal. . . of all. . . of the compensation to which the

employee is otherwise entitled.’’ This court held that the

statute’s language is intended to provide a monetary remedy for

wrongful removals and ‘‘other unwarranted or unjustified ac-

tions affecting pay allowances that could occur in the course of

reassignments . . . ’’ (in the Active Reserve and to the Retired

Reserve), thereby creating a claim for the award of money

damages ‘‘for wrongful deprivation of pay. . .’’ as a result of

the claim that petitioner ‘‘ . . . should have been placed in a

higher grade.’’

Consequently, the Court of Claims failed to follow the

directions enunciated in the Testan case, that claims, such as

the present one, should be determined on the basis of legal en-

titlement rather than whether the administrative board from

which the petitioner appeals acted arbitrarily, capriciously or

against the substantial weight of the evidence. The mandate

from this court to do otherwise in such cases is clear.

The petitioner had a substantive legal right to be promoted

to Lieutenant Colonel on June 29, 1969, and would have been

promoted to Lieutenant Colonel but for the failure of the

government to comply with its Manual implementing the law

authorizing petitioner’s promotion at that time. The petitioner

by reason of this substantive right that was denied also had a

substantive legal right under statute to have been considered for

promotion to Colonel by the Colonel Promotion Board that

convened prior to his reaching 28 years commissioned service

which was denied petitioner because of the failure of the Air

Force to comply with the mandatory provisions contained in its

own Manual implementing the statute authorizing the

promotion of petitioner to Lieutenant Colonel on June 29,

1969.

19

The Court of Claims therefore should have determined this

case on the basis of whether or not there was ‘“‘legal error’ by

the Air Force in not complying with its own Manual im-

plementing statutory authority, and not whether the Air Force

and the Air Force Board for Correction of Military Records act-

ed arbitrarily or capriciously or against the substantial weight

of the evidence. The Testan case limits the review of the Court

of Claims to whether a “‘substantive right’’ to the remedy

claimed exists. (Div. III p. 126). Whether or not the Ad-

ministrative Correction Board acted arbitrarily, capriciously or

against the substantial weight of evidence is not the issue;

whether or not the petitioner had a ‘‘substantive legal right’’ to

the position and pay he claims is the issue. The rest is im-

material and under the holding of the Testan case no longer the

standard of review of actions of such administrative boards.

Whether this board acted arbitrarily, capriciously or against the

substantial weight of the evidence does not create a cause of ac-

tion against the government, but whether it is the legal right to

the relief sought that creates this cause of action as determined

in the Testan case.

The arbitrary or capricious rule or a finding that was

against the substantial weight of evidence only applies in cases

where there is an issue of fact to be determined, not where the

sole issue is the application of law to acknowledged facts such

as should have been done in this summary judgment proceeding

where none of the facts set out in the supporting documents and

affidavits were refuted. But to the contrary no affidavits or

documents opposed the affidavits and documents filed in sup-

port of petitioner’s motion for summary judgment, were filed

by the government. In fact, all of the facts surrounding the oc-

currences relating to the claim of petitioner were expressly ad-

mitted, thus leaving the substantial legal right of the petitioner

to the claims made as the sole issue that should have been deter-

mined by the Court of Claims.

VII

CONCLUSION

For the foregoing reasons the decision below is palpably

erroneous and should be reversed with directions: 1) that

judgment be entered awarding petitioner the additional pay due

him as a Lieutenant Colonel from no later than June 29, 1969,

to August 4, 1970, when petitioner continued to serve as a

Major when he should have been serving as a Lieutenant

Colonel in the Active Air Force Reserve; 2) that an order be

issued directing that petitioner be restored to the Active Reserve

and placed in an appropriate duty status with correction of his

applicable records im order to complement the relief afforded

by a money judgment so that petitioner may meet the next

Colonel Promotion Board convened by the Air Force since

petitioner was wrongfully removed from the Active Reserve

without meeting the Colonel Board that met prior to his

removal that he had a legal right to have met, with directions

that this Colonel Promotion Board be fully appraised as to the

reasons for the delay in the submission of petitioner’s name for

consideration for promotion to Colonel and that petitioner not

be prejudiced in any way be reason of this delay caused by error

on the part of the Air Force, or in the alternative, that the claim

of petitioner then be remanded to the Secretary of the Air Force

under the provisions of the Remand Statute, codified in Title 28

U.S.C. $1491, and implemented by Rule 149/a) of the Court of

Claims, for further consideration, either by the Secretary, or by

a specially constituted selection board, to determine if

petitioner would have been promoted along with his con-

temporaries at that time; and, 3) with further directions that

should the Secretary, or this board, find that petitioner would

have been promoted to Colonel, either order that petitioner be

paid and reinstated in the Active Reserve as a Colonel, or order

that the said case be returned to the Court of Claims for a sub-

sequent order directing that petitioner be paid and reinstated in

the Active Reserve as a Colonel from the date officers selected

by the July 10, 1972, Selection Board were promoted, and in

either case, providing that said reinstatement must be for a

period of no less than five (5) years, pursuant to statute con-

trolling the status of petitioner. Court of Claims Rules, Rule

131(c) (2), 28 USCA.

The reversal of the Court of Claims’ decision in this case is

appropriate to be consistent with this court’s practice where the

21

law is settled by a prior decision (Testan) and also where the ac-

tion of a lower court is clearly improper.

Respectfully submitted,

JOSEPH B. BERGEN

Attorney for Petitioner

Columbia Square Law Offices

125-127 Habersham Street

Savannah, Georgia 31401

Telephone: 912/233-8001

Of Counsel:

Jack E. Miller

122 East Oglethorpe Avenue

Savannah, Georgia 31401

Telephone: 912/233-4141

Appendix “‘A’”’

In the United States Court of Claims

No. 356-74

(Decided April 20, 1977)

LT. COL. JOSEPH B. BERGEN v. THE UNITED STATES

Joseph B. Bergen, pro se. Jack E. Miller, of counsel.

John W. Showalter, with whom was Assistant Attorney

General Rex E. Lee, for defendant.

Before Skelton, Kashiwa, and Kunzig, Judges.

ON PLAINTIFF’S AND DEFENDANT’S MOTIONS FOR

SUMMARY JUDGMENT

Kunzig, Judge, delivered the opinion of the court:

This military pay case comes before the court on

crossmotions for summary judgment. Plaintiff (a former Air

Force Reserve Lieutenant Colonel retired from the Judge Ad-

vocate General’s Department) argues that the Air Force Board

for the Correction of Military Records (AFBCMR) improperly

denied his claim that he was entitled to an ‘‘automatic’’ out of

sequence promotion to Lieutenant Colonel. Defendant con-

tends that the AFBCMR acted neither arbitrarily nor

capriciously nor against the substantial weight of the evidence

in refusing to grant plaintiff’s application and should,

therefore, be affirmed.

Plaintiff’s claim must fail. Although the decision is not an

easy one, and was reached only after supplemental briefing was

requested from both parties, no other result is possible. Plain-

tiff has not shown that he meets the governing requirements set

forth in Air Force Manual (AFM) 35-3, Chapter 23 (hereinaf-

ter Chapter 23) for an out of sequence promotion to fill a ‘‘unit

and mobilization augmentation grade vacancy.”’

Plaintiff is seeking to have his promotion to Lieutenant

Colonel moved from April 4, 1970 to some time prior to July 1,

23

1969. Unless plaintiff was promoted to Lieutenant Colonel

before July 1, 1969, he could not be considered (and possibly

promoted) by a Colonel Selection Board which met on July 10,

1972, due to plaintiff’s insufficient time in rank as Lieutenant

Colonel. 10 U.S.C. § 8363(a) (1970); AFM 35-3, Ch. 21-3(c).

The promotion to Colonel in July 1972 was crucial for plain-

tiff, for unless promoted by September 1972, he became subject

to automatic retirement under 10 U.S.C. § 8848 (1970) (28

years of service without selection for rank of Colonel). Plaintiff

was in fact automatically retired for this reason.

Basically, plaintiff claims that but for the delay in notify-

ing him of his placement on a recommended list for promotion

to Lieutenant Colonel, he would have been promoted to

Lieutenant Colonel before July 1, 1969, thus avoiding his

ultimate automatic retirement for failure to make full Colonel

within the requisite time period. Plaintiff relies principally on

10 U.S.C. § 8366(d) (1970), and supporting affidavits of per-

sons involved in the promotion process. The Government, too,

relies on 10 U.S.C. § 8366(d) (1970), but asserts that the ap-

plication of this section can only be determined through an

examination of its implementing regulations found in the Air

Force Manual, Chapter 23. Plaintiff, in reply, argues that

Chapter 23 does not apply to him, but that if it does, he has met

its requirements.

We conclude that the dispositive issue in this case is

whether plaintiff met the requirements of Chapter 23 for an

**automatic,’’ out of sequence promotion, so that he should

have been promoted prior to July 1, 1969.2 We reach this con-

clusion for two reasons. First, the language of 10 U.S.C. §

8366(d) (1970), on which plaintiff relies, is not self-executing;»

it is effectuated only by its implementing regulations (inartfully

drawn though they may be). Second, plaintiff’s affiants, while

perhaps evidencing views somewhat divergent from the

regulations, do not control the regulations, but are governed by

them.

Chapter 23 delineates two methods by which plaintiff

could achieve an ‘‘automatic,’’ out of sequence promotion.

Although plaintiff argues only the first, in fairness to this pro

se plaintiff, we shall analyze each method in turn.

24

To qualify for promotion under method A, plaintiff must

meet three requirements at issue here:

(1) His name must be on a recommended list for

promotion to Lieutenant Colonel;

(2) He must be filling the vacancy slotted for the higher

rank; and

(3) He must also be recommended for promotion to

Lieutenant Colonel by the commander of the unit having the

vacancy.

All of these requirements must be met at least thirty days prior

to the meeting of the appropriate selection board. If all the

requirements are satisfied prior to the thirty-day cut-off date,

then the officer is ‘‘automatically’’ promoted without having to

go before the selection board, and the selection is effective one

day before those of officers promoted by the selection board.

AFM 35-3, Ch. 23-7(b).

Applying the facts of the instant case to the requirements

of method A, we find that plaintiff satisfied the conditions, but

not by the cut-off date. In plaintiff’s case, the cut-off date was

May 20, 1969, thirty days before the meeting date of the June

19, 1969 selection board.‘ Promotions made by the June 19

selection board were effective June 30, 1969. Plaintiff, if he

had satisfied the necessary requirements by May 20, would

have been promoted effective one day earlier, or June 29, 1969.

AFM 35-3, Ch. 23-7(b).

Examining the three requirements in reverse order, the

facts show that plaintiff was not recommended for promotion

by the commander of the unit having the vacancy until Decem-

ber 1969. Even though the unit commander stated by affidavit

that he would have recommended plaintiff in June 1969, a

recommendation in June would still not salvage plaintiff’s case.

Under no construction of the facts could plaintiff have been

recommended by May 20, 1969.

Turning to the second requirement, the facts again

illustrate that plaintiff was too late. He did not fill a vacancy

slotted for a Lieutenant Colonel until August 5, 1969. The fact

25

that the position was available in June and that plaintiff might

have received assignment to it in June does not change our

result. Nothing in the record shows that the vacancy was

available in May, or, even if it was, that plaintiff would have

known about it or would have been assigned to it by May 20.

The first requirement is that plaintiff had to be on a recom-

mended list for promotion to Lieutenant Colonel by the May

20, 1969 cut-off date. Whether plaintiff met this requirement

gives us some difficulty. Plaintiff was placed on a recom-

mended list on February 3, 1969. However, this list, which con-

tained instructions for notification of the named officers, was

not released until June 2, 1969. It appears then that the

operative date plaintiff was placed on the recommended list

was June 2. At any time from February 3 to June 2, plaintiff’s

name possible could have been removed by the Secretary of the

Air Force.

We note that plaintiff did not meet either the second or

third requirements by the proper date. This alone defeats plain-

tiff’s claim for promotion. It is, therefore, unnecessary for us

fully to analyze the first requirement—whether plaintiff was on

the recommended list by the cut-off date. We hold plaintiff

failed timely to meet requirements (2) and (3). Taking into con-

sideration the incomplete briefing on requirement (1), we

decline to reach it.

At this juncture, then, we have seen that plaintiff was three

and six months late in satisfying necessary requirements of

method A to reach ‘‘automatic’’ promotion. Although plaintiff

fails to argue the second possible method (method B), we never-

theless now examine the requirements to see if, by any possible

interpretation, plaintiff somehow qualifies.

This alternative method states three pertinent requirements

that must be met by the May 20, 1969 cut-off date:

(1) Plaintiff's name must be on a recommended list for

promotion to Lieutenant Colonel;

(2) If not occupying the vacancy slotted for the higher

rank, he must either be

‘‘assigned to the same Reserve section as the unit

having the vacancy. (If the vacancy is in a unit, the officer must

26

a eA AE EP RANE. tant a eal e

be assigned to that organization. If a mobilization augmen-

tation position vacancy . . . exists, he must be assigned to the

MAJCOM having the vacancy);’’ or

‘*fajn officer whose application for assignment to a

unit having the vacancy has been approved but whose assign-

ment has not yet been effected.’” AFM Chapter 23-2(a) (2) & (3)

(3) He must have been recommended for promotion to

Lieutenant Colonel and to the slot by the commander of the

unit having the vacancy.

The requirements are slightly different from those

discussed in method A, supra. Yet plaintiff fails to meet these

requirements for ‘‘automatic’’ promotion for the same reason

he failed to meet the requirements of method A: He was too

late. He met neither the second nor the third requirement by

May 20, 1969. He was assigned to the unit having the

Lieutenant Colonel vacancy at the same time that he was

assigned to the vacancy itself—August 1969, almost three

months after the cut-off date. He was not recommended for

promotion to Lieutenant Colonel until December 1969, some

six months after May 20, 1969.

Plaintiff, however, argues that but for the delay from June

2, 1969 to July 7, 1969 in his being notified that he was on the

recommended list, he ‘‘would have met the requirements for

‘automatic’ promotion.’’ This argument lacks viability. That

plaintiff could somehow 2tisfy two requirements by May 20,

1969 when, by his own admission, he had no reason to try to

meet these requirements until after June 2, 1969 (three weeks

subsequent to May 20, 1969), illustrates the lack of merit in

plaintiff’s claim. We are left with a piling of inference upon in-

ference, devoid of factual support. Even if this court were in

the promotion business, which it has repeatedly said it is not,’

we would be hard-pressed to find a solid link in plaintiff’s chain

of ‘‘ifs.’’"* One clear fact remains: He did not meet the ap-

propriate requirements in time.

Simply put, plaintiff has not shown that the AFBCMR, in

denying his application for change in the date of his promotion

to Lieutenant Colonel, acted arbitrarily, capriciously, or against

the substantial weight of the evidence. Compare Doggett v.

United States, 207 Ct. Cl. 478, 483 (1975); with Yee v. United

27

States, 206 Ct. Cl. 388, 397, 512 F.2d 1383, 1387 (1975);

Skaradowski v. United States, 200 Ct. Cl. 488, 471 F.2d 627

(1973); Duhon v. United States, 198 Ct. Cl. 564, 461 F.2d 1278

(1972).

In summary, in order for plaintiff to qualify for so-called

‘*automatic’’ promotion, he had to meet the requirements of

Chapter 23. Even with a pyramiding of inference upon in-

ference which sorely taxes the imagination, he failed.

Accordingly, upon consideration of the briefs (original

and supplemental) and record, and after hearing oral

argument, plaintiff’s motion for summary judgment is denied,

defendant’s motion for summary judgment is granted, and the

petition is dismissed.

1 Prior to June 25, 1969, ‘‘Promotion to USAFR to Fill Unit and Mobilization Augmentation Grade Vacan-

cies’’ was found at AFM 35-3, Chapters 60-62. The regulations were amended effective June 25, 1969. As no dif-

ference (material to this case) is found between the pre- and post-June 25, 1969 regulations, all references will be to

the post-June 25, 1969 version.

would order promotion, but see Doggett v. United States, 207 Ct. Cl. 478, 482 (1975) ) fails, as plaintiff would not

have spent three years as a Lieutenant Cvionel prior to the Colonel Selection Board’s July 1, 1972 cut-off date. 10

U.S.C. § 8363(a) (1970); AFM 35-3, Ch. 21-3(c). Because July 1, 1969 is s “‘magic day,"’ it

to discuss plaintiff's possible promotion to Lieutenant Colonel on any date subsequent to June 30, 1969. (April 4,

1970 was the actual date of plaintiff’ s promotion to Lieutenant Colonel.)

3 10 U.S.C. § 8366(d) (1970) states, in pertinent part:

An officer whose reserve grade is... major and whose name is on a recommended list may be promoted at

any time to fill a vacancy . . . (emphasis supplied)

Plaintiff argues that, in this section, ‘‘may’’ equals ‘‘shall’’ with the result that any Major on a recommended list

who is filling a vacancy is, without more, to be ‘‘automatically’’ promoted. Not only does such a reading do violence

to the plain meaning of the section, Selman v. United States, 204 Ct. Cl. 675, 680, 498 F.2d 1354, 1256 (1974), but it

also would destroy an orderly promotion process. Contrary to plaintiff's position, when something ‘‘may’’ be done,

it invites regulations to fill out the conditions by which the act is to be done. “May,” unlike “‘shall,"’ s not a word of

command, but of permission.

4 The Government suggests that May 19 is the thirty-day cut-off date. Our calculation indicates May 20.

However, the difference between defendant's date and our own is not material. As defendant does not explain its

method of calculation, we use our own.

5 See, eg., Yee v. United States, 206 Ci. Cl. 388, 399, $12 F.2d 1383, 1388 (1975); Brenner v. United States,

202 Ct. Cl. 678 (1973), cert. denied, 419 U.S. 831 (1974).

6 We note that even if plaintiff had been promoted to Lieutenant Colonel in time to be considered by the July

1972 Colonel Selection Board, we have no way of knowing (and, we might add, neither does plaintiff) if plaintiff

would have been placed on the recommended for promotion list by the board and thereby spared automatic

retirement.

Appendix ‘‘A’”’

IN THE UNITEL' STATES

COURT OF CLAIMS

No. 356-74

(Filed Dec. 26, 1974)

LT. COLONEL JOSEPH B. BERGEN,

Plaintiff,

V.

THE UNITED STATES,

Defendant.

DEFENDANT’S MOTION TO

SUSPEND PROCEEDINGS

Defendant respectfully moves the Court to suspend

proceedings in this case for a reasonable period in order to

allow plaintiff to make application to the Board for the Correc-

tion of Military Records. In the course of preparing defend-

ant’s response to plaintiff’s petition, defendant has been made

aware of certain information that was not known to either

plaintiff or to the Board when plaintiff made his original ap-

plication. This information relates to the existence of a Unit

Vacancy Board.

Defendant’s counsel is authorized to state that plaintiff

concurs in this motion. Defendant is presently forwarding the

information to plaintiff who, upon receipt of said information,

will make application to the Correction Board.

For the foregoing reasons, defendant respectfully requests

this Court to suspend proceedings i. this case for a reasonable

period in order to allow plaintiff to make application to the

Correction Board.

Respectfully submitted,

CARLA A. HILLS

Asistant Attorney General

Civil Division

JOHN W. SHOWALTER

Attorney, Civil Division

Department of Justice

IN THE UNITED STATES

COURT OF CLAIMS

TRIAL DIVISION

No. 356-74

(Filed December 30, 1974)

LIEUTENANT COLONEL JOSEPH B. BERGEN

v.

THE UNITED STATES

ORDER RE DEFENDANT’S MOTION

TO SUSPEND

Upon consideration,

It is HEREBY ORDERED that defendant’s motion is

ALLOWED, and proceedings herein are suspended for a

period not to exceed 6 months from the date hereof.

IT IS FURTHER ORDERED that plaintiff’s counsel

shall, at intervals not exceeding 60 days, advise the undersigned

of the status of proceedings before the Board.

H. D. Cooper

Trial Judge

IN THE UNITED STATES

COURT OF CLAIMS

TRIAL DIVISION

No. 356-74

(Filed June 23, 1975)

LIEUTENANT COLONEL JOSEPH B. BERGEN

v.

THE UNITED STATES

ORDER SETTING TIME PERIODS

In view of the attachments to plaintiff’s letter of June 9,

1975, it appears that further suspension of this case is inap-

propriate. It further appears that plaintiff proposes to file an

amendment to his pleadings.

IT IS THEREFORE ORDERED that plaintiff shall have

15 days from the date hereof in which to file any amended

pleadings and defendant shall have 45 days from the date

hereof in which to answer, move, or otherwise plead.

H. D. Cooper

Trial Judge

31

Appendix ‘‘B’’

25 June 1969 AFM 35-3

Chapter 23

PROMOTION OF AFRes OFFICERS

TO FILL UNIT AND

MOBILIZATION AUGMENTATION

GRADE VACANCIES

23-1. Introduction. This chapter tells how AFRes officers are

selected for promotion to fill unit and mobilization augmen-

tation grade vacancies. It applies to AFRes officers below

colonel (except second lieutenants) who are members of the

Ready Reserve. Send suggested changes to USAFMPC (AFP-

MAJB), Randolph AFB TX 78148.

23-2. Eligibility Criteria. To be considered for promotion under

this chapter, an officer must:

a. Be specially qualified and available to fill a vacancy in

the Ready Reserve. He satisifies this requirement if he is:

(1) The incumbent of the position; or

(2) An officer of the same grade as the incumbent, in the

same locality, and assigned to the same Reserve section as the

unit having the vacancy. (If the vacancy is in a unit, the officer

must be assigned to that organization. If a mobilization aug-

mentation position vacancy (see table 3-1) exists, he must be

assigned to the MAJCOM having the vacancy); or

(3) An officer whose application for assignemnt to a unit

having the vacancy has been approved but whose assignment

has not yet been effected.

b. Have completed the following amount of promotion

service in his current ResAF grade, by the last day of the month

immediately preceding the month in which the selection board

is scheduled to convene;

32

Years of

Promotion Service

For Promotion To Computed from PSD

Ph, Javicgedc hese ees be cd ee eeesseveve 2

CG SUCRE awwee Ves desc Fide Ce Ce awede ct 4

<6 un on canon teens beneeees 4

ee Se OEE OL Wis bs 6 Ui Vee eS OEM Nes < 3

23-3. Ineligible Officers. An officer is ineligible for promotion

under this chapter if:

a. He is a deferred officer as defined in 10 U.S.C. 8368(a).

b. He has been removed under paragraph 21-8 from a

recommended list for permanent promotion.

c. He is on EAD. (If an officer who has been selected for

promotion under this chapter enters EAD before being

promoted to fill the vacancy, his name will be removed from

the recommended list by ARPC.)

d. The highest echelon of command considering his

recommendation does not approve it. In this case, ARPC will

not submit his name to the selection board, and he may not be

recommended again for promotion under this chapter until 9

months after the date of such disapproval.

e. He had previously been recommended to fill a vacancy

but the selection board did not select him or any other officer to

fill the vacancy and it is less than 9 months since the convening

date of the board. (He is not ineligible if the board selected

another officer to fill the vacancy or if 9 months have elapsed

since that board convened.)

23-4. How To Fill a Vacancy. See table 23-1.

23-5. Commander’s Responsibility:

a. Acommander or his deputy who receives AF Form 212,

‘*Recommendation for Promotion in the Air Force Reserve,’’

from a subordinate unit will personally approve or disapprove

the recommendation. The major commander may delegate this

responsibility for the major command to an officer other than

his deputy provided the officer is at least a colonel.

33

Table 23-1

How To Fill a Vacancy

A B

To fill a grade vacancy the commander having the vacancy recommendation,

R ina Category A unit or submits AF Form 212 “‘Recom- whether approved or

U in a MAJCOM mendation for promotion in disapproved

L t ili . . AFRes,”’ through channels to the

E tation position for (see note)

promotion to

1 colonel major command will be forwarded

2 grades below colonel numbered air force or equivalent St., Denver CO

echelon of command 80205

NOTE: A recommendation may be submitted at any date. However, for an officer to

be considered by a specific selection board, the recommendation for his promotion

must reach ARPC no later than 30 days before that board is scheduied to convene.

b. A commander will notify ARPC DVR COLO by elec-

trical transmission if, before being promoted, an officer

becomes ineligible for any reason or becomes unavailable to fill

the vacancy, or if the position for which he was recommended

is eliminated.

c. A commander who has recommended an incumbent to

fill a grade vacancy will, except under unusual circumstances,

permit the officer to remain in the position until the results of

the selection board which considers him have been announced.

23-6. ARPC Responsibility. ARPC will:

a. Send the selection board schedule to all major com-

mands and separate operating agencies.

b. Verify the eligibility of officers recommended for

promotion and return, direct to the originator, recom-

mendations of officers found ineligible for consideration.

c. Forward to USAFMPC (AFPMAJB), Randolph AFB

TX 78148, the recommendations and selection folders of of-

ficers recommended for promotion to colonel.

d. Submit to the appropriate selection board the recom-

mendations and selection folders of officers recommended for

promotion to captain through lieutenant colonel.

34

e. Notify the selection board when an officer becomes

ineligible for promotion after his records have been submitted

to the board. (If the board has adjourned and its report of

proceedings has been submitted to HQ USAF, that headquar-

ters will be notified.)

f. Insure that the officer whom the board selects is

assigned to the position before promotion orders are published.

g. Take action in accordance with table 21-2.

23-7. Promotion of Officers Already on a Recommended List:

a. If the name of an officer recommended for promotion

under this chapter is already on a recommended list as a result

of selection under paragraph 21-3a, ARPC will not report his

name or the vacancy to a selection board for action. An officer

in this category is promoted as follows:

(1) If he is the only candidate to fill the vacancy or if none

of the other candidates are on a recommended list, he will be

promoted. No further action is taken on the other candidates.

(2) If two or more candidates are on a recommended list,

the senior officer will be promoted to fill the vacancy. No fur-

ther action is taken on the other candidates.

b. The promotion of an officer in the category specified in

a above will take place one day before the promotion of of-

ficers not on a recommended list who are selected by the selec-

tion board to fill unit or mobilization augmentation grade

vacancies.

23-8. Selection Board Actions:

a. Selection boards convene when required in accordance

with chapter 21 to consider officers for promotion under this

chapter. Officers whom the board does not select are not

deferred within the meaning of 10 U.S.C. 8368(a).

b. ARPC notifies MAJCOMs, separate operating agen-

cies, and AFRRs by letter concerning the convening of each

unit vacancy selection board. After receiving the letter, each

35

AFRR disseminates this information to units under his jurisdic-

tion (see paragraph 11-6h(3) concerning It cols who have twice

failed of promotion).

23-9. Supply of Forms. AF Form 212, attachment 5, will be

reproduced locally on 8 x 10-1/2’’ paper.

Appendix “‘B”’

31 July 1965 AFM 35-3W

60-5. Announcement of Selections. After a report of pro-

ceedings has been approved by the Secretary of the Air Force,

HQ USAF furnishes major commands and ARPC lists of

officers on EAD who have been recommended for promotion

and the dates the officers are to be promoted. ARPC furnishes

major commands this information on AFRes officers not on

EAD. HQ USAF furnishes this information ANGUS of-

ficers (both EAD and non-EAD) to the Chief, NGB. Unless

otherwise instructed, commanders may immediately release the

information received from HQ USAF and ARPC.

*60-6. Delaying Promotions. Major commanders or the Com-

mander, ARPC, may delay the promotion of an officer on a

recommended list or of a second lieutenant on EAD who is un-

der investigation or against whom proceedings of a court-

martial or a board of officers are pending, until the in-

vestigation or the proceedings are completed. A promotion,

however, may not be delayed for more than 1 year from the

date the officer is scheduled to be promoted, unless the

Secretary of the Air Force determines that a further delay is

necessary in the public interest. Major commanders and Com-

mander, ARPC, furnish HQ USAF (AFPMAJB1) the names of

officers whose promotion has been delayed and the reasons for

the action. The Chief, NGB, takes this action for non-active

duty ANGUS officers. If an extended delay is appropriate, the

request must be submitted to HQ USAF (AFPMAJB1) in suf-

ficient time for the Secretary of the Air Force to approve the ex-

tension before the 1-year delay has expired.

60-7. Removal From a Recommended List. If, before the date

he is scheduled to be promoted, an officer on a recommended

list becomes unsuitable for promotion, the major commander

concerned, the Commander, ARPC, or the Chief, NGB,

36

should request HQ USAF (AFPMAJB1) to remove his name

from the recommended list. The request, which should be

received in HQ USAF in sufficient time for the Secretary of the

Air Force to approve the removal before the officer’s scheduled

promotion date, must be submitted over the signature of the

major commander, his deputy or chief of staff; or the Com-

mander, ARPC, or his deputy; or the Chief, NGB, Air, or his

assistant. If removal action becomes appropriate in the case of

an officer whose promotion was delayed under paragraph 60-6,

removal must be approved no later than 1 year after the date

the officer was scheduled to be promoted unless the Secretary

of the Air Force had approved an extended delay. In such case,

removal must be approved no later than the last day of the ex-

tended delay.

60-8. Promotion of Selected Officers:

a. Table 60-2 tells how the effective date is determined for

each type of promotion.

b. Table 60-3 tells who is authorized to issue promotion

orders, where to forward copies, and where to record entries of

the promotion.

Appendix “‘B”’

25 June 1969 AFM 35-3

21-6. Announcement of Selections. After a report of pro-

ceedings has been approved by the Secretary of the Air Force,

HQ USAF furnishes major commands and ARPC lists of

officers on EAD who have been recommended for promotion

and the dates the officers are to be promoted. ARPC furnishes

major commands this information on AFRes officers not on

EAD. HQ USAF furnishes this information on ANGUS of-

ficers (both EAD and non-EAD) to the Chief, NGB. Uniess

otherwise instructed, commanders may immediately release the

information received from HQ USAF and ARPC.

21-7. Delaying Promotions. Major commanders or the Com-

mander, ARPC, may delay the promotion of an officer on a

recommended list or of a second lieutenant on EAD who is un-

der investigation or against whom proceedings of a court-

martial or a board of officers are pending, until the in-

37

vestigation or the proceedings are completed. A promotion,

however, may not be delayed for more than a year from the

date the officer is scheduled to be promoted, unless the

Secretary of the Air Force determines that a further delay is

necessary in the public interest. Major commanders and Com-

mander, ARPC, furnish HQ USAF (AFPMAJB1) the names of

officers whose promotion has been delayed and the reasons for

the action. The Chief, NGB, takes this action for non-active

duty ANGUS officers. If an extended delay is appropriate, the

request must be submitted to HQ USAF (AFPMAJB)) in suf-

ficient time for the Secretary of the Air Force to approve the ex-

tension before the 1-year delay has expired.

21-8. Removal From a Recommended List. If, before the date

he is scheduled to be promoted, an officer on a recommended

list becomes unsuitable for promotion, the major commander

concerned, the Commander, ARPC, or the Chief, NGB,

should request HQ USAF (AFPMAJB1) to remove his name

from the recommended list. The request, which should be

received in HQ USAF in sufficient time for the Secretary of the

Air Force to approve the removal before the officer’s scheduled

promotion date, must be submitted over the signature of the

major commander, vice commander, or chief of staff; or the

Commander, ARPC, or his deputy; or the Chief, NGB, Air, or

his assistant. If removal action becomes appropriate in the case

of an officer whose promotion was delayed under paragraph

21-7, removal must be approved no later than 1 year after the

date the officer was scheduled to be promoted unless the

Secretary of the Air Force had approved an extended delay. In

such case, removal must be approved no later than the last day

of the extended delay.

21-9. Promotion of Selected Officers:

a. Table 21-2 tells how the effective date is determined for

each type of promotion.

b. Table 21-3 tells who is authorized to publish promotion

orders, where to forward copies, and where to record entries of

the promotion.

38

Appendix ‘*‘C’”’

Department of the Air Force

Headquarters Military Airlift Command

Scott Air Force Base, Illinois 67775

Reply

Attn. of: MAPPPR (SSgt Turner/3643) 10 Jun 1969

Subject: ResAF Promotion Program - Lt Colonel

To:

AWS (AWPRF) (2 cys)

1400 ABWg (CBPO-RP(2 cys)

62 MAWg (CBPO-RP) (2 cys)

60 ABGp (CBPO-RP) (2 cys)

436 ABGp (CBPO-RP) (2 cys)

437 ABGp (CBPO-RP) (2 cys)

438 ABGp (CBPO-RP) (2 cys)

63 ABGp(CBPO-RP) (2 cys)

61 MAWg (CBPO-RP) (2cys) MAC STAFF (2 cys)

1. Attached are alphabetical lists of Non-EAD Air Force

Reserve Officers selected for permanent promotion by the

Reserve Lieutenant Colonel Selection Board which convened at

Headquarters ARPC on 3 February 1969. The lists will be

treated as ‘‘For Official Use Only’’ information in accordance

with AFR 11-30. Until officially released, the list may be used

only by persons charged with the responsibility for ad-

ministrative processing and necessary reproduction. Selected

officers will not be informed prior to 2 June 1969, the

established date for public release, with this letter as a basis of

authority.

2. Selected officer will be promoted in accordance with

paragraph 60-8, AFM 35-3.

3. When delay in promotion or removal from the recom-

mended list becomes appropriate, action will be taken in ac-

cordance with paragraph 60-6 and 60-7, AFM 35-3.

FOR THE COMMANDER

J.C. BUTLER, SMSgt, USAF

Actg Ch, Reserve Personnel Division

DCS/Personnel

1 Atch

Recommended List (2 cys)

39

Appendix “ery?

STATEMENT

Neil L. Hartman, Chief of the Officer Promotion Branch,

Promotion and Selection Division, Directorate of Personnel

Actions, at the Air Reserve Personnel Center (ARPC), 3800

York Street, Denver, Colorado 80205, being duly sworn

hereby, deposes and says that he conducted a thorough search

of the 1969 board proceedings at ARPC. This search revealed

the following information: a Major to Lieutenant Colonel Unit

Vacancy Board met on 19 June 1969. Any major selected by

this board would have been promoted effective 30 June 1969. If

an individual was on a previous list, he would have been

promoted automatically, without going before the board, and

that promotion would have been effective one day earlier,

which would have been 29 June 1969.

Neil L. Hartman

Chief, Officer Promotion Branch

Promotion and Selection Division

Directorate of Personnel Actions

STATE OF COLORADO )

) ss.

COUNTY OF DENVER )

Subscribed and sworn to before me this 2d day of December

1974.

Eunice M. Miller

Notary Public

My Commission Expires February 6, 1976

Appendix “‘D”’

24 June 1972

Subject: Date of Rank of Lt. Col. Joseph B. Bergen, 253-20-

6626

To: ARPC, Denver, Colo./Correction of Military

Records Board

1. Lt. Col. Joseph B. Bergen, USAFR, was assigned to the of-

fice of the Staff Judge Advocate, Hq., 453ist CSG (TAC),

Homestead, AFB, Fla., on 5 August 1969, while I was on active

duty serving as Staff Judge Advocate of that Air Force Base.

2. Lt. Col. Bergen, who then was a Major on the selection list

for promotion to Lt. Col., on 5 August 1969, filled on that date

a Mobilization Augmentation Vacancy position in my office of

Lt. Col. as a Non-EAD, M-Day assignee.

3. Lt. Col. Bergen was not recommended for immediate

promotion persuant to Par. 23-7, AFM 35-3, Ch. 23, since AR-

PC advised he was not eligible for such promotion.

4. Following subsequent advice that Lt. Col. Bergen was

eligible for this immediate promotion consideration, I recom-

mended him for promotion to Lt. Col. This recommendation

delay was by reason of the first advice that he was not eligible.

5. The Lt. Col., M-Day slot which Lt. Col. Bergen began

filling on 5 August 1969, was available to be filled during the

month of June 1969, and had Lt. Col. Bergen requested this

position at that time I would have approved this request, as I

did on 5 August 1969 when his request was made, and I would

have recommended him for promotion on that date under Par.

23-7, supra, as I did after 5 August 1969 when I learned Lt.

Col. Bergen was eligible for this promotion.

Stanley Kava

Lt. Col. (Ret.), USAF

41

Appendix “D”’

29 June 1972

TO: ARPC

Correction of Military Records Board

Denver, Colorado

SUBJECT: Date of Rank of Lt. Col. Joseph B. Bergen, 253-

20-6625

1. With reference to my letter of 24 June 1972 pertaining to the

promotion of the above officer, upon subsquent review of the

file on this matter and noting a letter dated 19 November 1969

to Chief, Promotion Selection Folder Branch, Denver,

Colorado, this is to further state for the purpose of making

clear the intent of my letter of 24 June 1972, that I wrote the 19

November 1969 letter while under the impression Lt. Col.

Bergen (then a Major) had to meet another promotion board

before being promoted under Title 10 U.S. Code 8366(d), and

thinking that to be the case, I wanted to observe his per-

formance before making a recommendation to a board.

2. That had I known Lt. Col. Bergen was eligible for this

promotion without having to meet a new board, I certainly

would have immediately recommended him for this promotion

as soon as he filled the Lt. Colonel vacancy in my office, as he

already had been selected for promotion by one board.

3. Concerning the statement in my letter of 19 November 1969

that Lt. Colonel Bergen had not reported for duty in my office

as of that date, the training records of Lt. Col Bergen show that

he already had fulfilled his active duty training for that fiscal

year in October of that year and that he had completed all but

two days training for the first semi-annual period of 1969 -

1970. This duty was performed at Hunter Army Air Field,

Georgia, where Lt. Colonel Bergen was attached for training.

He therefore could only perform two more inactive duty

training periods prior to 1 January 1970 and this was done on

29 and 30 December 1969, the latter date being the date I wrote

the promotion recommendation.

STANLEY F. KAVA

Lt. Colonel (RET), USAF

42

Appendix “‘D”’

State of South Carolina

County of Charleston

AFFIDAVIT

The affiant, TSgt Prince Tucker, Jr., after being duly

sworn by the undersigne+ officer, authorized to administer

oaths, deposed and said under oath before said officer, as

follows:

That during the months of June and July 1969, I was

NCOIC Reserve Affairs, keeping records of non-EAD M-Day

Reserve Officers assigned to 437 Air Base Group (CBPO-RP),

Charleston Air Force Base, South Carolina.

That Lt. Colonel Joseph B. Bergen, 253-20-6626

(FV02072096) was MD Judge Advocate Reserve Officer during

June and July 1969.

That during the later part of June 1969, I received a list of

Reserve Majors selected for promotion to Lt. Col. from Re-

serve Personnel Division, Hq MAC, Scott Air Force Base,

Illinois containing the name of Lt. Col. Bergen. This list had at-

tached to it a cover letter dated 10 June 1969 directing that the

selected officers not be informed prior to 2 June 1969.

That because of the delay in receiving this list and the long

4th of July week-end, I did not inform Lt. Col. Bergen of his

selection for promotion to Lt. Col. until 7 July 1969.

PRINCE TUCKER, JR., TSgt. USAFR

249-54-3959

Sworn to and subscribed before me this 22nd day of June 1972

SEAL

Lorene C. Lucas

Notary Public

My Commission Expires

22 June 1981

~ 43

Appendix ‘‘D’’

STATE OF SOUTH CAROLINA )

) SS:-

COUNTY OF CHARLESTON )

AFFIDAVIT

The undersigned MSGT. PRINCE TUCKER, JR., after

being duly sworn and while under oath said as follows:

That during the month of May, 1969, I was NCOIC Re-

serve Affeirs, keeping records of non-EAD M-Day Reserve Of-

ficers assigned to 437 Air Base Group (CBPO-RP), Charleston

Air Force Base, South Carolina.

That Lt. Col. Joseph B. Bergen, 253-20-6626, who was

then a Major, was M-Day Judge Advocate Reserve Officer

assigned to Charleston Air Force Base in May, 1969.

That during the month of May, 1969, I assisted Lt. Col.

Bergen in his efforts to be reassigned to a Lt. Col. Reserve slot

at another Air Force Base since a Lt. Col. slot was not then

available at Charleston AFB, in anticipation of Lt. Col. Bergen

being notified of his selection by the February, 1969, Lt. Col.

Board for promotion to Lt. Col.

That I personally told Lt. Col. Bergen that he had to be in

grade as a Lt. Col. no later than 30 June, 1969, to be considered

for promotion to Colonel by the Colonel Board convening in

1972 as the cut-off date for his selection was 30 June and in-

formation had been received during communications with Hq

MAC, Scott AFB, Illinois, that in order for Lt. Cols. to be con-

sidered for promotion at that time they had to be in grade three

years. It was not unitl June of 1972 that Lt. Col. Bergen

became aware of the delay in notifying him of his selection for

promotion to Lt. Col. as set out in my affidavit given on 22

June, 1972, as a result of my advising Lt. Col. Bergen of the

facts set out in that affidavit.

That this affiant can definitely state that both he and Lt.

Col. Bergen were doing everything possible to arrange for Lt.

Col. Bergen to fill a Lt. Col. Reserve vacancy before 30 June

1969 so that Lt. Col. Bergen could receive his promotion prior

to 30 June, 1969, to make him eligible for consideration to full

44

Colonel by the 1972 Colonel Board before Lt. Col. Bergen

reached 28 years commission service on 30 September, 1972,

and these arrangements were made during May of 1969, with

the Judge Advocate’s Office at Homestead AFB, Florida, but,

as stated in my affidavit of 22 June, 1972, I did not see the let-

ter dated 10 June, 1969 from Reserve Personnel Division, Hq

MAC, Scott Air Force Base, Illinois, until my return to duty on

7 July, 1969, when J promptly notified Lt. Col. Bergen that I

had just received notice that he was on the recommended list

for promotion to Lt. Col.

Prince Tucker, Jr., MSgt. USAFR

249-54-3959

Sworn to and subscribed before me this 12th day of May, 1976

Patricia A. Renbert

Notary Public

My commission expires February 19, 1984

SEAL

45

Appendix ‘‘D’’

STATE OF GEORGIA )

) Ss:-

COUNTY OF CHATHAM )

AFFIDAVIT

The Affiant herein, MSGT. PRINCE TUCKER, JR.., af-

ter being duly sworn by the undersigned officer authorized to

administer oaths, deposed and said under oath before said of-

ficer, as follows:

That during the period Lt. Col. Joseph B. Bergen 253-20-

6626 (then Major Bergen) was assigned to the Office of the

Staff Judge Advocate, 437th Air Base Group (CBTO-RP),

Charleston Air Force Base, South Carolina, as a Non-EAD M-

Day Reserve Judge Advocate, I was the NCOIC Reserve Af-

fairs, and personally handled Lt. Col. Bergen’s assignment

transfer from 437th Air Base Group (MAC) where Lt. Col.

Bergen, as a Major, was then filling the position (slot, of Cap-

- with an AFSC of 8824, Training Category B, Pay Group

That Lt. Col. Bergen was reassigned to 4535th Combat

Support Group (TAC), Homestead Air Force Base, Florida, to

fill the then existing vacancy of Lieutenant Colonel with an AF-

SC of 8816, Training Category B, Pay Group B, effective 5

August 1969 under authority of AFM 35-3, as Lt. Col. Bergen

was then on a recommended list published by Headquarters,

Military Airlift Command, Scott Air Force Base, Illinois, dated

10 June 1969, for promotion to Lieutenant Colonel that

authorized the release of that promotion information to the

selected officers on 2 June 1969.

That prior to 4 August 1969, during the Fiscal Year 1969-

70 (1 July 1969 - 30 June 1970) Lt. Col. Bergen performed all of

his inactive duty for training at the Office of the Staff Judge

Advocate, Hunter Army Airfield, Savannah, Georgia, where

he was attached for inactive duty training purposes pursuant to

Reserve Order 76, dated 26 July 1976. [SIC]

That on 29-30 July 1969, Lt. Col. Bergen performed inac-

tive duty training on those two dates at the Office of Staff

Judge Advocate, Hunter Army Airfield, Savannah, Georgia, as

shown by copy of the AF Form 40A attached hereto received

from that installation. Lieutenant Colonel Bergen also per-

formed inactive duty training on 1 August 1969 at Hunter Ar-

46

my Airfield, Georgia, and then performed his final inactive

duty training period at Charleston Air Force Base on 4 August

1969 before reassignment to Homestead Air Force Base on 5

August 1969, as shown by copies of Air Force Form 40A for

the period of 1 August 1969 from Hunter Army Airfield,

Georgia, and Form 40A dated 4 August 1969 from Charleston

Air Force Base, South Carolina, copies of which are also at-

tached hereto.

That on 29 July 1969, Lt. Col. Bergen telephoned me on

Autovon from Hunter Army Airfield and requested me to ef-

fect his transfer from Charleston Air Force Base, South

Carolina to Homestead Air Force Base, Florida, as previously

arranged during May 1969, that was held in suspense awaiting

notification of Lt. Col. Bergen being selected for promotion to

Lieutenant Colonel by the 3 February 1969 Lieutenant Colonel

Promotion Board.

That Lt. Col. Bergen had informed me on 7 July 1969

when I advised him of his selection for promotion to Lieutenant

Colonel that since 30 June 1969 had passed he would wait until

he came to Charleston Air Force Base again at the beginning of

August to actually transfer to Homestead Air Force Base as he

wanted to complete all but two days of his inactive duty train-

ing for that semi-annual period (1 July 1969/30 December

1969) before reporting to Homestead for the final two days of

training for that semi-annual period. Lt. Col. Bergen expressed

the desire to complete the remaining inactive training for this

semi-annual period at Hunter Army Air Force Base with the ex-

ception of one day when he wanted to come back to Charleston

Air Force Base to tell everyone good-bye before being trans-

ferred to Homestead. Under the Training Category B, Pay

Group B, Reserve Officers at that time were only allowed six

days (credit being given for two days pay) training in any three

successive months during any semi-annual perioc with a

maximum amount of training being two days a month and six

days during any semi-annual period, so as to spread out the

training of the Reserve Officers throughout a twelve month

period, which in Lt. Col. Bergen’s case extended from 1 July

through 30 June of each year for training and pay purposes.

That Lt. Col. Bergen has shown me his duplicate original

signed copies of his inactive duty training at Homestead Air

Force Base for the period 29-30 December 1969 on AF Form

40A, copies of which are attached hereto, and I identify those

forms as evidence of Lt. Col. Bergen’s inactive duty training at

47

Homestead on those two days prior to the end of the semi-

annual period of 1 July 1969 — 30 December 1969.

That on 29 July 1969 when Lt. Col. Bergen telephoned me

on Autovon from Hunter Army Airfield I completed arrange-

ments on 30 July 1969 for Lt. Col. Bergen to be transferred to

Homestead Air Force Base, Florida, which arrangements took

no longer than one (1) day to be effective, at Lt. Col. Bergen’s

request, on 5 August 1969, which was the Tuesday following

the maximum training allowed Lt. Col. Bergen at Hunter Army

Airfield during July and the last day in August before transfer

to Homestead Air Force Base that Lt. Col. Bergen could per-

form inactive duty training for pay purposes after performing

inactive duty training the first day of August 1969 at Hunter

Army Airfield, Georgia.

That on 4 August 1969, Lt. Col. Bergen performed his last

duty at Charleston Air Force Base, South Carolina, and wound

up his affairs at Charleston Air Force Base on that date prior to

the effective date of his transfer to Homestead Air Force Base

on 5 August 1969, all as previously planned.

That Lt. Col. Bergen also has requested me to outline the

typical assignment procedures of M-Day Reserve Officers as

opposed to Reserve Officers serving in Units of the United

States Air Force and the procedure for promotion in Units as

well as the procedure for assigning M-Day Reserve Officers to

fill a Mobilization Augmentation Grade Vacancy under the

provisions of AFM 35-3.

Reserve Officers assigned to Units, such as a reserve Unit

located at Charleston Air Force Base, South Carolina, who are

under separate command of other Reserve Officers com-

manding such Units, who are designated in Training Category

A, Group A, and who train in a manner similar to Reserve Of-

ficers in separate Air National Guard Units of the Air Force,

are separate and distinct from Reserve Officers who are M-Day

assignees, such as Lt. Col. Bergen, who are assigned on an in-

dividual basis to offices such as the Office of Staff Judge Ad-

vocate on an Air Force Base. M-Day assignees fill individual

slots and are individually and personally responsible for their

own training and obligations to the Air Force, as indicated by a

copy of Lt. Col. Bergen’s Emergency Orders exhibited to me

issued at Homestead Air Force Base which is attached hereto,

issued to Lt. Col. Bergen on 18 May 1970 after he received his

48

Overall Vacancy Promotion on 4 April 1970 to Lieutenant

Colonel.

The promotion of Reserve Officers in a Unit is handled

through the Reserve Commanding Officer of that particular

Unit and processed through the Reserve Affairs Office of the

base where said Reserve Unit is located.

Promotions of M-Day assignees are based on the OER’s of

that particular officer, evaluated by a promotion board that

meets at Air Reserve Personnel Center; and the information re-

lating to the announcement of that promotion is ultimately

handled by the Reserye Affairs Office of the base where that

M-Day Reserve Officer is assigned. No individual recom-

mendations are made by the Staff Judge Advocate, such as the

Staff Judge Advocate in an office where Lt. Col. Bergen

served, and no recommendations are received for such

promotions of M-Day assignees from the Active Duty Staff

Judge Advocate under whom a Reserve Officer is serving.

M-Day assignees assigned to a ‘‘slot’’ are positioned in

those slots as follows: A first lieutenant or captain may serve in

a first lieutenant slot; a captain or major may serve in a captain

slot, and a major may serve in a major slot; however, a major

may not serve in a lieutenant colonel slot unless that major is on

a recommended list for promotion to lieutenant colonel, and

within one hundred twenty (120) days after being promoted to

lieutenant colonel a lieutenant colonel not filling a lieutenant

colonel slot must find a lieutenant colonel vacancy and be

assigned to that vacancy so as to fill a lieutenant colonel slot in

order to continue in the Active Reserves Training Category B,

Pay Group B.

The request for assignment is made directly to the Active

Duty Staff Judge Advocate who either approves of disapproves

the request, and in the event of a change of assignment, which

was approved in Lt. Col. Bergen’s case by the Staff Judge Ad-

vocate at Homestead Air Force Base, and upon re-assignment,

the Air Reserve Officer on that Base, the Headquarters of that

Command and Air Reserve Personnel Center, Denver,

Colorado, all are notified that the existing Mobilization Aug-

mentation Grade Vacancy has been filled by a named reserve

officer. All Training Authorizations (AF Form 40A) are sent to

ARPC and training pay is received from ARPC by the reserve

officer. That reserve officer is not thereafter removed from that

slot or replaced by another reserve officer even though the se-

49

cond officer may be senior to the first officer filling that slot as

long as the first reserve officer filling that slot is satisfactorily

performing his duties and fulfilling his active reserve com-

mitments.

Lieutenant Colonel Bergen, while a major and while on a

recommended list for promotion to lieutenant colonel, found

and was reassigned to fill a lieutenant colonel vacancy existing

in the Office of the Staff Judge Advocate, Homestead Air

Force Base, Florida, effective 5 August 1969, under the

authority set forth in AFM 35-3.

Prince Tucker, Jr.

MSgt. U.S.A.F.

249-54-3959

Sworn to and subscribed before me this 3rd day of December,

1976. .

Ellen F. Upchurch

Notary Public, Georgia

SEAL

My commision expires September 22, 1977

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Petition for

Writ of Certiorari was on this date served on respondent’s

counsel of record, whose addresses and identities are as

follows:

Honorable Griffin B. Bell

Attorney General

Department of Justice

Washington, D.C. 20530

John W. Showalter, Esquire

Attorney, Civil Division

Department of Justice

Washington, D.C. 20530

by placing copies of same in an authorized depository for mail

in a properly addressed envelope with sufficient postage

thereon to insure first class delivery.

This day of August, 1977.

JOSEPH B. BERGEN

Attorney for Petitioner

Columbia Square Law Offices

125-127 Habersham Street

Savannah, Georgia 31401

Telephone: (912) 233-8001

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