# Petition — Bergen v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 939

## Text

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

51

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2391%3A1. Public record. Not legal advice.