Petition — Knehans v. Alexander

Supreme Court brief1978

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b aMCR REL RODAK, JR. CLE”K

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

MAJOR ADOLPH H. KNEHANS, JR..

Petitioner,

CLIFFORD L. ALEXANDER

Secretary of the Army,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

DAVID REIN

FORER & REIN

733 - 15th Street, N.W.

Washington, D.C. 20005

JOAN GOLDBERG

275 Madison Avenue

New York, New York 10016

Attorneys for Petitioner.

——= CSCEESENEEGSEEEF | oS ese

Wastungton, 0.C. + THIEL PRESS - (202) 638-4521

(1)

TABLE OF CONTENTS

Page

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CE PUMEUEEEED ces ectce sovenotestese's 2

Dee GPSTEED ccd becdcoecececeseceesess 3

DEPRCEeE GEO BU GUD cece ccccccccesesecse 5

1. The Proceedings in the Army ........-.-2-eee00. 5

2. The Proceedings in the District Court .......... 9

3. The Decision of the Court of Appeals Below ...... 11

REASONS FOR ALLOWING THE WRIT ............ 12

GEE. 680 6a see ees ede eeessonetesonnee 21

APPENDICES:

Appendix A—Opinion of the District Court ........ la

Appendix B—Opinion of the Court of Appeals ..... l4a

Appendix C—Judgment Below .............0005. 32a

Appendix D—Order Deyning Petition for Rehearing ... 34a

TABLE OF AUTHORITIES

Cases:

Atchison, Topeka and Santa Fe Ry v.

Wichita Board of Trade, 412 U.S. 800 (1973) ........ 19

Beckham v. United States, 392 F. 2d 619

Pt Shs 6c abéeue wees ee ened nedecuneaes 20

Boyd v, United States, 207 Ct.Cl.1(1975) ......... 19, 20

Brenner v. United States, 202 Ct.Cl. 678 (1973) ...... 19,20

Brooks v. United States, No. 302-75

SPE seeweceecdae an eendeeee ees 15

Duhon v. United States, 461 F. 2d 1278

Din Sy cenenkee eb 6tenee 66s 0646S 00860 15

Knehans v. Callaway, 403 F. Supp. 290

nn 6646 cece deen es 606 68606 O KO RES 2

Ricker v. United States, 396 F. 2d 454

Se GT wheat a6 tae nen 666 ee 4 een wees sees 15

(22)

Cases, continued: Page

Sanders v. United States, No. 157-74

ls rer Ts eS ore eee ree eee ee ee 13

SEC v. Chenery Corp., 318 U.S. 80 (1943) .......... 20

SEC v. Chenery Corp., 332 U.S. 194 (1947) .......... 19

Service v. Dulles, 354 U.S. 363 (1957) ..........220- 13

Urban Law Institute of Antioch College v.

Secretary of Defense, Civ. A #76-0530

Oe, Eerrrrrerre rec TeT Re eT ETE 20

United States ex rel Johnson v. Shaughnessey,

$96 U.S. 806 (1949) on. nc ccccccccccccccrscees 14

United States v. Shaughnessy, 347 U.S. 260 (1945) ...... 13

Vitarelli v. Seaton, 359 U.S. 535 (1959) ww we ee ee eee 13

Weiss v. United States, 408 F. 2d 416 (Ct.Cl. 1969)

Cesescte ee hee heehee 88 14, 15, 16

Yee v. United States, 512 F. 2d 1383 (Ct.Cl. 1975) .... 15

Statutes:

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SO GB, BOGS awe cece rivccecceseeseecsenee 5, 5

SO UB. SRR cccccccsecevccsveccvccccccs 4,6

TB UBL. SIBBHR cnccccscccvvesevesvccccces 2

Texts and Articles:

Davis, Administrative Law (3rd ed. 1972) ........+.+--. 19

Glosser and Rosenberg, Military Correction

Boards: Administrative Process and Review

by the United States Court of Claims,

23 Am. U.L.Rev. 391 (1978) 2... ccc ccc ccccccces 13

Stichman, Developments in the Military

Discharge Review Process, 4 Military Law

Reporter GOO) 2... ccc cece ccc r cece sessccces 20

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

MAJOR ADOLPH H. KNEHANS, JR.,

Petitioner,

CLIFFORD L. ALEXANDER

Secretary of the Army,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Major Adolph H. Knehans, Jr. petitions for a writ of

certiorari to review a judgment of the United States

Court of Appeals for the District of Columbia Circuit

which affirmed a judgment of the United States District

Court for the District of Columbia denying petitioner’s

request to set aside his discharge from the Army and to

order his reinstatement.

OPINIONS BELOW

The opinion of the District Court is reported at 403

F Supp. 290, sub nom, Knehans v. Callaway. It 1s

reproduced in Appendix A hereto. The opinion of the

Court of Appeals has not yet been reported. It is

reproduced in Appendix B hereto.

JURISDICTION

The judgment sought to be reviewed was entered on

October 3, 1977 (Appendix C). A timely petition for

rehearing was denied on November 3, 1977 (Appendix

D), Circuit Judge Robinson dissenting. The jurisdiction

of the Court is conferred by 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the Army can validly discharge an Army

officer on the ground of having been twice passed over

for promotion even though the statutory procedure

prescribed by Congress has not been followed.

2. May a District Court Judge excuse the failure of

the Army to follow the statutory procedure prescribed

by Congress for the elimination of Army officers, on

the ground that in his judgment the petitioner’s Army

record did not justify his promotion in any event.

3. Can the decision of an Army Board for Correction

of Military Records which refused to grant petitioner

relief despite an admittedly material error in his records

be upheld as not arbitrary and capricious in the absence

of any findings of fact by the Board or any statement

as to the reasons for its decision.

ar ete we

STATUTES INVOLVED

10 U.S.C. §1552 provides in pertinent part:

(a) The Secretary of a military department, under

procedures established by him and approved by the

Secretary of Defense, and acting through boards of

civilians of the executive part of that military

department, may correct any military record of that

department when he considers it necessary to correct an

error or remove an injustice... .

10 U.S.C. §3297 provides:

(a) Under such regulations as he may prescribe,

the Secretary of the Army shall detail selection boards,

to meet at times prescribed by him, to recommend

promotion-list officers and brigadier generals of the

Regular Army for promotion in the Regular Army.

Each board shall be composed of at least five officers

of the Regular Army who hold a regular or temporary

grade above lieutenant colonel, and who are senior in

regular grade to, and who outrank any officer

considered by that board... .

(b) No selection board may serve longer than one

year and no member may serve on two consecutive

boards for promotions to the same grade, if the second

board considers any officer considered but not

recommended for promotion by the first.

that he will perform his duties without prejudice or

partiality, having in view the special fitness of officers

and the efficiency of the Army.

(d) Except as otherwise provided by law, pro-

motion-list officers and brigadier generals of the Regular

Army may be promoted to the regular grades of captain

through major general only when recommended by a

selection board. A recommendation for promotion must

be made by the majority of the total membership of

the board. Notwithstanding any other provision of law,

a board that is to recommend officers for promotion

whom it considers to be the best qualified may

recommend only those officers whom it also considers

to be fully qualified.

meets, any officer eligible for consideration by that

board is entitled to send a letter, through official

channels, calling attention to matters of record in the

Department of the Army concerning himself that he

considers important. The letter may not contain any

reflection upon the character, conduct, or motives of

any officer, or criticism of any officer.

10 U.S.C. §3303 provides:

(a) In this subtitle, “deferred officer’’ means a

promotion-list officer considered for promotion to the

grade of captain, major, or lieutenant colonel under

section 3299 of this title, but not recommended for

promotion.

(b) The years of service with which a deferred

officer is entitled to be credited for promotion purposes

shall be reduced so that one year after the date on

which he would have been promoted had he been

recommended by a selection board he will not have

more than 7, 14, or 21 years of service, if in the grade

of first lieutenant, captain, or major, as the case may

be.

the next selection board considering officers of his

grade and promotion list. If recommended by this

board, his name shall be placed on the applicable

recommended list with the other officers recommended

by the board, in the same order among themselves as

on the promotion list, but below officers placed on that

list by an earlier board., If a deferred officer is

promoted upon the recommendation of the next board

considering officers of his grade, his first failure does

not count as a failure of selection when he is thereafter

considered for promotion to another regular grade.

(d) A deferred officer who is not recommended

by the next selection board considering officers of his

grade and promotion list shall —

(1) if he is eligible, be retired under section

3913 of this title;...

(3) if he is not eligible for retirement under

section 3913 of this title or any other provision of law,

be honorably discharged on such date as may be

requested by him and approved under regulations to be

prescribed by the Secretary of the Army, but not later

than the first day of the seventh calendar month after

the Secretary approves the report of that board, with

severance pay computed by multiplying his years of

service, but not more than 12, computed under section

3927(a) of this title, by two months’ basic pay of the

grade in which he is serving on the date of his

discharge. However, no person is entitled to severance

pay under this section in an amount that is more than

$15,000... .”

STATEMENT OF THE CASE

1. The Proceedings in the Army

Petitioner, a major in the regular army, was twice

passed over for promotion by Army Selection Boards.

These Selection Boards are set up under Congressional

mandate, 10 U.S.C. $3297, with the proviso that any

Army Officer who is passed over for promotion by two

successive statutory Selection Boards shall, if not

cligible for retirement, be honorably discharged. 10

U.S.C. §3303(d). Petitioner’s second pass-over was

approved by the Secretary of the Army on April 24,

1973, thus making petitioner subject to mandatory

discharge on November 1, 1973, and petitioner was so

advised. The letter of advice stated that “The

{Selection} board impartially considered the entire

record of each officer, including efficiency ratings,

comments on efficiency reports, schooling, commenda-

tions and types of assignments.”

Petiitioner, who was stationed in Germany at the

time, sought legal advice in an effort to challenge the

legality of his pending discharge. His counsel’s inquiry

as to his status was responded to by the Chief of the

Promotion Board of the Army on August 3, 1973, as

follows (emphasis supplied):

Dear Mr. Collins:

This is in reply to your inquiry regarding the

promotion status of Major Adolph H. Knehans, Jr.,

448-38-4175, Corps of Engineers.

The law requires that the promotion of officers on

active duty be made on a fair and equitable basis

and that selection be based on ability and

efficiency as well as seniority and age. The

selection of officers for promotion is accomplished

by selection boards staffed with mature and

experienced officers. They review the overall

record and manner of performance of each officer,

and they compare his record with those of other

officers being considered. Department of the Army

does not prescribe specific qualifications necessary

for promotion. Accordingly, no single factor is

used by the selection board as a determinant for

- arene —

selection or nonselection for promotion. The

officers found best qualified are then recom-

mended for promotion by the boards, and the

Army places implicit faith in their findings.

In response to your request, Major Knehans’

official military records have been reviewed and

evaluated in detail. The review confirmed that his

records were properly constituted when viewed by

the Department of the Army Selection Boards that

adjourned on 18 February 1972 and 22 February

1973 and failed to recommend him for promotion

to major, Regular Army. Since his records were

without material error when viewed by the

aforementioned selection boards, no basis presently

exists to afford him promotion reconsideration.

Under the established policy of the Department of

the Army, an officer may be afforded promotion

reconsideration only when it is determined that a

material error existed in his records when viewed

by the regularly constituted Selection Beards. A

material error in an officer’s records as viewed by

the selection board exists when there ts a missing

efficiency report that should have been viewed by

that particular board, or a major change is made to

an efficiency report that was seen by a selection

board which failed to recommend an officer for

promotion.... An officer’s official military ef-

fictency file is the primary document furnished the

selection boards convened for the purpose of

considering officers for promotion. ...

The specific reasons for the decision of the

selection board in any individual case are not

known outside the board inasmuch as the board is

not permitted to divulge such information. How-

ever, a selection board bases its decision on an

officer’s overall manner of performance and not on

any particular period or phase of his career. No

one factor is given overriding consideration. Since

the promotion selection board is prohibited from

divulging its deliberations, we can only conclude

that, when compared with all officers who were

eligible, Major Knehans was not as well qualified as

those selected.

However, petitioner, on examination of his file

discovered that, contrary to the letter from the Chief of

the Promotion Board quoted above, his file was not

properly constituted when viewed by the statutory

Selection Boards. It did not contain several letters of

recommendation and appreciation which shoula have

been included in the file sent to the Selection Boards.

Most significantly, it contained an unfavorable Officer

Efficiency Report for the period March 22, 1971, to July

16, 1971, which was invalid under Army regulations. The

period in question came late in petitioner’s career and

only a short interval before petitioner’s case was

submitted to the first Selection Board in February,

1972. For this reason, the Chief of petitioner’s branch

of Service (the Engineering Branch) found that the

inclusion of this invalid report was particularly harmful

since it would appear to the Selection Boards that

petitioner’s performance and career was on a “down-

ward trend”, thus carrying considerably more weight

than a negative report early in petitioner’s career.

On September 17, 1973, the Army ruled that the

efficiency report in question was invalid and accord-

ingly removed it from petitioner’s official records. But

it refused to set aside the action of the statutory

Selection Boards which had acted on the basis of this

invalid report, or to delay petitioner’s discharge

scheduled for November 1. Although a finding was

made that the error in petitioner’s file was material, the

only relief afforded petitioner was to send his case to a

so-called Standby Advisory Board. This Standby

Advisory Board has no statutory basis but is entirely a

creation of Army Regulations. (/nfra, pp. 2a, 18a) Fur-

ther, this Standby Board was advised that petitioner had

been twice passed over by statutory Selection Boards

and was scheduled for discharge on November 1, 1973.

On October 25, the Standby Board failed to recom-

mend petitioner for promotion and petitioner was in

fact discharged on November 1, 1973.

2. The Proceedings in the District Court

Petitioner filed suit in the District Court asking (1)

that his discharge be set aside, (2) that the findings of

the statutory Selection Boards be vacated, and (3) that

his case be resubmitted to Statutory Selection Boards

on the basis of a correct and accurate personnel file. On

April 18, 1974, the district court, over petitioner’s

objection, remanded the case to the Army Board for

Correction of Military Records (herein called ABCMR)

for consideration of petitioner’s contentions.'! The

ABCMR is a board of civilians established by the

Secretary of the Army pursuant to 10 U.S.C. §1552.

Its function is to “correct any military record...

when ...necessary to correct an error or remove an

injustice’’. It is given no statutory role in the promotion

process. Before the ABCMR the Army took the

position that petitioner was not entitled to relief

because he had failed to prove that his non-selection for

promotion was “solely” because of the inclusion of the

invalid efficiency report. According to the Army,

petitioner had failed to carry this burden because, “‘The

IThis remand was made on the ground that the ABCMR

afforded petitioner an administrative remedy which he was

required to exhaust (infra, p. 2a).

specific reasons for selection or nonselection of an

officer are not known since these reasons are not

reported or recorded by the selection boards.” The

ABCMR denied petitioner any relief. It made no

findings of fact and gave no reasons in support of its

action, stating only that “insufficient evidence has been

presented to indicate probable material error or

injustice.” The case was then returned to the District

Court.

On the return of the case to the District Court, the

case was submitted on cross motions for summary

judgment. The District Court found that the inclusion

of the invalid OER in petitioner’s file and the failure to

include certain letters of commendation violated army

regulations. (/nfra, p. 5a.) It then posed the issue

before it as follows: “The first question befcre the

court, therefore, is whether plaintiff is now entitled to

reconsideration by two Selection Boards based upon a

properly constituted file, in light of the fact that his

file as presented to the prior two Selection Boards was

constituted in violation of army regulations.” (Jnfra, p.

5a.) Although an affirmative answer to this question

would appear to be obvious and required by the

precedents in this Court, see infra p. 13, the District

Court answered it in the negative. It reached this

conclusion by the following route. According to the

District Court, “it is not enough to find that the

Selection Boards violated Army regulations; the plaintiff

must further show that the ABCMR acted arbitrarily

and capriciously in failing to correct the error of the

Selection Boards.” (Infra, p. 6a.) As noted above, the

ABCMR made no findings and stated no reasons for its

decision. Nonetheless, the District Court held that

petitioner had failed to show that the decision of the

ABCMR was arbitrary and capricious, because petitioner

had failed to carry the burden of proving that the error

in his file “necessarily caused the non-promotion

decisions.”’ (/nfra, p. 10a.) Since the decisions of a

Selection Board are discretionary in character, and the

members are “prohibited from divulging its delibera-

tions” or setting forth their reasons for nonselection in

any particular case, it was of course impossible for the

petitioner to meet this burden. The District Court

further expressed its own view that petitioner’s record

was not so outstanding as to justify promotion. (/nfra,

p-. 9a.) Further, it dismissed the judgment of the Chief

of the Engineering Branch that the invalid negative

OER was a significant factor in petitioner’s non-

promotion on the ground that the Engineering Branch

was not the Selection Board, and it did not appear that

the Selection Boards, which, as noted, gave no reasons

for its decisions, placed the same significance on the

invalid OER as did the Chief of the Engineering Branch.

(Infra, p. 9a.)

3. The Decision of the Court of Appeals Below

The Court of Appeals affirmed by a divided opinion,

Judge Robinson dissenting. Petitioner’s contention, that

the admitted violation of Army regulations invalidated

the decisions of the Statutory Selection Boards not to

promote and petitioner’s consequent discharge, was

dismissed by the majority with the following comment:

“Fortunately, we are not required by the circumstances

presented here to accept this extreme position,

interfering as it would with personnel matters better

left in most cases to the discretion of the mili-

tary...,for he is entitled to no such relief either by

statute or regulation.” (/nfra, pp. 17a - 18a.) This view,

of course, is completely contrary to the normal rule that

an agency’s violation of its own regulations invalidates

the agency action. See im/ra, p. 13. So fa, as the action

of the ABCMR was concerned, the majority stated only

that it agreed with the district court’s conclusion that

the petitioner “had failed to sustain his burden of

proof” that the decision of the ABCMR was “arbitrary,

capricious or otherwise unlawful.” (/nfra, p. 20a.)

REASONS FOR ALLOWING THE WRIT

1. The military persuades its officers to make a

career of military service with the assurance that

satisfactory performance will result in advances in rank

and, after the requisite number of years, retirement. To

be sure, officers are also informed that as they advance

in rank, they will be competing with their peers for

further advancement, and their failure to advance at

that stage will lead to their elimination. But none of

this is to be done arbitrarily or as a matter of caprice.

This method of selection out is required to be done in

accordance with a precise procedure prescribed by

Congress providing that an officer will be released from

the service if he is twice passed over for promotion by

Statutory Selection Boards. According to the Army this

procedure is “fair and equitable” because the “selection

of officers for promotion is accomplished by selection

boards staffed with mature and experienced officers”

who review and evaluate in detail “properly con-

stituted” military records, and “the Army _ places

implicit faith in their findings.”

But this procedure is “fair and equitable” only if the

decisions of the Statutory Selection Boards are based

upon accurate records of the officer’s career per-

formance. The petitioner here has been told that his

records as presented to the statutory selection boards

contained “material” error; but that he was not entitled

co relief because he failed to prove that this error

necessarily caused the non-promotion decision. Of

course, since the grounds for decision of the Selection

Boards are not divulged, it was impossible for petitioner

to meet this burden. Understandably, petitioner cannot

subscribe to the Army’s assurance that his selection out

was done on a “fair and equitable’”’ basis. With the

contraction of the armed services after the end of the

war in Vietnam, more and more officers have been

faced with probiems similar to that of the petitioner,

and challenges to the failure of the service to abide by

statutes and regulations in administering the selection

out process have been steadily increasing. See Order of

Court of Claims of March 15, 1977, in Sanders v.

United States, No. 157-74; Glosser and Rosenberg,

Military Correction Boards: Administrative Process and

Review by the United States Court of Claims, 23 Am.

U.L. Rev. 391, 403 (1973). Accordingly, the issue as to

the degree to which the services are bound by

Congressional mandate for selection out and their own

regulations implementing these statutory procedures has

become increasingly significant. Especially in the light

of the difference between the court below and the

Court of Claims in their approach to this question, see

infra pp. 14 - 15, it is important to a great number of mil-

itary officers that this Court settle the procedures that

must be followed to establish a fair and equitable proce-

dure for promotion and elimination.

2. The decision of the court below is in conflict with

the decisions of this Court. This Court has established

the settled principle that the failure of a government

agency to follow statutory procedures or its own

regulations invalidates the agency’s action. Vitarelli v.

Seaton, 359 U.S. 535 (1959); Service v. Dulles, 354

U.S. 363 (1957); United States v. Shaughnessy, 347

U.S. 260 (1945); United States ex rel Johnson v.

Shaughnessy, 336 U.S. 806 (1949). The court below

held that this principle does not apply to the Armed

Services presumably because “personnel matters [are]

better left in most cases to the discretion of the

military.’’ But the question before the Court was not a

“personnel matter,” but rather an issue of law as to the

procedures required to be followed. Indeed, as we show

below, the court below improperly entered into

“personnel matters” by discussing not the legality of

the procedure employed but rather the merits of

petitioner’s non-promotion.

3. The decision below is in conflict with decisions in

the Court of Claims. The court below held that so long

as petitioner was passed over by two_ properly

constituted statutory selection boards, it did not matter

that his record as submitted to those Boards was

erroneous. This view is in conflict with the view

expressed by the Court of Claims. As stated by the

Court of Claims in Weiss v. United States, 408 F.2d

416 at 419 (1969) (emphasis supplied):

“Selection Boards have and must have wide

discretion in performing their duties. We do not

think the courts are or should be in _ the

‘promotion business’. But the selection procedure

must follow the law. The documents which are

sent to a Selection Board for its consideration

therefore must be substantially complete, and must

fairly portray the officer’s record.”

Judge Davis, concurring, added the following at 423:

“I join in the court’s opinion but would go

further and hold explicitly that the Selection

Board’s action was invalid because it did not have

the proper statutory ‘record’ before it. Also, I wish

to reserve expressly (the court’s opinion does so

implicitly, I believe) the question whether a

Correction Board proceeding can ever ‘cure’ a

defective Selection Board determination in the

sense that the Secretary could decide — as a result

of a Correction Board proceeding which was free

from the defects of the Selection Board — that the

officer had been properly ‘selected out’. The

statute seems on its face to give this particular

‘selecting out’ power to a Selection Board, not the

Secretary, and it may be doubted that an officer

can ever be so separated except by the valid action

of a Selection Board.”

According to the majority opinion, “nothing conditions

the validity of Selection Board proceedings upon the

review of a perfectly compiled personnel file.”’ (Infra, p.

18a.) If, by this language, the majority means that a file

need not be free from technical or meaningless error,

then we would have no quarrel with the statement. But,

if, as appears from the context of this case, the

majority is holding that Selection Board proceedings are

valid even if they are based on files which contain

material and significant errors, then the majority

opinion is plainly wrong and is contrary to the view of

the Court of Claims as expressed in Wetss v. United

States, supra; Yee v. United States, 512 F.2d 1383

(1975); Ricker v. United States, 396 F.2d 454 (1968);

Duhon v. United States, 461 F.2d 1278 (1972).

Both the District Court and the majority below

explicitly recognized that the error in petitioner’s file

was material and that the military recognized it as such.

(Infra, pp. 2a, 18a.) * Having determined that the error in

2Cf. Brooks v. United States, U.S. Court of Claims No.

302-75, decided February 23, 1977, where the court said at slip

opinion, p. 4: “It is also clear that an OER is considered to be

the most important document in a selection folder.”

petitioner's file was “material,” the Army submitted

petitioner’s case to an Army Standby Advisory Board.

But an Army Standby Advisory Board is not a

statutory board (/nfra, pp. 2a, 18a) and cannot be sub-

stituted for the Statutory Boards and the procedure pro-

vided by Congress, Weiss v. United States, supra.

4. Both the District Court and the majority below

held that even though the Selection Boards failed to

follow Army regulations, this error could be cured by

presenting a correct file to the Army Board for the

Correction of Military Records. (/nfra, pp. 5a, 19a.) Ac-

cording to both opinions, the ABCMR is a “vital part of

the promotion apparatus established by Congress.” (Infra,

pp. 5a, 19a.) But this misconceives the function and role

of the Army Board for Correction of Military Records as

related to Statutory Selection Boards. Congress did not

vest the responsibility to determine whether or not

petitioner should be promoted in the Army Correction

Board; that responsibility is vested in Statutory

Selection Boards. See Davis, J., concurring in Wetss v.

United States, quoted supra pp. 14-15. And the role of

those Statutory Selection Boards cannot be understated.

According to the Army itself (emphasis supplied):

“The law requires that the promotion of officers

on active duty be made on a fair and equitable

basis and that selection be based on ability and

efficiency as well as seniority and age. The

selection of officers for promotion ts accomplished

by selection boards staffed with mature and

experienced officers. They review the overall

record and manner of performance of each officer,

and they compare his record with those of other

officers being considered. Department of the Army

ddes not prescribe specific qualifications necessary

for promotion. Accordingly, no single factor is

used by the selection board as a determinant lor

sclection or non-selection for promotion. The

officers found best qualified are then

recommended for promotion by the boards, and

the Army places implicit faith mm thetr findings.”

Thus, an Army Correction Board composed of

civilians is not a substitute for two statutory selection

Boards “staffed with mature and experienced officers.”

And if those selection boards acted on an erroneously

constituted statutory record, there is no substance to

the contention that this error can be overlooked

because the Correction Board had a proper record. Of

course, the Army Correction Board was empowered to

grant petitioner relief. (/nfra, p. 19a.) But the issue

before the Board on which relief depended was not

whether or not petitioner should have been promoted,

but rather whether or not the proceedings before the

Statutory Selection Boards were tainted with error so as

to require relief. Since, as found by the district court

below, petitioner’s “file as presented to the prior two

Selection Boards was constituted in violation of Army

regulations” (infra, p. 5a), the failure and refusal of the

Army Board for Correction of Military Records to grant

relief was certainly arbitrary and capricious.

5. In holding that the decision of the Army

Correction Board was not arbitrary, capricious or

otherwise unlawful, the majority relied on the findings

and reasoning of the District Court. (/nfra, p. 20a.) But

the District Court upheld the decision of the Army

Correction Board on the ground that petitioner had

failed to carry the burden of showing that the error in

his file “would necessarily lead to a non-promotion

decision by a Selection Board.” (Infra, p. 10a.) But this

is an impossible and unfair burden to place on an

officer. As stated by the Army:

“Department of the Army does not prescribe

specific qualifications necessary for _ pro-

motion. ...”

* * *

“The specific reasons for the decision of the

selection board in any individual case are not

known outside the board inasmuch as the board is

not permitted to divulge such information.”

In the light of the above, it was completely

unreasonable to impose upon petitioner the requirement

that he prove that the admittedly material errors in his

file would necessarily have changed the Selection

Board’s decision. Petitioner is clearly entitled to relief

on a showing that these errors are material and

accordingly could have made a difference.

Moreover, the District Court based its finding that

the error in petitioner’s file would not necessarily have

made a_ difference on its own examination of

petitioner’s file and its own = determination that

petitioner was not worthy of promotion as compared to

his peers. (/nfra, p. 9a.) But it was not the business of

the District Court to review petitioner’s Army record or

to render a judgmert as to whether or not petitioner

merited a promotion. Its sole function was to determine

whether or not the Army acted in accordance with

statute and regulations. Having found that the Army

did not (infra, p. 5a), it should have granted relief and

not ventured into an inquiry as to whether or not

petitioner merited a promotion.» By upholding the

District Court, the majority in effect sanctioned an

Curiously, in doing so, the District Court held that the

opinion of the Chief of the Engineering Branch (that the invalid

OER in petitioner's file was a significant and material error)

should be given no weight since the promotion process was

entrusted by Congress to Selection Boards.

invasion into an area courts have generally carefully

warned against, i.e., the entrance of courts into the

“promotion business.”

The function of the courts in cases of this nature is

not to enter into the “promotion business” but rather

to hold the service to strict compliance with Congres-

sional mandates and the service branch’s own regulations.

Cf. Brenner v. United States, 202 Ct. Cl. 678 (1973);

Boyd v. United States, 207 Ct. Cl. 1 (1975).

6. Both the District Court and the Court of Appeals

held that petitioner was not entitled to relief because

he had failed to carry his burden of proving that the

ABCMR had acted arbitrarily and capriciously. As we

have shown, this conclusion rested on a misconception

of the role of the ABCMR in the promotion process

and a disregard of the Congressional decision vesting the

authority to promote or not to promote in Selection

Boards. But even if the ABCMR had a proper role in

reviewing the refusal to promote petitioner, the

procedures it employed were improper. The Board held

no hearings, made no findings of fact and stated no

reason for denying relief. It stated only the ritual

formula that “insufficient evidence has been presented

to indicate probable material error or injustice.”

Disposition of cases by such a ritual formula is a_

violation of the “simple but fundamental rule of

administrative law” that a government agency must

state the reasons for its decisions and facts relied upon.

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947);

Atchison, Topeka and Santa Fe Ry v. Wichita Board of

Trade, 412 U.S. 800, 807 (1973) (Marshall J., plurality

opinion). See also Davis, Administrative Law (3rd ed.

1972) at 320. As this Court has emphasized, ‘“‘the

orderly functioning of the process of review requires

that the grounds upon which the administrative agency

acted be clearly disclosed and adequately sustained.”

SEC v. Chenery Corp., 318 U.S. 80, 94 (1943).4

Further, the decisions of the courts below that it will

sustain a decision of the ABCMR in the absence of any

findings of fact or statement of reasons is directly

contrary to the holding of the Court of Claims, see e.g.,

Beckham v. United States, 392 F.2d 619 (1968).° And

most significantly the Department of Defense has now

conceded that Boards for the Correction of Military

Records must make findings of fact and state the

ground upon which relief was denied, and that such

grounds must include a discussion of an applicant’s

claims. Urban Law Institute of Antioch College v.

Secretary of Defense, Civ. A. No. 76-0530 (D. D.C. Jan.

31, 1977). See tor a discussion of the case and the

issues, Stichman, Developments in the Military Dis-

charge Review Process, + Military Law Reporter 6001.

4 arguably, since the .) .istoms of Selection Boards are purely

discretionary, they are not subject to the same requirement.

Hlowever, if them discretionary judgments are not subject to

review on the merits, it becomes all the more essential to require

the Boards to adhere to the procedure prescribed by statute and

regulations. Brenner v. United States, supra, Boyd v. United

States, supra. And, of course, the issue before the ABCMR was

not whether or not petitioner merited a promotion but rather

whether his case had been decided in accordance with applicable

statutes and regulations.

othe failure of the ABCMR to set forth any reasons for its

decisions made it virtually impossible for the petitioner to meet

the burden imposed upon him by the court to show that its

decision was “arbitrary and capricous.”

CONCLUSION

Certiorari should be granted and the judgment below

should be reversed.

Respectfully submitted,

DAVID REIN

FORER & REIN

733 - 15th Street, N.W.

Washington, D.C. 20005

JOAN GOLDBERG

275 Madison Avenue

New York, New York 10016

Attorneys for Petitioner.

APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MAJOR ADOLPH H. KNEHANS, JR., )

Plaintiff, )

v. ) Civil Action

) No. 1978-73

HOWARD H. CALLAWAY,* )

)

Secretary of the Army,

Defendant.

MEMORANDUM AND ORDER

Plaintiff, formerly a Major in the regular army,

brought this action on October 30, 1973, to prevent his

imminent honorable discharge from the Army. Prior to

filing suit, plaintiff had twice been passed over for

promotion by Selection Boards. By statute, a com-

missioned officer who has been passed over for

promotion by two consecutive Selection Boards shall, if

not eligible for retirement, be honorably discharged

within seven months of the date that the Secretary

approves the action of the second Selection Board. 10

U.S.C. §3303(d) (1970). Accordingly, plaintiff was

ordered discharged on November 1, 1973.

Plaintiff’s personnel file, when presented to both

boards, was admittedly defective. Specifically, the file

(1) contained a negative Officer Efficiency Report

(OER) which was invalid, (2) did not contain several

letters of recommendation and appreciation which

*After the institution of this suit, Martin R. Hoffman became

the Secretary of the Army. Pursuant to Rule 25(d), F.R.C.P.,

Hoffman is automatically substituted as a party. :

plaintiff! contends should have been included in his file,

and (3) exhibited several letters of recommendation in

the file which had not been stamped by the second

Selection Board, which leads plaintilf to conclude that

the second Selection Board did not consider those

letters. On September 17, 1973, the Army voided and

removed the negative OER from plaintiff's file, since

plaintiff had not served under the supervision of the

rating officer for the required 90 days. On October 2,

1973, the Army determined that removal of the

negative OER = constituted a “material change” in

plaintiff's file, and accordingly reterred his case to the

Army Standby Advisory Board.! The Standby Advisory

Board tailed to recommend plainuff for promotion on

October 25, 1973.

This court denied plaintiff’s application for a

temporary restraining order on October 30, 1973, and

then on April 18, 1974, remanded the case to the

Army Board for the Correction of Military Records

(ABCMR),- so that plaintiff could properly exhaust his

administrative remedies. On November 6, 1974, the

ABCMR “determined that insufficient evidence has

been presented to indicate probable material error or

injustice,” and denied plaintiffs application for relief.

Presently betore the court are Cross-Motions for

Summary Judgment.

The Army Standby Advisory Board is not a statutory board,

as are the Selection Boards. The Standby Advisory Board was

created by Army Regulation 624-100, 418(b), to afford

promotion reconsideration “only in those cases where material

error was present in the records of an officer when reviewed by a

seleetion board.”

“The ABCMR was created pursuant to 10 U.S.C. §1552(a)

(1970). See 32 C.F.R. §581.3 (1975).

Plaintiff alleges several errors. First, he maintains that

he was statutorily entitled to consideration by two

Selection Boards, that consideration by the Selection

Boards based upon a deficient file does not constitute

the consideration to which he is entitled, and therefore

that his discharge violates due process of law. Moreover,

plaintiff contends that the failure of the Selection

Boards, the Standby Advisory Board, and the ABCMR,

to provide him with a prior hearing violates the due

process clause of the Fifth Amendment. Defendant, on

the other hand, contends that this court has no

jurisdiction to review the actions of the Army which

plaintiff complains of, and even if the court does have

jurisdiction, it must uphold the finding of the ABCMR,

since that action was not arbitrary and capricious.

Finally, defendant argues that plaintiff has no

recognized property or liberty interest in continued

employment in the regular army, and therefore the due

process clause does not apply to his discharge.

JURISDICTION

It is clear that this court has jurisdiction over

plaintiff's complaint. Plaintiff alleges that the defendant

violated 10 U.S.C. §3303 and his own regulations by

permitting the Selection Boards to pass on_ his

promotion based upon a defective file, and further that

he violated the Fifth Amendment by not affording

plaintiff a hearing before the various boards. Courts will

not hesitate to review military action allegedly contrary

to statute or regulation. See Harmon v. Brucker, 355

U.S. 579, 581-82 (1958); Hodges v. Callaway, 499 F.2d

417, 419 n.2 (5th Cir. 1974); Peavy v. Warner, 493

F.2d 748, 750 (5th Cir. 1974); Denton v. Secretary of

the Air Force, 483 F.2d 21, 24-25 (9th Cir. 1973);

United States ex rel. Sledjeski v. Commanding Officer,

478 F.2d 1147, 1150 (2d Cir. 1973). Moreover, while

courts have made clear that they are not in the

“promotion business,” they have reviewed allegations

that actions of Selection Boards in denying promotion

have been procedurally irregular. See Yee v. United

States, 512 F.2d 1383, 1387 (Ct. Cl. 1975); Brenner v.

United States, 202 Ct. Cl. 678, 693 (1973); Weiss v.

United States, 408 F.2d 416, 418 (Ct. Cl. 1969);

Ricker v. United States, 396 F.2d 454, 457 (Ct. Cl.

1968). Finally, this court has jurisdiction over plaintiff's

constitutional claim. See Mindes v. Seaman, 453 F.2d

197 (5th Cir. 1971).

MERITS

Defendant has admitted that the invalid OER should

not have been placed in plaintiff’s file for consideration

by the Selection Boards. Exhibit B at 10-11, Exhibit C

at 22 to Defendant’s Memorandum in Support of

Motion to Dismiss, or in the Alternative for Summary

Judgment. As a result, he directed the Standby

Advisory Board to review the decisions of the Selection

Boards. Neither the failure to include in plaintiff's file

letters of commendation, nor the alleged failure of the

second Selection Board to consider certain letters of

commendation in his file, were stated as bases for

assignment of the case to the Standby Advisory Board.

Plaintiff, however, has pointed to no_ regulation

requiring the Selection Board to stamp letters of

commendation as an indication of consideration. In the

absence of adequate proof to the contrary, the court

will assume that the Selection Boards considered all the

material in plaintiff’s file. See Brenner v. United States,

202 Ct. Cl. 678, 690, 692 (1973). Further, the court

will assume without deciding that failure to include

certain letters of commendation in_ plaintiff's file

violated army regulations.° See footnote 4, mfra. The

first question before the court, therefore, is whether

plaintiff is now entitled to reconsideration by two

Selection Boards based upon a properly constituted file,

in light of the fact that his file as presented to the prior

two Selection Boards was constituted in violation of

army regulations.

The thrust of plaintiff's argument is directed to the

allegedly illegal actions of the Selection Boards. What

plaintiff fails to recognize, however, is that the ABCMR

is a vital part of the promotion apparatus established by

Congress. 10 U.S.C. §1552(a) authorizes the Secretary

of the Army “acting through boards of civilians of the

executive part of that military department,” to “correct

any military record of that department when he

considers it necessary to correct an error or remove an

injustice.’’ The Secretary may award back pay “‘if, as a

result of correcting a record under this section, the

amount is found to be due the claimant.” 10 U.S.C.

§1552(c) (1970). Finally, “without regard to qualifica-

tions for reenlistment, or appointment or reappoint-

ment, the Secretary concerned may reenlist a person in,

or reappoint him to, the grade to which payments

under this section relate.’’ 10 U.S.C. §1552(d) (1970).

Thus, Congress provided, at the Secretary’s discretion,

both an internal review of actions of Selection Boards

and a comprehensive set of remedies. There is nothing

to indicate that Congress contemplated that the

ABCMR could not act through the Secretary to correct

a failure by Selection Boards to follow Army

regulations. Therefore, this court must agree with the

Fifth Circuit that:

3 Army Regulation 624-100, 416(d) outlines procedures for

inclusion of letters of commendation in an officer's file.

It seems quite clear to us that the ABCMR can, if

it determines that [plaintiff] has been illegally

discharged, grant him full reinstatement and

restoration of all rights, thus in effect making him

whole for any injury he might suffer from a

wrongful discharge. Hodges v. Callaway, 499 F.2d

417, 422 (5th Cir. 1974).

Thus, in order to grant plaintiff’s requested relief, it is

not enough to find that the Selection Boards violated

Army regulations; the plaintiff must further show that

the ABCMR acted arbitrarily and capriciously in failing

to correct the error of the Selection Boards. See Yee v.

United States, 512 F.2d 1383 (Ct. Cl. 1975).

In Weiss v. United States, 408 F.2d 416 (Ct. Cl.

1969), Weiss was discharged from the Navy after a

Selection Board found that he had performed unsatis-

factorily and would perform unsatisfactorily in a higher

grade. In his file was a letter of reprimand and an

unsatisfactory fitness report issued after an investigation

into his alleged black market activities in the

Philippines. All fitness reports prior and subsequent to

the unsatisfactory report were said to be “outstanding,”

save one. According to Navy regulations, Weiss was

permitted to respond in his file to all adverse fitness

reports. He responded to the first report, but the

Selection Board met and passed on his promotion

before he could respond to the second. He appealed to

the Board for the Correction of Naval Records (BCNR),

the statutory equivalent of the ABCMR, which

recommended reversal of the Selection Board’s decision

and removal of the letter of reprimand and first adverse

fitness report. The Secretary of the Navy overruled the

BCNR.

—

While at issue was the Secretary’s authority to reverse

the BCNR, the court did discuss what is meant by

“record”:

The Congressional purpose would dictate that the

“record” required to be furnished under that

section be complete and not misleading.

The documents which are sent to a Selectior

Board for its consideration therefore must be

substantially complete, and must fairly portray the

officer’s record. If a Service Secretary place before

the Board an alleged officer’s record filled with

prejudicial information and omits documents

equally pertinent which might have mitigated the

adverse impact of the prejudicial information, then

the record is not complete, and it is before the

Selection Board in a way other than as the statute

prescribes. We cannot endorse the way the law was

complied with here... . 408 F.2d at 419 (emphasis

added).

More recently, in Yee v. United States, 512 F.2d

1383 (Ct. Cl. 1975), the court found the action of the

Air Force Board for the Correction of Military Records

(AFBCMR), in not reversing plaintiff’s discharge, to be

arbitrary and capricious. Yee had been discharged in

1965 for reasons of temporary physical disability

caused by an automobile accident. In 1970, the

Assistant Secretary found that the 1965 discharge had

been an injustice, reinstated Yee, and ordered that his

records be corrected. There was an unexplained five

year gap in his file, however, which apparently caused a

Selection Board io pass over Yee for promotion in late

1970. The AFBCMR found this to be error, and

ordered this pass over to be removed from Yee’s files,

but gave no order to place an explanation in Yee’s files

as to the tive year gap. Subsequently, two Selection

Boards passed over him for promotion, actions which

the AFBCMR upheld. The court stated:

The AFBCMR knew in 1971 that plaintiff’s name

would again be submitted to a Selection Board on

November 8, 1971, yet failed to insure that

plaintiff’s fate would not again be prejudiced by

the same 5-year gap in his record. The Board

further knew of the consequences of its silence

when, in 1973, it reviewed plaintiff’s case after

two subsequent pass overs and a forced discharge.

Yet the AFBCMR saw no reason to grant relief.

512 F.2d at 1388.

As a result, the court found, the AFBCMR acted

arbitrarily and capriciously. The court then ordered that

Yce be reinstated at his former rank with full back pay,

and that his record be corrected to fully explain the

gaps in his file. Egregious as was the action of the

AFBCMR in permitting the Selection Boards to

consider a_ defective file, the Court of Claims

nonetheless found it to be a “‘close case.” 512 F.2d at

1386.

Neither Weiss nor Yee require this court to find the

ABCMR’s action to be arbitrary or capricious. Most of

the OERs, to be sure, are complimentary of plaintiff's

performance. Complimentary language alone, however,

could not support a finding by this court that the

ABCMR acted arbitrarily or capriciously in not

reinstating plaintiff.* First, the valid OERs in plaintiff's

+The language in the letters of commendation which were not

included in the file is no more complimentary than the language

in the valid OERs. Their addition to the file, therefore, would

have been merely cumulative in effect, and the ABCMR could

rationally have concluded that their omission did not result in

plaintiff's nonpromotion.

file show him to be on the same level of ability as the

rest of his peers. Six of the seven OERs covering his

regular army career found either the indorser, or the

rater and indorser both, recommending no promotion

ahead of his peers. Exhibit B, Defendant’s Mem-

orandum in Support of Motion To Dismiss or in the

Alternative for Summary Judgment. The invalid OER

likewise recommended no promotion ahead of his peers.

Moreover, earlier in his career, plaintiff had received a

similar negative report for his performance while

stationed at Okinawa. Thus, even the file as defectively

constituted still “fairly portrayed” plaintiff’s record.

See Weiss v. United States, 408 F.2d 416, 419 (Ct. Cl.

1969).

On june 15, 1972, prior to the action of the second

Selection Board, plaintiff was informed by the Chief of

the Engineering Branch of the Corps of Engineers that

the negative OER was a significant item in his file.

Plaintiff cited this letter to the ABCMR to support his

contention that it was on the negative OER “that the

two earlier non-selection decisions were made.”’ Exhibit

A to Defendant’s Memorandum in Support of Motion

to Dismiss, or in the Alternative for Summary

Judgment, at 3-4. The letter however, makes clear that

the Engineering Branch “[does] not participate in any

promotion board process,” and further, that the

Engineering Brayich was discussing why it — not the

Selection Board — considered the negative OER to be

significant. Exhibit A, supra, at 10a-b.

The record thus does not support the contention that

the two non-selection decisions were caused by the

negative OER. Other reports in the file could have

prompted those decisions, and plaintiff’s file cannot be

characterized as so outstanding that any non-promotion

10a

decision by the ABCMR would be arbitrary or

capricious. In Yee, supra, it was quite obvious that a

live year gap in an officer’s file would necessarily

require explanation before any Sclection Board would

consider his promotion. It is not so obvious that in the

instant case the inclusion of the adverse OER and the

absence of several letters of commendation would

necessarily lead to a non-promotion decision by a

Selection Board. As noted by General Putnam in his

affidavit, in a postwar era, promotions traditionally

slow down as the overall size of the Army is required

to be reduced. Exhibit D to Defendant’s Memorandum

in Support of Motion to Dismiss or in the Alternative

for Summary Judgment, 46. Plaintiff’s record was very

good, but it was not outstanding, and in the absence of

evidence that inclusion of the negative OER necessarily

caused the non-promotion decisions, this court cannot

say that the ABCMR’s refusal to reverse those decisions

was without a rational basis.

DUE PROCESS CONTENTIONS

Plaintiff contends that because his discharge “carries

with it damage to reputation [and] loss of salary and

pension,” a hearing is required before the Selection

Boards and the ABCMR. Plaintiff’s Brief in Support of

Motion for Summary Judgment at 15. Moreover, he

claims that he had “the expectancy after his long

period (14 years) of service that he would hold his

commission until retirement age.” Plaintiff’s Reply to

Defendant’s Opposition to Plaintiff's Motion for

Summary Judgment at 2. Plaintiff thus attempts to

establish that he has sufficient liberty and property

interests to trigger application of the due process clause

to his discharge. See Board of Regents v. Roth, 408

U.S. 564, 572, 576 (1972).

lla

In Roth, supra, the Supreme Court delineated

standards for determining whether a piaintiff possesses a

sufficient property interest to require protection of the

due process clause:

To have a property interest in a benefit, a person

clearly must have more than an abstract need or

desire tor it. He must have more than a unilateral

expectation of it. He must, instead, have a

legitimate claim of entitlement to it. 408 U.S. at

577.

Plaintiff's expectation that he would serve until

retirement finds no support in the statute or regulations

of the Army. 10 U.S.C. §3303 clearly states that an

officer twice passed over for promotion “shall... be

honorably discharged.” Nowhere does the statute

indicate that every commissioned officer can expect to

serve until retirement. Thus, if plaintiff had such an

expectation, it was, in the words of Roth, “unilateral,”

and not a property interest within the meaning of the

due process clause. As the Fifth Circuit concluded in a

case similar to this case, ““One cannot create for himself

a property by proclaiming its existence.”” Sims v. Fox,

505 F.2d 857, 862 (5th Cir. 1974) (en banc).

Nor is there sufficient liberty interest to require a

due process hearing. Plaintiff has bgen granted an

honorable discharge, the basis of Mich cannot be

disclosed except upon request by the plaintiff, if he

takes certain steps to ensure such non-disclosure. AR

635-5. In Sims, supra, an Air Force procedure similar to

the Army procedure was dispositive of the issue

whether plaintiff had a sufficient liberty interest in

continued employment. 505 F.2d at 862-64. “The mere

presence of derogatory information in confidential files

is not an infringement of ‘liberty.’ ” 505 F.2d at 863.

12a

Moreover, plainuff’s discharge is described by AR 635-5

at “Involuntary Discharge — Failure of selection for

permanent promotion — commissioned officers.”’ This is

no more “stigmatizing” — if it is stigmatizing at all —

than nonretention for employment, which the Supreme

Court in Roth found to be non-stigmatizing. 408 U.S.

at 574 n. 13. No proof has been offered by plaintiff to

support his alleged “loss of reputation,” so this court

need not decide whether loss of reputation, standing

alone, would require application of the due process

clause to plaintiff's discharge.

Finally, Army regulations do not require the ABCMR

to hold a hearing on all applications for relief. Whether

a hearing will be held is in the discretion of the

ABCMR. 32 C.F.R. §$581.3(c)(5) (1975). Since the

regulations do not provide for a hearing, plaintiff is not

entitled to one, unless the denial of a hearing is

arbitrary or contrary to law. Amato v. Chaffe, 337 F.

Supp. 1214, 1219 (D. D.C. 1972). This court has

already determined that the final decision of the

ABCMR was not arbitrary or capricious, and therefore

the denial of a hearing was not arbitrary or contrary to

law.

This court therefore holds that plaintiff had no right

to a hearing before either the Selection Boards or the

ABCMR.°®

In light of the foregoing, and without a hearing

pursuant to Local Rule 1-9(e), it is this 12th day of

November, 1975

> Plaintiff's argument that he was denied due process of law

by the failure of the Army to grant him an appeal is patently

frivolous, both on the facts and the law. See Griffin v. Illinois,

351 U.S. 12, 18 (1956).

l3a

ORDERED, that Defendant’s Motion to Dismiss, or

in the Alternative for Summary Judgment be and the

same hereby is granted, and

FURTHER ORDERED, that plaintiff’s Cross-Motion

for Summary Judgment be and the same hereby is

denied.

/s/

Chief Judge

Counsel:

Joan Goldberg, Esq.

370 Lexington Avenue

New York, New York 10017

Counsel for Plaintiff

Marshall S. Sinick, Esq.

1522 K Street, N.W.

Washington, D.C. 20005

Counsel for Plaintiff

Michael A. Katz, Esq.

Assistant United States Attorney

Washington, D.C. 20001

Counsel for Defendant

l4a

APPENDIX B

_ Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may he

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1126

MaJor ADOLPH H. KNEHANS, JR., APPELLANT

Vv.

CLIFFORD L. ALEXANDER, Secretary of the Army

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil 1978-73)

Argued February 28, 1977

Decided October 3, 1977

Joan Goldberg, of the bar of the Court of Appeals of

New York, pro hac vice, by special leave of court with

whom David Rein was on the brief, for appellant.

Jordan A. Luke, Assistant United States Attorney, with

whom Earl J. Silbert, United States Attorney, John A.

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

2 l5a

Terry and John R. Dugan, Assistant United States At-

torneys, were on the brief, for appellee.

Before: TAMM, ROBINSON and Koss, Circuit Judges.

Opinion for the court filed by Circuit Judge TAMM.

Dissenting opinion filed by Circuit Judge ROBINSON.

TAMM, Circuit Judge: Our appellant, former Major

Knehans, was honorably discharged from the United

States Army pursuant to 10 U.S.C. § 3303 (1970)' for

having been twice passed over for promotion by a Statu-

tory Selection Board. In order to prevent his imminent

discharge, Knehans brought an action in the United

States District Court for the District of Columbia to

invalidate it on grounds of procedural noncompliance,

alleging that submission of his defectively constituted per-

sonnel file had rendered the review to which he was

statutorily entitled a nullity. After Knehans had ex-

hausted his available administrative remedies by unsuc-

? The pertinent provisions of this particular section read as

follows:

(a) In this subtitle, “deferred officer’’ means a pro-

motion-list officer considered for promotion to the grade

of captain, major, or lieutenant colonel under section 3299

of this title, but not recommended for promotion..

(d) A deferred officer who is not recommended by the

next selection board considering officers of his grade and

promotion list shall—

* * * *

(3) if he is not eligible for retirement under sec-

tion 3913 of this title or any other provision of law,

be honorably discharged on such date as may be re-

quested by him and approved under regulations to be

prescribed by the Secretary of the Army, but not

later than the first day of the seventh calendar month

after the Secretary approves the report of that Board

10 U.S.C. § 3303(a), (d) (3) (1970).

3 l6a

cessfully applying for relief from the Army Board for

Correction of Military Records (ABCMR), see generally

id. $1552, the district court granted the Army’s mo-

tion for summary judgment. Knehans v. Callaway, 403

F. Supp. 290 (D.D.C. 1975). This appeal promptly en-

sued, in which Knehans advances essentially two dis-

tinct arguments: (1) that by statute his discharge was

conditioned upon his promotion having been properly con-

sidered by two Statutory Selection Boards and that consid-

eration of his properly compiled file by an Army Standby

Advisory Board was insufficient compliance with that

condition; and (2) that he had a due process right

to a hearing because his discharge implicated his

constitutionally protected interests in “liberty” and “prop-

erty”. For the reasons which follow, we affirm.

We treat appellant’s last contention first since it is

the least compelling and may thus be disposed of ex-

peditiously. Knehans asserts that “{a]lthough this court

has advanced the view that a hearing is necessary where

an officer suffers a loss of liberty, and damage to reputa-

tion and loss of employment is defined as liberty, the

court below held otherwise.” Appellant’s Brief at 18.

The short answer to this is that whatever “liberty” in-

terest Knehans may have had in his reputation, see Paul

’. Davis, 424 U.S. 693 (1976), has not been impinged

by the mere fact of his honorable discharge and non-

retention in the Army,’ see Board of Regents v. Roth,

* Appellant characterizes the harm to his liberty as arising

from a finding, in effect, that he was not “good enough” to be

promoted. Appellant’s Reply Brief at 12. This alleged “find-

ing”, which for purposes of this appeal we will accept as true,

is hardly likely either to seriously harm this officer’s reputa-

tional standing in his community or to foreclose his future op-

portunities to secure suitable gainful employment. See gen-

erally Mazaleski v. Treusdell, No. 75-1817 (D.C. Cir. Apr. 26,

1977), slip op. at 16-24. In this respect, appellant’s reliance

4 l7a

408 U.S. 564, 572-75 (1972), especially since the reasons

for his nonpromotion were never publicly disseminated,

compare Appellant’s Reply Brief at 13 with Codd v.

Velger, 429 U.S. 624, 627-28 (1977) and Bishop v. Wood,

426 U.S. 341, 348-49 (1976), and, secondly, that he had

no constitutionally protected entitlement to continued ac-

tive duty as a commissioned officer in the Army since,

absent more, any objectifiable expectancy supporting such

an entitlement was sufficiently negated by the express

provisions of 10 U.S.C. § 3303 (1970).° See generally

Pauls v. Secretary of the Air Force, 457 F.2d 294, 297

(1st Cir. 1972). In sum, we find no reason whatsoever

to fault the district court’s analysis of appellant’s pro-

cedural due process claims based on asserted liberty and

property interests.

As to appellant’s other argument, it is undisputed that

both Selection Boards reviewed a personnel file on ap-

pellant which in certain respects was not strictly in accord

with Army directives. Knehans views this oversight as

automatically voiding his discharge and, at the same time,

as entitling him to retention in the service at least until

two new Selection Boards have been convened at one-

year intervals to consider his promotability on the basis

of a proper file. Fortunately, we are not required by

the circumstances presented here to accept this extreme

position, interfering as it would with personnel matters

better left in most cases to the discretion of the military,

compare Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953)

with Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir.

upon Rolles v. Civil Service Commission, 512 F.2d 1319 (D.C.

Cir. 1975), involving charges that amounted to accusations of

dishonesty, is clearly inapposite.

Nor does his longevity in the armed forces suffice by itself

to create such an interest. See, e.g., McNeill v. Butz, 480 F.2d

$14, 320-21 (4th Cir. 1973). See also Perry v. Sindermann,

480 U.S. 598, 601-02 (1972).

5 18a

1971), for he is entitled to no such relief either by

Statute or regulation.

Evincing some confusion on this point, appellant as-

serted in his brief that “{i]t is admitted herein that ap-

pellant has not been passed over by two statutory selec-

tion boards. .. ,” Appellant’s Brief at 10, which of course

is incorrect for he quite cértainly had been. It is true

that subsequent to these two nonpromotion decisions the

Army determined that one of several Officer Efficiency

Reports had been improperly included in the review file ‘

and that several letters of commendation which should

have been included therein had not been.’ Such a show-

ing of error, however, does not nullify the Selection

Boards’ proceedings nor requires that appellant once

again be considered by two separate ones, for nothing

conditions the validity of Selection Board proceedings

upon the review of a perfectly compiled personnel file.

Though Army regulations do specify what documents are

properly contained in an officer’s selection file, AR 624-

Selection board action is administratively final.

Reconsideration for promotion will be afforded only

in those cases where material error was present in

the records of an officer when reviewed by a selec-

tion board. This determination will be made by

Headquarters, Department of the Army.

must take “the bitter with the sweet”, and the fact that

the Secretary of the Army subsequently directed a Stand-

by Advisory Board* to evaluate the corrected file vis-a-

* See 403 F. Supp. at 295.

See id. & n.4.

“The Army Standby Advisory Board is a creature of regu-

the Selection Boards. See generally Ford, Officer Selection

Boards and Due Process of Law, 70 Miu. L. REV. 137, 151-

52 (1975).

6 19a

vis a pool of others was simply an act of administrative

grace about which appellant can scarcely complain.

By the same token, appellant’s challenge to the

ABCMR’s proceedings’ is, at bottom, irreconcilable with

a long line of precedent in this circuit and others that,

subject to certain exceptions inapplicable here, an ag-

grieved military officer must first exhaust his administra-

tive remedies before his particular service’s Board for

Correction of Military Records prior to litigating his

claims in a federal court. See, e.g., Horn v. Schlesinger,

514 F.2d 549, 551 (8th Cir. 1975) ; Sohm v. Fowler, 365

F.2d 915 (D.C. Cir. 1966); McCurdy v. Zuckert, 359

F.2d 491 (5th Cir.), cert. denied, 385 U.S. 903 (1966).

Compare Ogden v. Zuckert, 298 F.2d 312 (D.C. Cir.

1961). This rule must logically rest on the proposition

that such a Correction Board, charged with a responsi-

bility to “correct an error or remove an injustice,” 10

U.S.C. §1552(a) (1970), has by implication sufficient

authority to provide the relief appellant now seeks: full

reinstatement and backpay. See, e.g., Hodges v. Calla-

way, 499 F.2d 417, 422 (5th Cir. 1974) ; Sohm, supra,

365 F.2d at 917; Ogden, supra, 298 F.2d at 317-18 (Bur-

ger, J., dissenting) ; Caddington v. United States, 178

F. Supp. 604 (Ct. Cl. 1959). See also 10 U.S.C. § 1552

(d) (1970).

In this respect, the Army’s Correction Board is, as

the district court properly characterized it, “a vital part

of the promotion apparatus established by Congress,”

403 F. Supp. at 294; see Horn, supra, 514 F.2d at 552;

Hodges, supra, 499 F.2d at 422, and appellant must

T Appellant asserts further that the ABCMR gave no reason

for its decision so that a reviewing court cannot know whether

the basis for its decision not to recommend reinstatement was

a proper one. Again, however, appellant’s assertion departs

rather substantially from reality. See J.A. 59, quoted in 403

F. Supp. at 292.

7 20a

show that its decision not to reinstate him on ¢he basis

of a corrected file was arbitrary, capricious or other-

wise unlawful. See, e.g., Horn, supra, 514 F.2d at 553

& n.14; Yee v. United States, 512 F.2d 1383, 1386 (Ct.

Cl. 1975). The district court concluded that he had

failed to sustain his burden of proof in this regard, and

we fully agree. See Mindes v. Seaman, 501 F.2d 175,

176 (5th Cir. 1974).

Not finding any of appellant’s other arguments merit-

orious, the summary judgment awarded by Judge Jones

is hereby

Affirmed.

l 2la

ROBINSON, Circuit Judge, dissenting: I cannot accept

the court’s conclusions that the selection boards’ considera-

tion of appellant’s improperly-constituted personnel file

was not harmful error and that the failure of the Army

Board for Correction of Military Records to reinstate ap-

pellant was not arbitrary. For reasons to be expressed,

I would reverse the District Court’s judgment and remand

the case for a determination of whether the evidence es-

tablishes a substantial probability of prejudice emanating

from the selection boards’ proceedings.’ That disposition

of the case would incidentally eliminate, at least tempo-

rarily, the necessity of passing on appellant’s due process

claims—a bonus we should be eager to realize.* Because,

however, my colleagues have treated the due process con-

tentions unsatisfactorily, I feel obliged to comment upon

them briefly.*

As stated in the majority opinion, appellant was honor-

ably discharged from the United States Army pursuant

to Section 3303,‘ which specifies that course for a com-

missioned officer who has not been recommended for pro-

motion by either of two consecutive selection boards and

who is not eligible for retirement. Although Section 3303

expressly conditions discharge on consideration for pro-

motion by two selection boards functioning in direct suc-

cession, the statute applicable to Army selection board

proceedings does not elaborate the elements of a candi-

date’s record that must or must not be evaluated.’ By

1 Part II infra.

2 Compare, e.g., Langston V. Johnson, 156 U.S.App.D.C. 5, 7,

478 F.2d 915, 917 (1973), and cases cited at notes 7-8 thereof.

* Part III infra.

*10 U.S.C. § 3303 (1970).

‘> The statute simply authorizes the Secretary of the Army

to furnish to the board the names of officers to be considered

for promotion. 10 U.S.C. § 3300(a) (1), (b) (1), (ce) (1970).

2 22a

implementing regulations, however, the Army has ruled

certain materials admissible* and certain others inad-

missible in a selection board proceeding.’

Appellee, the Secretary of the Army, admits, and the

District Court assumed in reaching its decision,* that con-

* Army Reg. 624-100 {16(d), Joint Appendix (J.App.)

82, provides for inclusion of letters of recommendation in a

candidate’s file:

Communications for selection boards. No officer is

authorized to appear in person before a selection board

on his own behalf or in the interest of another officer

who is in a zone of consideration.

(1) An officer within a zone of consideration may

write a letter to the selection board inviting at-

tention to any matter of record in the Department

of the Army concerning himself that he feels im-

portant in the consideration of his record. How-

ever, a commissioned officer being considered for

Regular Army promotion will forward such letter

through the appropriate Career Branch to the

selection board (10 U.S.C. 3297(e)).

(2) Letters of commendation or appreciation and

recommendations for promotion may be forwarded

direct to the selection board.

(3) Communications which contain criticism or reflect

upon the character, conduct, or motives of any

officer will not be given to a selection board.

(4) Request for corrective special review of specific

efficiency reports will not be included in letters

directed to the selection board but may be for-

warded to The Adjutant General, ATTN: AGPB-

FP Department of the Army, Washington, D.C.

20815. ...

’ See note 6 supra and letter from Major J. Stone, Fvalua-

tion Report Branch, to Major Adolph H. Knehans, Jr. (Sept.

17, 1973), J.App. 15 (advising that an efficiency report had

been voided and removed from appellant’s records because

he had served under the supervision of the rating officer for

less than ninety days).

* Knehans V. Callaway, 403 F.Supp. 290, 293 (D.D.C. 1975).

3 23a

trary to the regulations several letters commending Appel-

lant were omitted from the record reviewed by the selec-

tion boards, and that an officer efficiency report inadmis-

sible under the regulations was considered by the boards.

Because under well-settled principles a governmental

agency is legally bound to adhere to its own regulations,”

the omission of the letters of commendation and the in-

clusion of the efficiency report rendered appellant’s file

clearly defective.

Although my colleagues apparently concede this point,

they opine that the validity of selection board proceedings

does not depend upon review of a perfectly constituted

personnel file. With this observation I fully agree. But

the question here is not whether any imperfection in a

candidate’s personnel file examined by a selection board

fatally taints that proceeding. Rather, the issue is whether

the mistake admittedly accompanying consideration of ap-

pellant’s file was sufficiently severe to merit remedial

measures. If the Army’s blunder was in fact injurious to

appellant, evaluation by the Army of the corrected file

was mandatory, not simply an “act of administrative

grace” as the court asserts. As will be developed, I be-

lieve the evidence suggests a grave likelihood of preju-

dicial error.”

Admittedly, the District Court’s function was not to

review directly the determinations of the two selection

boards that evaluated appellant’s record, but to review

* Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d

1012 (1959); Service Vv. Dulles, 354 U.S. 363, 77 S.Ct. 1152,

1 L.Ed.2d 14038 (1957); United States ex rel. Accardi V.

Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954);

Hammond V. Lenfest, 397 F.2d 705 (2d Cir. 1968); see Dun-

mar V. Ailes, 121 U.S.App.D.C. 45, 348 F.2d 51 (1965).

'° Part II infra.

‘ 24.

the decision of the Army Board for Correction of Mili-

tary Records (ABCMR) refusing to reinstate him. The

ABMCR concluded that “insufficient evidence ha[d] been

presented to indicate probable material error or injus-

tice.” *' The District Court held, and my colleagues now

affirm without discussion, that the ABCMR’s decision was

not arbitrary.

I believe, however, that the District Court was overly

deferential in its review of the ABCMR’s decision. The

court observed:

It is not so obvious that in the instant case the inclu-

sion of the adverse OER and the absence of several

letters of recommendation would nece: sarily lead to

a non-promotion decision by a Selection Board... .

[I]n the absence of evidence that inclusion of the

negative OER necessarily caused the non-promotion

decisions, this court cannot say that the ABCMR’s

‘* Quoted by the District Court, Knehans v at

note 8, 403 F.Supp. at 292. om ¥. Chay, ones

Appellant argues that the ABCMR’s holding is inconsistent

with the Army’s prior finding that inclusion a the defective

efficiency report in his file was “material error” for purposes

of invoking review by the Standby Advisory Board under

Army Reg. 624-100 § 18(b), J.App. 83. The Army’s position,

however, is not necessarily self-contradictory. The efficiency

report was voided and removed from appellant’s files without

regard to its contents, see note 7 supra. Under Army policy,

‘material error’ for purposes of Advisory Board review

exists whenever a “major change is made to an efficiency

report that was seen by a selection board.” Letter from Lieu-

tenant Colonel James C. McCoy, Chief, Promotion Branch. to

Joel W. Collins, Jr. (counsel for appellant) ( Aug. 2, 1973)

J.App. 16. Advisory Board review, therefore, may be necessi-

tated by elimination of an efficiency report from an officer’s

file, after the report has been viewed by a selection board.

even though the presence of the report in the file would not

have jeopardized the officer’s chances for promotion.

5 25a

refusal to reverse those decisions was without a ra-

tional basis."

Certainly, if a defect in a candidate’s file “necessarily”

would preclude his promotion, the defect would be harm-

ful, and the ABCMR’s failure to remedy it clearly would

be reversible.“ But even short of this, the ABCMR just

as clearly would violate its duty to remove injustices and

correct errors in servicemen’s records if it refused to

rectify a mistake that likely prevented promotion. Thus,

the District Court should have undertaken to ascertain

whether a substantial threat of prejudice was established

by the evidence, and if it was the ABCMR’s refusal to

reinstate should have been reversed as arbitrary.

In fact, the evidence raises serious doubts regarding

the soundness of the ABCMR’s determination. We are

12 Knehans V. Callaway, supra note 8, 403 F.Supp. at 296

(emphasis in original).

13 See Yee v. United States, 512 F.2d 1383 (Ct. Cl. 1975).

Because the error in Yee was egregious, that decision would

not require reversal on the facts of the present case, but it

surely would not preclude it.

14 See 10 U.S.C. § 1552 (1970); Yee v. United States, supra

note 18, 512 F.2d at 1387. In Reale, 208 Ct. Cl. 1010, 1011

(1976), the court observed:

The Board is to recommend action to correct “error”

or “injustice,” 10 U.S.C. § 1552. The two things are not

the same. “Error” means legal or factual error. Normally,

it is such that a court of law could correct it whether

the soldier or sailor had first applied to a Correction

Board, or not. If the Board when asked, fails to correct

such an “error”, courts will correct it on judicial review.

“Injustice,” when not also “error”, is treatment by the

military authorities, that shocks the sense of justice, but

is not technically illegal. Yee v. United States, 206 Ct.

Cl. 388, 512 F.2d 1383 (1975).

The Army’s transgression of its own regulations in this case,

of course, constitutes legal error. See note 9 supra and ac-

companying text.

6 26a

told that the defective efficiency report indicated a down-

ward trend in appellant’s performance,"* and that could

have been critically important to the decision of the selec-

tion boards, especially in view of the District Court’s

finding that appellant’s record was otherwise “very

good.” ** Moreover, the Chief of the Engineering Branch

of the Corps of Engineers informed appellant by letter

after the action of the first selection board that the effi-

ciency report was a significant item ir his file.” Although

the letter indicated that the Engineering Branch did not

participate in the decisionmaking process, its opinion bears

on the materiality of the report; the Engineering Branch,

in which appellant sought advancement, certainly was fa-

miliar with the considerations relevant to caliber of per-

formance within that branch. In support of the decision

of ABCMR, the District Court noted a similar negative

report that appellant had received earlier in his career

regarding his performance while stationed in Okinawa."

Yet, such a report would not diminish the impact of the

more recent but defective efficiency report since the mere

existence of the second adverse report suggested con-

tinued inefficiency, which qualitatively altered the char-

acter of appellant s records.’”

‘* Brief for Appellant at 6-7.

'* Knehans V. Callaway, supra note 8, 403 F.Supp. at 296.

T Id. at 295-296.

8 Id. at 295. ‘

** See Department of the Army, Promotion of Officers on

Active Duty, app. §§ 3, 6, J.App. 88-89. Section 3 provides:

The basic and most important single document in the

officer’s record is the efficiency report. The Manner of

Performance section in each report must be closely ex-

amined. It is here that a pattern of strengths and weak-

nesses over a period of time will appear. . . . With each

passing year the OEI, last computed in 1961, has less

and less importance... .

[Continued]

7 27a

The District Court also concluded that the letters of

commendation erroneously omitted from appellant’s file

were no more laudatory than the valid efficiency reports

present in the file. Because the letters were therefore

“cumulative in effect,” the court held that the ABCMR

“could rationally have concluded that their omission did

not result in [appellant’s] nonpromotion.” * Even if the

omission of the letters of commendation from appellant’s

file would not inexorably have precluded a favorable deci-

sion by the selection boards, it may have contributed to

the Boards’ nonpromotion decision significantly since the

omitted letters manifested more universal approval of

appellant’s performance. Thus, in light of the doubts

raised by the evidence, I would remand this case to the

District Court for reevaluation of the question of preju-

dice by the less restrictive standard of substantial prob-

ability as opposed to necessary effect.”

® [Continued]

See also Letter from Colonel Joseph A. Jansen, Chief, Engi-

neer Branch, to Major Adolph H. Knehans, Jr. (June 15,

1972), J.App. 64.

20 Knehans V. Callaway, supra note 8, 403 F.Supp. at 295

n.4 (emphasis supplied).

*1 In the event that prejudice is found, the further question

would be whether the reconsideration for promotion afforded

by the standby advisory board remedied the error. The stand-

by advisory board is not a statutory body, and the Secretary

has expressly disclaimed reliance upon the standby advisory

board as a qualified substitute for the statutory selection

boards, or upon action of the standby advisory board as a

legally acceptable compliance with the statutory requirements

for discharge. Brief for Appellee at 19-20. The Secretary

does contend, however, that “it is fairer to afford promotion

reconsideration by having a standby advisory board consider

the officer under the same criteria [and in comparison to a

sample of the same candidates] which the statutory Selection

Board previously considered.” Jd. at 11 n.11. Otherwise, the

officer would have to compete with a different, and perhaps

better qualified, group of officers. Jd. If standby advisory board

8 28a

III

On my view of this case, I would not reach appellant’s

Fifth Amendment due process contentions. Because, how-

ever, my colleagues have addressed the due process issues,

and from my standpoint have resolved them unsatisfac-

torily, I am constrained to add a few remarks of my own.

First, unlike the majority, I am not at all convinced

that appellant’s claim of loss of liberty without due proc-

ess can be “disposed of expeditiously.” Appellant’s dis-

charge has not seriously damaged his “standing and asso-

ciations in his community,” @ and he would not be entitled

to due process protection on that basis. But in Roth *

the Supreme Court recognized a second prong to the

liberty-interest test in cases involving termination of em-

ployment. The Court held that governmental action that

forecloses a range of employment opportunities deprives

the affected person of a liberty interest:

action were designed solely to afford an officer the possibility

of immediate relief from prejudicial error such action could

indeed only benefit the officer; but an adverse ruling by an

advisory board should not be used to cut off an officer’s statu-

tory right to proper consideration by two statutory boards.

If an officer seeks reconsideration by .wo statutory boards

after having been wrongfully denied promotion by two selec-

tion boards and denied relief by a standby advisory board, the

Army can hardly refuse to afford the officer such reconsidera-

tion on the ground that it would be unfair to the officer to do

so. if the officer wishes to take his chances in a pool of po-

tentially better candidates, that is his indubitable statutory

right. If the subsequent pool of candidates for promotion is

less qualified than the affected officer, the Army cannot deny

the officer the advantage of consideration in that pool, which

was necessitated by the Army’s own serious error; nor would

the Army have an interest in doing so, because thereby it

would lose an admittedly superior officer.

72 Board of Regents Vv. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701,

2707, 33 L.Ed.2d 548, 558 (1972).

*s Board of Regents Vv. Roth, supra note 22.

9 29a

[T]he State . . . did not invoke any regulations to

bar the respondent [a?. assistant college professor |

from all other public employment in state universi-

ties. Had it done so, this .. . would be a different

case. For “[t]o be deprived net only of present gov-

ernment employment but of fuvire opportunity for

it certainly is no small injury. ..:?”** [A] state, in

regulating eligibility for a type of professional em-

ployment, cannot foreclose a range of 9pportunities

“in a manner .. . that contravene|s] Due Process,” *

. and specifically, in a manner that denies the

right to a full prior hearing.”

In the present case, the effect of appellant’s dischaige

was not only to terminate his active duty in the Regular

Army but also to prevent his reentering on active duty

as a reserve officer.” Appellant argues with some force

that civilian work in the general area of his expertise and

experience is qualitatively different from employment as

an officer in the Army.* Thus, appellant raises a sub-

stantial claim that his discharge pursuant to Section 3303

effected a deprivation of his liberty to pursue a range of

** Here citing Joint Anti-Fascist Refugee Comm. Vv. McGrath,

341 U.S. 123, 185, 71 S.Ct. 624, 655, 95 L.Ed. 817, 861 (1951)

(Jackson, J. concurring).

**> Here citing Schware V. Board of Bar Examiners, 353 U.S.

232, 238, 77 S.Ct. 752, 756, 1 I.Ed.2d 796, 801 (1957) (peti-

tioner was not permitted to take the New Mexico bar exami-

nation and was thereby prevented from practicing law in New

Mexico).

2° 408 U.S. at 573-574, 92 S.Ct. at 2707, 33 L.Ed.2d at 559,

last citing Willner v. Committee on Character, 373 U.S. 96,

103, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224, 229 (1963) (peti-

tioner passed the New York bar examination but was not ad-

mitted to the New York Bar).

** Letter from Colonel Robert J. Kirk, Deputy Director,

Personnel Actions and Records, to Major Adolph H. Knehans,

Jr. (Sept. 17, 1973), J.App. 71.

** Reply Brief for Appellant at 14.

10 30a

professional opportunities, thereby entitling him to due

process protection.

Second, although I agree with my colleagues that appel-

lant has not established the existence of the property in-

terest requisite, I believe their formualtion of this issue

is inadequate. Contrary to their assertion, an objectifiable

expectancy supporting an entitlement to continued duty

as a commissioned Army officer was not necessarily ne-

gated by Section 3303. That provision authorizes dis-

charge only if an officer is not recommended for promo-

tion by two successive selection boards. Hence, an officer

cannot be discharged under Section 3303 unless he is

twice determined to be nonpromotable. This, without more,

does not negate a legitimate claim of entitlement.

Section 3303, however, does not independently establish

entitlement to continued employment because nothing

therein suggests that the determinations of the selection

boards are to be more than discretionary. The Army has

promulgated criteria and guidelines to govern delibera-

tions of selection boards,” but they are not inclusive. A

selection board need not base its decision on any single

factor and no specific qualifications are essential to pro-

motion.” Thus, a candidate apparently cannot be assured

** Department of the Army, Promotion of Officers on Active

Duty (especially Appendix, “Guidance for Promotion Selec-

tion Boards”), J.App. 78-90.

* Letter, supra note 11, J.App. 16. Although the existence

of discretionary authority to discharge or to deny promotion

does not per se raise constitutional problems, the improper

exercise of such discretion may well violate equal protection

guarantees found in the Fifth and Fourteenth Amendments.

See Schware v. Board of Bar Examiners, supra note 25, 353

U.S. at 239, 246, 77 S.Ct. at 756, 760, 1 L.Ed.2d at 801-802,

805; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed.

220 (1886). See generally Bolling v. Sharpe, 347 U.S. 4197,

74 S.Ct. 693, 98 L.Ed. 884 (1954).

ll 3la

of a recommendation for promotion by satisfying any

particular group of criteria.*' Because a selection board’s

promotion decision involves so broad a range and so high

a degree of discretion, an officer has no protected property

interest in his Army officership.

These, then, are my thoughts on the constitutional as-

pects of this case. To repeat, I express them only to repel

any notion that I concur in those advanced by my col-

leagues. As previously indicated, had my view of the case

prevailed, we would simply reverse the District Court’s

judgment and remand for reconsideration on the issue

of prejudicial error without reaching the constitutional

questions at this time.

*t Compare Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074,

48 L.Ed.2d 684 (1976) (city ordinance provided that a

permanent city employee might be discharged if his work

is substandard, or if he is negligent, inefficient or unfit to

perform his duties, but the Court refused to read the ordinance

as prohibiting discharge for any other reason and as thus

conferring tenure on permanent employees), with Goldberg

v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)

(eligibility criteria for welfare benefits gave rise to entitle-

ment to benefits for those who satisfied those criteria).

32a

ile 3 1977

APPENDIX c_ [Filed Oct 3.1977]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1126 September Term, 1977

Major Adolph H. Knehans, Jr., Civil 1978-73

Appellant :

Vv.

Clifford L. Alexander, Secretary

of the Army

Appeal from the United States District Court for the

District of Columbia. Before: TAM, ROBINSON and

ROBB, Circuit Judges

JUDGMENT

This cause came on to be heard on the record on

appeal from the United States District Court for the

District of Columbia, and was argued by counsel.

On consideration thereof It is ordered and adjudged

by this Court that the judgment------------- ---

of the District Court appealed from in this cause is

hereby affirmed, in accordance with the opinion of this

Court filed herein this date.

Per Curiam

For the Court

/s/ George A. Fisher

George A. Fisher

Clerk

33a

Date: October 3, 1977

Opinion for the Court filed by Circuit Judge Tamm

Dissenting Opinion filed by Circuit Judge Robinson

34a

APPENDIX D

{Filed Nov 3 1977]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1126 September Term, 1977

Major Adolph H. Knehans, Jr., Civil Action #1978-73

Appellant

Vv.

Clifford L. Alexander, Secretary

of the Army

BEFORE: Tamm, Robinson and Robb, Circuit Judges

ORDER

Upon consideration of the petition for rehearing

filed by appellant herein, it is

ORDERED by the Court that appellant’s aforesaid

petition is denied.

Per Curiam

For the Court:

/s/ George A. Fisher

GEORGE A. FISHER

Clerk

Circuit Judge Robinson would grant appellant’s petition

for rehearing.

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