Petition — Doyle v. United States

Supreme Court brief1980

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In THE

Supreme Court of the United States

OcroBEeR TERM, 1979

No. _%9=] 315

MAJOR LEO D. DOYLE, er AL.,

Petitioners.

THE UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

Rospert Mortey Wricut,

WHITEFORD, TAYLOR, PRESTON,

TRIMBLE & JOHNSTON,

2000 First Maryland Building,

25 South Charles Street,

Baltimore, Maryland 21201,

(301) 752-0987,

KertTH A. ROSENBERG,

NewraTH, MEYER & FAtter, P.C.,

4400 Jenifer Street, N.W.,

Suite 380,

Washington, D.C., 20015,

(202) 362-1100,

Counsel for Petitioners.

February 25, 1980

TABLE OF CONTENTS

NIE ed castes ctivscteoiions

sk ls acccuseeecons

I nnn sc coccenensecnceee

Statutory Provisions AND ReGcu.ations INVOLVED

STATEMENT OF THEE CAGE .......0.0.0cccccccccssssccssscscssceeees

1. The Decision Of The United States

Court Of Claims Controls Pending

‘Cases Involving The Denial Of The

Same Statutory Rights Being Asserted

By Others Similarly Situated ...............

2. The Court’s Decision Is In Conflict With

The Concurrent Decision In Dilley, et

al. v. Alexander, 603 F.2d 914 (D.C.

1979) And Is In Conflict With The

Principals Of Matthews v. Eldridge, 424

U.S. 319 (1976) And Weinberger v.

Salfi, 422 U.S.C. 749 (1975) oe.

3. The Doyle Decision Frustrates Congress’

Purpose Which Is To-Prevent Discrimi-

nation In The Promotion Process Of The

I NOI 6 csscssscncceccesscrccsvecconsooes

4. The Court Of Claims Decision, Through

A Mischaracterization Of The Issue

And Incomplete And Misleading Recita-

tion Of Facts, Does Not Disclose To

Future Litigants That It Creates A New

Standard Which Must Be Met By Those

Seeking Review Of Administrative Ac-

tion, Which Standard Is Contrary To

I MN cesstuesckecscciieesntobcdidesaceietoerece

5. The Decision Will Lead To Lengthy

Administrative Proceedings And May

Cause Many Administrative Proceed-

ings To Be Deemed Inadequate Under

The Doctrine Of Exhaustion Of Admi-

nistrative Remedies ..........ccccceeeeerereeees

6. The Decision Encourages Administra-

tive Agencies To Issue Vague And

Imprecise Decisions And Allows Them

To Benefit From A Knowing Violation

OE RR os ak dasiieaccdpdinniamcasaaon saasioehin

7. The Decision Allows Administrative

Agencies To Violate Their Own Regula-

tions By Relying Upon A Past Pattern

Ce IR iain cssicksdnetnsrsatiastinernersnorennies

Son Et tLe aeRO ene REDE EL eae RPRan Renn ac eran

WIE oie iciinnidadincnsnianseaandtnvisenenedteestedetincescaligtins

Department of Defense Instruction 1205.4

Army Regulation 624-100, Section I, {| 1-2(a)-

ie SE BB rcrccsacetcsiertestisecctcrrees

Army Regulation 635-100, Section XVII

Change 17,7 November 1973, { 3-64(a)-(d)

Change 20, 14 January 1975, {| 3.65(a)-(d)

Army Board For Correction of Military Re-

cords Proceedings, 10 December, 1975

Secretary of the Army’s Memorandum for

Chief of Staff, 27 January, 1976 ..........

Army Board For Correction Of Military

Records Proceedings, 9 February, 1977

Opinion of the United States Court of Claims

Wie BE BIR vi citsts ears esictaecciesinssonctinnsissane

Order of United States Court of Claims

September 28, 1979 ...........resseccccssecsseees

Order of United States Court of Claims

November 30, 1979

PAGE

40a

42a

46a

88a

iil

PAGE

TABLE OF CITATIONS

Cases

Abruzzo v. United States, 513 F.2d 608 (Ct. Cl.

RIPE adshececeeeedasickagiioccseidlascenenacunagtimataniastonss 25

Brenner v. United States, 202 Ct. Cl. 678 (1972) 25

Curtis Publishing Company v. Butts, 388 U.S.

BO FOR: cesicaseucscnepaeaetentiesacisacabianaiveulgunnntatie 29

Dilley v. Alexander, 603 F.2d 914 (D.C. 1979)

18, 21, 22, 24; 25, 28

Harmon v. Brucker, 355 U.S. 579 (1958) ........... 25, 31

Henderson v. United States, 175 Ct. Cl. 690

RI ares cascada clan nd snneichorssgniconteXhuannkan aaabansiivetauanoneio 25

Isbrandtson v. United States, 211 F.2d 51 (D.C.

NE I ic a calla ahnmuaneinins 30

Matthews v. Eldridge, 424 U.S. 319 (1976) ........ 22, 23, 24

Orloff v. Willoughby, 345 U.S. 83 (1953) ............ 25

Sampson v. Murray, 415 U.S. 937 (1974) ........... 31

Service v. Dulles, 354 U.S. 363 (1957) ................ 25, 31

Shearson Hayden Stone, Inc. v. Leach, 583 F.2d

Fe Be iicbnncaeabhatiensdereincneesetieniienas 29

Stewart v. United States, Ct. Cl. No. 198-

7 Decided December 12, 1979 ...............sccccecceeeeeees 25

Sunshine Publishing Company v. Summerfield,

184 F. Supp. 767 (D.D.C. 1960) ..........cceeeees 30

United States v. Newman, 478 F.2d 829 (8th Cir.

IBC SIRS Reve dN ee et EU PORE ae Ree OP 29

United States v. Shaughnessy, 347 U.S. 260 |

RR RORRE ORGIES IRS aC SIR Pile ornare Onna eee 32

Vitarelli v. Seaton, 359 U.S. 535 (1959) ............. 25, 31

Weinberger v. Salfi, 422 U.S. 749 (1975) ........... 22, 23, 24

PAGE

Statutes

1O U.S.C. § BOC) .ncccrncescecncncsssssecssessenssovovenrsensesensys 6, &, 26

10: UGC. OBFT | ccnivevecccessoneeeconsisdstennsnncsntaneneas sented 8, 11, 25, 26

1O UGC. S$ BORD cvsccciccccorcsercorcsssnsnssorscsstecnsnees 8, 10,11, 25, 26

B UG... 0 FOG nvvivcncscctisensacktticeenteesnenmeerenen 29

Regulations

Army Regulation 624-100 ...... 6, 8, 10, 13, 20, 25, 26, 32-34

Army Regulation 635-100 ..............::008 8, 13, 18, 20, 33, 34

Army Regulation 15-185 ..........c::cccesseeeeteeeeeneeeeens 8, 24, 27

IN THE

Supreme Court of the United States

OcTOBER TERM, 1979

No.

MAJOR LEO D. DOYLE, ET AL.,

Petitioners,

Vv.

THE UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

Petitioners, Major Leo D. Doyle, Major Louis Gaddini,

Major John D. Gardner, Major Bobby Eugene Hill, Major

Eldon Craig Loe, Major Robert W. Mandelstam, Major Lois

Martin, Major William J. Riddel, Major James H. Robar,

Major L. D. Truitt, Major Charles M. Tryon, Jr. and Major

Kenneth P. Winchester, respectfully pray that a writ of

certiorari issue to review the judgment and opinion of the

United States Court of Claims, sitting en banc, entered in

this proceeding on May 16, 1979.*

OPINION BELOW

The opinion of the United States Court of Claims is

reported in 220 Ct. Cl. (1979) and 599 F.2d 984 (Ct. Cl.

1979). ;

* No Petition is filed in the related case of Adams v. United

States, which was consolidated for hearing with Doyle. (Ct. Cl.

No. 275-77)

JURISDICTION

The judgment of the United States Court of Claims was

entered on May 16, 1979. A timely motion for rehearing

and clarification was granted in part on September 28,

1979. The opinion was again modified upon timely motion

on November 30, 1979. See, 609 F.2d 990. Petitioners out

of caution requested this Court to extend the time for

filing a petition for writ of certiorari to and including

February 25, 1980, which request was granted by order of

this Court dated December 21, 1979. This Court’s jurisdic-

tion is invoked under 28 U.S.C. § 1255(1).

QUESTIONS PRESENTED

I. Whether Petitioners, Reserve Army officers, can be

released from active commissioned service by reason of not

being selected for promotion by two Promotion Selection

Boards pursuant to Army Regulation 635-100 where:

(a) the original Promotion Seiection Boards which

considered these officers for promotion did not have

Reserve officer membership in direct violation of 10 U.S.C.

§ 266, 10 U.S.C..§277, 10 U.S.C. §3442 and Army

Regulation 624-100, Section III, 16(b) (5); and

(b) following Petitioners administrative challenge to the

validity of the original Selection Boards and their result-

ing release, the Secretary of the Army established ex parte

“evidentiary proceedings” in the form of “reconstituted”

selection boards to reconsider Petitioners under the origi-

nal promotion criteria with Reserve membership to deter-

mine whether Petitioners had in fact been “harmed” by

the absence of Reserve officers on the original Selection

Boards; and

fact conducted under the original promotion criteria

thereby diminishing Petitioners’ opportunity for selection

in violation of 10 U.S.C. § 277, 10 U.S.C. § 3442 and Army

Regulation 624-100, Section IV, { 23.

II. Whether the Court of Claims can sua sponte forfeit

Petitioners’ right to judicial review of the manner in which

ex parte administrative proceedings were conducted by

reason of Petitioners’ failure to complain to the Secretary

prior to the commencement of those proceedings where:

(a) Petitioners had no knowledge of the manner in

which they were being conducted until they were substan-

tially complete; and

(b) Petitioners were unaware prior to the conclusion of

those proceedings that the results would materially effect

their substantial statutory and regulatory rights; and

had exhausted all administrative remedies and that

Petitioners’ challenge to the validity of the defective

“evidentiary proceedings” was properly before the Court

for resolution.

III]. Whether, under the circumstances, the Court of

Claims decision amounts to a refusal to enforce the

mandates of 10 U.S.C. § 266, §277, and §3442 that

Reserve officers in the military services of the United

States will not be discriminated against in the selection of

officers for promotion and that they are entitled to be

considered for promotion on a fair and equitable basis.

IV. Whether Petitioners have been properly released

from active duty where:

(a) both the original Selection Boards and the “eviden-

tiary proceedings” granted 15% of the available promotion

vacancies to junior officers in violation of AR 624-100,

Section IV, § 23; and

, 4

(b) where virtually all of those promotions to junior

officers were granted to Regular officers; and

as implied changes to the regulations which were never

incorporated into the regulations by later changes.

V. Whether Petitioners have been properly released

from active commissioned service where:

(a) the original Selection Boards, and subsequent

“evidentiary proceedings” did not make factual findings

that were required by Army Regulations 624-100 and

635-100 to authorize a release from active commissioned

service; and

(b) the Secretary, after the original Selection Boards

were completed and upon complaint by affected officers,

retroactively changed the regulation to eliminate the

necessity of those factual findings to support a release

from active commissioned service so as to validate Peti-

tioners’ release from active service.

STATUTES AND REGULATIONS

INVOLVED

United States Code, Title 10:

§ 266(a). Boards For Appointment, Promotion, And Cer-

tain Other Purposes; Composition

Each Board convened for the appointment, promotion,

demotion, involuntary release from active duty, discharge,

or retirement of Reserves shall include an appropriate

number of Reserves, as prescribed by the Secretary

concerned under standards and policies prescribed by the

Secretary of Defense.

Aug. 10, 1956, c1041, 70A Stat. 11.

§ 277. Regular And Reserve Components: Discrimina-

tion Prohibited

Laws applying to both Regulars and Reserves shall be

administered without discrimination—

(1) among Regulars;

(2) among Reserves; and

(3) between Regulars and Reserves.

Aug. 10, 1956, c1041, 70A Stat. 14.

§ 3442(c) Commissioned Officers; regular and reserve

components; Appointment In Higher Grade.

Subject to subsections (a) and (b), a Regular commis-

sioned officer, or a Reserve commissioned officer who is

serving on active duty, may be appointed in a temporary

grade that is equal to or higher than his Regular or

Reserve grade, without vacating any other grade held by

him. Under regulations to be prescribed by the Secretary,

appointments made under this subsection shall be made on

a fair and equitable basis. Selections shall be based upon

ability and efficiency with regard being given to seniority

and age. Aug. 10, 1956, c. 1041, 70A Stat. 195.

Department of Defense Directives:

Department Directive 1205.4; Inclusion Of Reservists

On Boards Considering Members Of Reserve Compo-

nents Under § 266 Of Title 10 U.S.C. (See Appendix

la).

Army Regulations:

Army Regulation 624-100, Promotion of Officers on

Active Duty;

Section III, 4 16(b)(5)

Whenever a zone of consideration includes non-

Regular officers, selection boards will, where

practicable, include at least one officer of the

Reserve components.

Section I, § 1 and 2(a)-(h) (Appendix at 3a).

Section IV, { 22-23, 25 (Appendix at 4a).

Army Regulation 635-100, Section XVII, § 3-65(a)-(d),

Personnel Separations, Officer Personnel; (Appendix at

Army Regulation 15-185; Boards, Commissions, and

Committees, Army Board for Correction of Military Re-

cords, § 9;

Other Proceedings Not Stayed. The application to the

Board for correction of a record will not operate as a

stay of proceedings being taken with respect to the

person involved.

STATEMENT OF THE CASE

Petitioners are United States Army Reserve officers who

were released from active commissioned service by reason

of not being selected for promotion in 1974 and 1975 by

Department of the Army Promotion Selection Boards.’

Appendix at 47a. The Selection Boards that did not

select Petitioners failed to contain Reserve officer member-

ship as required by Title 10 U.S.C. §266 and Army

Regulation (AR) 624-100. (Appendix at 52a). Petitioners

filed applications with the Army Board for Correction of

Military Records (ABCMR) challenging the validity of the

action of the Selection Boards and Petitioners’ resulting

release from active commissicned service. The ABCMR

found that the absence of Reserve officer membership on

the Selection Boards was an “injustice” and deprived

Petitioners of consideration in the manner intended.

(Appendix at 38a).

' Petitioners were non-selected by Promotion Boards which

convened on or about March 26, 1974 and April 8, 1975.

Upon recommendation from the ABCMR, the Secretary

of the Army convened “Reconstituted” Selection Boards to

reconsider Petitioners for promotion and to report their

findings to the ABCMR for such administrative action as

the ABCMR might deem appropriate. (Appendix at

40a). After the 1974 Reconstituted Selection Boards

were substantially complete, Petitioners discovered that

the manner in which those boards were conducted was not

in accordance with law and regulation.

After the Reconstituted Selection Boards’ results were

provided to the ABCMR, the ABCMR determined that

since Petitioners had not been favorably considered that

the absence of Reserve officers on the original Selection

Boards was “harmless error” and, therefore, Petitioners’

original non-selections were neither erroneous nor unjust.

(Appendix at 45a).

Petitioners filed suit in the Court of Claims challenging

Petitioners’ original non-selections and the action taken by

the ABCMR.

Administrative Proceedings

In the Fall of 1975, Petitioners filed applications for

correction of their military records with the ABCMR,’

requesting, inter alia, voiding of their failure of selection

for promotion to the next higher grade, appropriate

correction of their records and reinstatement to active

service. Petitioners challenged the validity of the actions

of the 1974 and 1975 Selection Boards and their resu:ting

? Over 1,300 applications were filed before the ABCMR by

officers similarly situated as Petitioners.

Three “lead” applications were filed and fully briefed which

controlled the ABCMR’s decisions on any later applications filed

raising the same issues. As a result of being denied relief,

officers similarly situated filed various suits. There are present-

ly at least 38 pending cases in the United States Court of Claims

involving in excess of 100 Reserve officers which have been

suspended pending this Court’s determination in this case.

release from active commissioned service because (1) there

was no Reserve membership on the 1974 and 1975

Selection Boards contrary to 10 U.S.C. §§ 266, 277 and

3442, Department of Defense Directive at 1205.4 and

Army Regulation 624-100; (2) that the percentage of

selections from the secondary zone was unlawful and in

violation of Army Regulation 624-100 and finally; (3) that

the Selection Boards in question failed to make the proper

factual findings as required by Army Regulations 624-100

and 635-100 in that Petitioners were not found to be not

fully qualified to assume the responsibilities expected of

the next higher grade.‘

The ABCMR granted Petitioners a hearing on December

10, 1975 where applicants were allowed to present testi-

mony and other evidence.’ Subsequent to the hearing, the

ABCMR rendered its decision finding that there were no

Reserve officer members on the Selection Boards in

question and that it was practicable to have Reserve

officer membership on those boards. In light of these

> AR 624-100, { 22-23 as published at the time of Petitioners’

original non-selections authorized only a 7.5% secondary zone

selection. The original Selection Boards granted 15% of the

available promotion vacancies to the members of the secondary

zone. Each secondary zone selection effectively deletes a vacancy

from a member of the primary zone. Petitioners were members

of the primary zone. Appendix at 49-50a, 67-68a.

‘ If an officer is found “fully qualified” for promotion but not

selected, such a determination is not a passover for separation

under the two passover rule. (Appendix at 3a, 6a, 73a).

5 In spite of the Secretary’s knowledge of the defect in the

composition of the Selection Boards (and the other defects

alleged by Petitioners), he refused to retain the Petitioners, and

others similarly situated, on active duty until the ABCMR

decided the controversy. On October 29, 1975 the Secretary

ordered all Army units to continue discharge processing of

affected officers. The ABCMR’s hearing was at that time

scheduled for December 10, 1975. The Secretary grounded his

decision on the fact that AR 15-185, {9 states that ABCMR

action does not operate to “stay other personnel actions’.

Attachment D, Plaintiffs’ Stipulation of Fact. Accordingly,

Petitioners were released from active duty.

findings, the ABCMR found that Petitioners might have

been deprived of consideration in the manner intended in

that:

. . although the [Petitioners] have not shown that

they have been harmed because there was no Reserve

officer on the Boards, the failure to have a Reserve

officer as a member of the Selection Board raises some

doubt as to whether the [Petitioners] were accorded

proper consideration for promotion under the 1974

and 1975 promotion criterion.” (See Appendix at 38a).

The ABCMR then recommended to the Secretary that

“Reconstituted” Selection Boards be convened to reconsid-

er all officers who were originally eligible in the primary

zone and that:

“. . the letter orders of instruction and guidance

pertaining to the primary zone previously furnished

the original 1974 and 1975 Selection Boards be

utilized as the criterion for consideration and selec-

tion.” See Appendix at 39a.

The names of officers selected and not selected by these

Reconstituted Selection Boards were to be reported back to

the ABCMR for further administrative action in connec-

tion with those who had filed applications. (Appendix

at 39-40a).

On January 27, 1976 the Secretary approved the

findings, conclusions and recommendations of the ABCMR

and issued a directive to the Chief of Staff to convene

Reconstituted Selection Boards in accordance with the

recommendations of the ABCMR and stating:

. . that the letter orders of instruction and guid-

ance pertaining to the primary zone previously fur-—

nished the original 1974 and 1975 Selection Boards be

utilized as the criterion for consideration and selec-

tion.” (Appendix at 40-41a).

Consistent with the findings of the ABCMR, the Secret-

ary’s directive indicated merely that the names of those

selected and non-selected by the Reconstituted Selection

Boards would be reported to the ABCMR for appropriate

administrative action, but did not otherwise indicate the

effect of a selection or non-selection by these Reconstituted

boards. The Secretary’s implementing memorandum was

silent on Petitioners’ request to have their records cor-

rected to eliminate their original non-selections and for

reinstatement to active duty. Petitioners were not recalled

to active duty. (Appendix at 40a).

The Secretary did not convene the Reconstituted Selec-

tion Boards as duly constituted statutory selection boards

pursuant to 10 U.S.C. §3442 and Army Regulation

624-100 with power to non-select an officer for purposes of

discharge from active duty.° The Secretary viewed the

Reconstituted Selection Boards as “merely an evidentiary

proceeding into the question of harmless error” to assist

the ABCMR and the Secretary in a final disposition of the

case. Appendix at 66a; Defendant’s Reply to Plaintiffs’

Cross-Motion for Summary Judgment at 5-6, 16; Defen-

dants Response to Plaintiffs’ Motion for Rehearing.

The “letter orders of instruction and guidance” used in

operating the 1974 and 1975 Reconstituted Selection

Boards established the “ground rules” for the operation of

the boards governing, inter alia, the selection method to be

used; numbers to be selected; the number that can be

selected in the primary zone and the authorized number

which the Selection Boards in their discretion can select.

The original letter to the Lieutenant Colonels Board

provided that a maximum of 3,266 primary zone officers

could be selected for promotion. The letter of instruction

that was given to the Reconstituted Selection Boards

deleted secondary zone vanacies from the total promotion

* The Reconstituted Selection Boards were not viewed as

substituted boards in place of the original boards since all

officers previously promoted were to keep their promotions.

slots available and allowed only 2,806 promotions.’ The

original 1974 and 1975 Selection Boards had selected a full

15% of secondary zone officers® for promotion. Virtually all

of these officers selected in the secondary zone by the

original Selection Boards which contained no Reserve

officer membership were Regular officers.’ The Reconsti-

tute i Selection Boards deprived Petitioners of the oppor-

tunity to compete for 460 promotion vacancies before

selection boards with Reserve membership contrary to 10

U.S.C. § 277 and 10 U.S.C. § 3442.

The Reconstituted Selection Boards proceedings were ex

parte. Petitioners were not provided with a copy of the

letter of instruction and guidance prior to the convening of

those boards. Nor were they specifically advised as to

when the Reconstituted Selection Boards would convene.

Upon learning that the Reconstituted Selection Boards

had convened, Petitioners on April 9, 1976 requested

copies of the letters of instruction and the names of the

members sitting on each Reconstituted Seiection Board.

By reply dated May 3, 1976, the Department of the Army

provided Petitioners with copies of the instructions that

had been provided to the 1974 Reconstituted Selection

Boards. Plaintiffs’ Motion for Rehearing and Clarification

of Opinion, Attachment B. At the time of receipt of the

7 Attachments I and N, Plaintiffs’ Statement of Fact. Letters

of instructions to the other Reconstituted Boards contained the

same percentage deletion of secondary zone vacancies. Attach-

ment I and N to Plaintiff's statement of facts in Adams.

* The maximum number authorized by the Secretary’s origin-

al letter oi instruction.

° 98.6% of the secondary zone selections before the 1974

Lieutenant Colonels Boards and 87.4% of the secondary zone

selections before the 1974 Majors Boards went to Regular

officers. In 1975, the Lieutenant Colonels Boards gave 100% of

their secondary zone selections to Regular officers and the

Majors Boards gave 81% of their secondary zone selections to

Regular officers. See, Plaintiffs’ Statement of Facts, {{21 and

22.

letters of instruction, the 1974 Temporary Majors and

Warrant Officers Reconstituted Selection Boards had

already been completed and the 1974 Lieutenant Colonels

Board was in progress."

It was only after the ABCMR met following the

completion of all of the Reconstituted Selection Boards in

the Fall of 1976, that any statement was given to

Petitioners that a non-selected officer would be given no

relief. Plaintiffs’ Motion for Rehearing, p. 10, fn. 11. The

ABCMR denied Petitioners’ applications for correction of

their records and found:

“That the {Petitioners’] records having been reconsti-

tuted in a manner prescribed by the Secretary having

been reviewed by properly reconstituted . . . Promo-

tion Boards under the primary zone of the 1974 and

1975 criteria, it is reasonable to presume that had

they been considered by properly constituted boards,

they would not have been selected for promotion at

the time concerned under the ‘best qualified’ method.

* * * * * *

In consideration of the foregoing findings and conclu-

sions, the [Petitioners’] non-selections for promotion

. under the 1974 and 1975. . . selection criteria

are neither erroneous nor unjust.” Appendix at 45-

46a.

'° The Court of Claims opinion erroneously states tha

Reconstituted 1974 and 1975 Selection ann convened Pan

May, 1976 through August, 1976. (Appendix at 54a). The

Reconstituted Selection Boards schedule actually was as follows:

1974 Majors Boards for AMEDD and APL convened on March

30, 1976 and April 13, 1976, respectively; the Chief Warrant

Officers W-3 and W-4 Boards convened on April 6, 1976 and the

Lieutenant Colonels Boards convened on May 4, 1976. The 1975

Boards convened as to Chief Warrant Officers W-3_and W-4 on

June 8, 1976; as #6 Majors on July 13, 1976 and as to Lieutenant

Colonels AMEDD and APL on September 14, 1976 and August

24, 1976, respectively. See letters of instructions,Attachment B

Plaintiffs’ Motion for Rehearing and Attachment N, Plaintiffs’

Statement of Facts in Adams and Doyle.

The absence of Reserve officers on the original Selection

Boards was therefore viewed as “harmless error” and

Petitioners’ release from active duty in the Fall of 1975

was retroactively validated.

The ABCMR also found that the establishment of

secondary zone selection rates in a larger number than

that established by AR 624-100, {22-23 was justified by

the existence since 1972 of written policy allowing the

higher rates. With respect to the May, 1975 retroactive

change to AR 635-100, the ABCMR found that the May,

1975 amendment did not serve to operate retroactively

since:

“ such messages merely clarified and confirmed

the longstanding Departmental approved policy, that

an officer who was not selected (recommended) for

temporary promotion to the next higher grade would

have such non-selection counted towards separation,

elimination or removal from active duty as appropri-

ate... .” Appendix at 36a.

Proceedings Before United States

Court of Claims

Following the denial of their applications for correction

of military records, Petitioners filed suit in the United

States Court of Claims seeking backpay and allowances

from their date of release and other relief on grounds that,

inter alia, the requirement imposed upon Petitioners by

the ABCMR to prove that they were harmed by the

defective composition of the original Selection Boards and

the attempted retroactive validation of the original Selec-

tion Boards was contrary to Jaw.'' Respondent conceded

i’ Included in this argument was Petitioners’ contention that:

the Reconstituted Selection Boards did not accurately reflect

what would have happened before the original Selection Boards

because Petitioners were not given the opportunity to compete

for those vacancies previously given to members of the second-

ary zone. Respondent did not plead or otherwise raise any

defense based upon Petitioners’ failure to notify the secretary of

the defect in the “evidentiary proceedings”.

that Petitioners had exhausted all available administra-

tive remedies. See, Petition and Answer thereto, {19 and

Plaintiffs’ Statement of Facts Not in Dispute, {42 and

Defendant’s Response. The parties submitted the matter to

the Court of Claims on Cross-Motions for Summary

Judgment.

Throughout the litigation Respondent maintained that

the Reconstituted Selection Boards were not “new” Promo-

tion Boards that could independently support a release

from active duty, but rather mere “evidentiary proceed-

ings” into the question of “harmless error” ancillary to the

ABCMR’s consideration of Petitioners’ applications.

Appendix at 62a, 66a; Brief in Support of Plaintiffs’

Motion for Summary Judgment, note 4; Defindant’s Reply

to Plaintiffs’ Response to Defendant’s Cross-Motion for

Summary Judgment, p. 5-6, 16, Defendant’s response to

Plaintiffs’ motion for rehearing. The case was briefed and

argued on that issue.”

The Court of Claims rejected the ABCMR’s finding of

“harmless error” and held that Petitioners have suffered a

serious violation of their legal rights (Appendix at 65a),

finding that the absence of Reservists on the original

Selection Boards frustrated the Congressional intent to

eliminate conscious or unconscious bias against Reserves.

The Court stated:

“We reaffirm our holding in Sanders v. United States

[594 F.2d 804 (1979)] that an officer cannot be

The case was consolidated with Adams v. United States,

Court of Claims No. 275-77. The only factual difference between

Adams and Doyle is that the plaintiffs in Adams contained

officers of all ranks, all of whom would have reached 18 years

active service prior to the completion of the Reconstituted

Selection Boards if they had been retained on active service in

the Fall of 1975. By reason of the constructive active duty

ordered by the United States Court of Claims, all of the

plaintiffs in Adams are entitled to be placed on the retirement

roles togethe: with an award of backpay and allowances.

Appendix at 78a.

terminated under the two passover rule unless he had

had two fair chances at promotion as required by

statute and regulation. This includes, in this case,

consideration by boards which are constituted square-

ly in accordance with statute and regulation. This we

deem to be an officer’s basic right. Where the error is

in the violation of a provision designed to protect

against a general form of prejudice, and there is no

way of determining whether actual prejudice was

involved in highly subjective and secret decisionmak-

ing, we conclude that this right was not had. Thus, we

hold that [Petitioners], separations, predicated on two

passovers by illegally constituted boards were invalid.

These [Petitioners] were entitled to their position,

rank and pay until they were terminated from active

duty under proper authority.” (Appendix at 65a)."

The Court, however, rejected the Respondent’s position

which had been consistently taken in the briefs and in oral

argument that the Reconstituted Selection Boards were

mere “evidentiary proceedings” into the question of harm-

less error:

“(Respondent] has taken the extreme position that the

reconstituted boards were merely an evidentiary

proceeding into the question of harmless error and

has failed to consider any other. We feel that this

uncompromising attitude jeopardizes the best interest

of the government. Nor do we believe the facts

support defendant’s narrow reading of them.” Appen-

dix at 66a.

Noting that the Reconstituted Selection Boards followed

the standards and procedures of the original Selection

Boards with one exception, the Court of Claims acknowl-

edged that the Reconstituted Selection Boards did not

completely redo the job of the original defective Selection’

Boards:

“Since the reconstituted boards were instructed to and

did consider only officers from the primary zone, the

is A dissenting opinion was filed by Chief Judge Friedman

wherein he expressed the view that the absence of Reservists on

the original 1974 and 1975 Selection Boards was harmless error.

total number of officers those Boards were to select

was reduced by the number of secondary zone officers

the original Boards had selected. Plaintiffs allege that

this change in the number of officers the reconstituted

boards would select improperly impinged upon the

discretion of Selection Boards to select less than the

maximum permissible number from the secondary

zone, and thereby improperly reduced the number of

places for which the plaintiffs were competing and

that this disparity between the original and reconsti-

tuted boards meant that they did not have a fair

opportunity to be promoted.” (Appendix at 68a).

Absent from the Court of Claims’ opinion is the fact that

virtually all of the secondary zone selections given by the

original Selection Boards without Reserve officer members

were awarded to the Regular officers. Further, the Court of

Claims opinion does not acknowledge that accurate recon-

sideration of officers in the primary zone in symmetry

with Petitioners’ original consideration would not involve

a reconsideration for promotion of officers in the secondary

zone,’* but would involve a comparison of their files to

officers in the primary zone that would otherwise have

been promoted.

The Court of Claims concluded that notwithstanding the

Secretary’s directive that Petitioners be reconsidered by

the Reconstituted Selection Boards under the “same letter

orders of instruction and guidance which pertain to the

primary zone previously furnished the original 1974 and

1975 Selection Boards” that Petitioners should have

known from that directive that they would not in fact be

considered under the same instructions and that they

would be competing for 15% less promotion vacancies. The

‘* No secondary zone officer had filed a complaint with the

ABCMR. Officers in the secondary zone who had been promoted

would not be reconsidered for promotion since the ABCMR and

Secretary concluded that officers who had been previously

promoted by the original Selection Boards would not have their

promotions affected.

Court of Claims assumed that the Petitioners were aware

(although they had never been advised) that the ultimate

decision of the Secretary and ABCMR after actions taken

by the Reconstituted Selection Boards would be to retroac-

tively validate their original release from active duty:

“Since only officers in the primary zone had applied

for correction, and since only these officers were in the

situation that passovers resulted in release from

active duty, it is understandable that the Correction

Board addressed its remedy only to these individuals

. what we find determinative is that plaintiffs

were aware from the Correction Board’s decision that

only officers in the primary zone would be reconsid-

ered. No objection was made to the Correction Board

or to the Court concerning the manner of reconsidera-

tion until the reconstituted Selection Boards had not

recommended the selection of these officers... . . We

are convinced that at that time plaintiffs were well

satisfied with that part of the remedy which gave

them the opportunity to be reconsidered by new

Selection Boards for promotion retroactive to the

action of the original Selection Boards. We conclude

that under these circumstances, plaintiffs have

waived any objection to the manner in which the new

boards considered only primary zone officers when

they were well aware of the fact and chose not to raise

the objection until after they found out that they were

not recommended for promotion by the Reconstituted

Boards.” (emphasis the Court).'* (Appendix at 69-70a).

'* The Court also commented upon the filing of the Adams

case on April 13, 1976 before any action was taken by the Re-

constituted Selection Boards. (Appendix at 69-70a). In fact, most

of the Reconstituted Selection Boards of 1974 had been com-

pleted by that date, but the Court found it significant that

Petitioners did not raise the deduction of 15% selection vacan-

cies in that suit. As explained to the Court on motion for

rehearing, Petitioners were not aware of the deduction of the

15% until subsequent to May 3, 1976, well after suit was filed

and moreover, all of the plaintiffs in the Adams case would

reach 18 years service and would therefore not be subject to

discharge prior to the time the Reconstituted Selection Boards

could act so that there was no purpose in challenging the

After commenting upon familiar law that a party cannot

raise issues on appeal to a Court when it fails to raise the

issues before an administrative agency competent to hear

it in cas.s dealing with exhaustion of administrative

remedies, the Court stated: |

“Consonant with this doctrine plaintiffs are required

to voice their objections in such a way that the

Secretary or Correction Board is aware of problems

well known to plaintiffs, and the manner a remedy is

effectuated before it is effectuated. Plaintiffs could not

stand on their objections waiting to see if they were

retroactively promoted by the new boards and only

upon the new board’s adverse recommendations con-

tend that the remedy did not achieve its intended

result. The plaintiffs cannot have their cake and eat it

too. Any other power of the agency to correct errors,

would be wasteful of the good faith effort and expense

undertaken by the Secretary in this case, and would

not accord with principles of justice.” (Appendix at

71-72a). (emphasis added).'®

The Court held that Petitioners were not entitled to

reinstatement and consideration by two duly convened

Promotion Selection Boards but were entitled only to

constructive duty time and backpay from the date they

mechanics of the Reconstituted Selection Boards even after the

defect in them became known. The only issue in that case of any

significance was whether or not there could be any retroactive

validation of the prior illegal discharges since if there could not

be, the plaintiffs in Adams would reach the 18 year sanctuary

and must be retained until retirement. See AR 635-100, § 3-65(d)

(Appendix at 7a) and Opinion, (Appendix at 78a).

'’° The Court acknowledged that its result was “slightly

different” from the result in Dilley v. Alexander, 603 F.2d 924

(D.C. 1979) which found on substantially identical facts that the

restriction of consideration by the Reconstituted Selection

Boards to only primary zone officers materially affected the

plaintiffs’ prospect for promotion and that they were entitled to

reinstatement to active duty and reconsideration for promotion

by duly convened statutory Promotion Boards. Likewise in that

case, no waiver or estoppel defense was plead or argued by the

Respondent.

were released frem active service to the time when they

would have been released if they had been held on active

duty during the Reconstituted Board process.

Since a waiver issue had never been raised in defense by

the Respondent nor briefed nor argued by either party

before the Court of Claims, Petitioners filed a lengthy

Motion for Rehearing and Clarification of Opinion which

focused the Court’s attention upon the fact that neither the

ABCMR decision nor the Secretary’s implementing

memorandum put Petitioners on notice of the manner in

which the Reconstituted Selection Boards were to be

operated; that a fair and equitable reconsideration of only

primary zone officers required a comparison of files of

secondary zone officers; that the Reconstituted Selection

Board proceedings were in fact ex parte; that Petitioners

were not made aware of the actual content of the letters of

instruction to the Reconstituted Selection Boards until the

entire slate of 1974 Reconstituted Boards were almost

complete; and that the Department of the Army never

advised any of the Petitioners until the Reconstituted

Selection Boards were complete as to what the effect of

Reconstituted Selection Boards’ action would be. None of

the facts asserted in Petitioners’ Motion for Rehearing and

Clarification were disputed by the Respondent. See Defend-

ant’s response to Motion for Rehearing and Clarification.

Plaintiffs’ Motion for Rehearing was denied without

opinion on September 30, 1979. Since th2 September 30,

1979 order of Court measured constructive active duty

time from the date of letter notices required under AR

635-100, which were never sent, both parties filed further

motions for clarification which resulted in an order being

issued by the Court of Claims on November 30, 1979 which

set definite dates for the termination of constructive active

duty.

The Court of Claims also affirmed the ABCMR’s find-

ings that Petitioners’ rights had not been violated by

reason of the Secretary’s actions in establishing a 15%

promotion rate in the secondary zone and by reason of the

Secretary’s actions in retroactively changing AR 624-100

and 635-100 in May of 1975. The Court of Claims found

that the May, 1975 change merely clarified and confirmed

longstanding policy and that the ABCMR’s rejection of

Petitioners’ contentions as to the Secretary’s failure to

amend the regulations to provide for the 15% secondary

zone selection rate was not arbitrary or lacking in

substantial evidentiary support. (Appendix at 74-77a).

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE UNITED STATES COURT OF CLAIMS

CONTROLS PENDING CASES INVOLVING THE DENIAL OF THE

SAME STATUTORY RIGHTS BEING ASSERTED BY OTHERS SIMI-

LARLY SITUATED.

For a period of consecutive years prior to 1976, the

Secretary of the Army convened Promotion Selection

Boards which considered Reserve Officers for promotion to

all officer ranks, but failed to contain Reserve membership

as required by statute and governing regulation. As a

result of not being selected for promotion by these

Selection Boards, several thousand Reserve officers were

released from active commissioned service. Many of these

officers have filed suit in the United States Court of

Claims which actions have been suspended pending a final

resolution of the issues presented in this litigation."

In addition, officers who were non-selected for promotion

in 1975 and 1976 have filed cases in the United States

Court of Claims. These officers contend that not only was

their 1975 non-selection invalid for purposes of supporting

a release from active service, but that their 1976 non-

selection was also defective since they were considered _as

'" “See, note 2, supra. Representative cases include Baxter, et

al. v. United States (Court of Claims No. 447-77); Billingsley, et

al. v. United States (Court of Claims No. 448-77); and Childers,

et al. v. United States (Court ot Claims No. 521-77).”

once non-selected officers contrary to law. Proceedings in

these cases have also been suspended in the United States

Court of Claims.'* However, the validity of the 1975 and

1976 Selection Boards has been resolved favorably to

complaining officers by the United States Circuit Court of

Appeals for the District of Columbia Circuit in Dilley, et al

vu. Alexander, 603 F.2d 914 (D.C. 1979) creating a conflict

in reasoning and result. See infra at 22. |

All pending cases claim, as do Petitioners, reinstatement

to active service together with active duty pay and

allowances in the grade held at the time of the officer’s

release to the date of reinstatement. In some cases,

claimants were released shortly before retirement and are

claiming retirement benefits and placement on the retire-

ment roles by reason of constructive credit for active duty.

(See Appendix at 78a).'°

In response to the adverse decision in Doyle, several

cases have recently been filed in the United States District

Court for the District of Columbia where plaintiffs are

required to waive any backpay claims in excess of $10,000

which would not be a prerequisite to filing suit in the

Court of Claims.” See, 28 U.S.C. §1346(a); compare 28

U.S.C. § 1491.

In total, the pending litigation affected by its case

involves in excess of one hundred former active duty

'* See, McKnight ve United States, Court of Claims No.

323-79C; and Canas v. United States, Court of Claims No.

445-77.

'* Plaintiffs in Adams v. United States, which was heard

concurrently with Doyle by the United States Court of Claims

are not joined in this petition since all of those officers will

qualify for retirement under the provisions of AR 635-100,

3-65(d) in accordance with the Court of Claims decision

(Appendix at 78a).

* These cases are: Bockoven v. Alexander, Civil Action No..

80-0417; Cooper v. Alexander, Civil Action No. 80-0416; and

Bailey v. Alexander, Civil Action No. 80-0415.

officers. The implications of the Doyle decision go far

beyond the parties to this case.

2. THE COURT’S DECISION IS IN CONFLICT WITH THE CONUUR-

RENT DECISION IN DILLEY, ET AL V. ALEXANDER, 603 F.2d 914

(D.C. 1979) AND IS IN CONFLICT WITH THE PRINCIPLES OF

MATTHEWS V. ELDRIDGE, 424 U.S. 319 (1976) AND WEINBERGER

V. SALFI, 422 U.S. 749 (1975).

In Dilley, officers non-selected in 1975 and 1976 filed

suit in the United States District Court for the District of

Columbia prior to their release from active duty. As in

Doyle, the Secretary took the position that the Reconsti-

tuted Boards were solely designed to determine whether

Reserve officers had been prejudiced by the admitted

violation of § 266. 603 F.2d at 924, 925. As in Doyle, the

Secretary never argued that plaintiffs were barred from

challenging the Reconstituted Selection Board proceedings

by failing to exhaust administrative remedies or to

otherwise object to the manner in which the Reconstituted

Selection Boards were conducted. Accordingly, the Court of

Appeals in Dilley found that since the selection of candi-

dates from the secondary zone effectively displaced the

candidates of the primary zone, the reduction in the

number of available promotion vacancies before the Recon-

stituted Selection Boards “materially affected appellants’

prospects for promotion before the [Reconstituted Selec-

tion] Boards and deprived them of substantial rights

guaranteed them by the statute”. 603 F.2d at 925.

In contrast to the view of the United States Court of

Appeals for the District of Columbia Circuit, the Court of

Claims reviewed the reduction in available promotion

vacancies before the Reconstituted Selection Foards as an

unimportant defect stating that in their view it was

unlikely that the Reconstituted Selection Boards would

have selected less than the maximum number of secondary

zone officers in any event. (Appendix at 68-69a). Addition-

ally, the Court of Claims applied the doctrine of exhaus-

tion of administrative remedies to support its findings that

Petitioners had forfeited their right to judicial review of

the defect in the reconstituted boards stating:

Decision-making bodies normally have the power to

correct their own errors, Bookman v. United States,

197 Ct. Cl. 108, 453 F.2d 1263 (1972), and the

Correction Board is no exception. The doctrine that

requires that known objections be made to the agency

is to insure that administrative agencies are thereby

afforded an opportunity to make adjustments and

correct errors on the administrative level, thus per-

mitting the government to mitigate or avoid large

damage claims that might otherwise be created

(United States v. Holpuch Co., 328 U.S. 234, 239

(1946)). Blackmar v. United States, 173 Ct. Cl. 1035,

1045, 354 F.2d 340, 347 (1965). (Appendix at 71a).

After Doyle was decided, Respondent filed a second

Motion for Reconsideration with the Court of Appeals

alleging its opinion was in conflict with Doyle. The Court

of Appeals properly treated the Doyle opinion as being an

exhaustion of administrative remedies decision. In dismiss-

ing the Secretary’s second Motion for Reconsideration, the

Court pointed out that the Secretary had agreed that

plaintiffs had exhausted their administrative remedy and

exhaustion was not required under this Court’s decisions

in Matthews v. Eldridge, supra and Weinberger v. Salfi,

supra. 603 F.2d at 926.”

Regardless of the label applied by the Court of Claims,

its opinion is, in fact, an exhaustion of administrative

remedies decision. The view of the Court of Claims is

clearly in conflict with the view of this Court in Matthews

v. Eldridge, supra and Weinberger v. Salfi, supra, which |

establishes that the doctrine may not be applied when the

Secretary himself has agreed that there has been exhaus-

** The Court of Appeals also noted that it had in the past

declined to consider arguments raised for the first time on

appela. 603 F.2d at 926.

tion because he has therefore satisfied himself that no

further review is warranted by reason of the internal

needs of the agency. See Matthews v. Eldridge, 422 U.S. at

330. In addition, Salfi recognizes the obvious proposition

that once applicants have presented their claims at a

sufficiently high level of review to satisfy the Secretary’s

administrative needs further exhaustion would be futile

and a waste of administrative resources unsupported by

any administrative interest. 422 U.S. at 766.

Any objection by the Petitioners to challenge the

Reconstituted Selection Board process would have been

futile. Any objection would not have halted the proceed-

ings of the Reconstituted Selection Boards. Army Regula-

tion 15-185, § 9 which governs ABCMR proceedings states

that issues under consideration by the ABCMR do not

operate to stay “any proceedings” being taken with respect

to the person involved.” Any objection by Petitioners

(assuming arguendo they had adequate knowledge to

object) would have been meaningless and is, therefore, not

required since there is no clear avenue of relief.

There is a conflict in analysis and result between Doyle

and Dilley. The Doyle decision is contrary to the require-

ments of Matthews and Eldridge. Moreover, it is impossi-

ble for persons affected to reconcile the conflicts in these

two decisions and the two conflicting results create an

injustice of serious proportion. These conflicts provide

sufficient grounds for this Court to review the proceedings

and issue its writ of certiorari to the United States Court

of Claims.

2 See footnote 5, supra, for Secretary’s prior application of

this regulation.

3. THE DOYLE DECISION FRUSTRATES CONGRESS’ PURPOSE

WHICH IS TO PREVENT DISCRIMINATION IN THE PROMOTION

PROCESS OF THE MILITARY SERVICES. |

As a general proposition, the courts will not interfere

with or review internal military management matters

including the promotion process. See, e.g. Orloff v. Wil-

loughby, 345 U.S. 83 (1953); Brenner v. United States, 202

Ct. Cl. 678 (1973); Abbruzzo v. United States, 513 F.2d 608

(Ct. Cl. 1975). However, the courts are not reluctant to

review military selection board or other military proceed-

ings where substantial rights quaranteed by statute. or

regulation have been violated. See e.g., Stewart v. United

States (Court of Claims No. 198-77, December 12, 1979);

Dilley, et al v. Alexander, supra; Ricker v. United States,

184 Ct. Cl. 402, 396 F.2d 454 (1968); Harmon v. Brucker,

355 U.S. 579 (1958); Henderson v. United States, 175 Ct.

Cl. 690 (1966). It is a basic tenet of our legal system that a

government agency is not at liberty to ignore its own laws

and that agency action in contravention of applicable

statutes and its own regulations is unlawful. E.g., Vitarelli

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

363 (1957).

In Doyle, the Court of Claims stated that the absence of

Reserve officers could be corrected by giving Petitioners

“the opportunity to be promoted in strict compliance with

law”. Appendix at 62a. The Court of Claims also conceded

there was a difference in the manner in which Petitioners

were considered for promotion between the original Boards

and the Reconstituted Boards. Appendix at 66a. The

difference in the manner of reconsideration could only

adversely affect Petitioners. The difference in the manner

of reconsideration is obviously discriminatory in violation

of 10 U.S.C. §277 and 10 U.S.C. § 3442 as well as a

violation of Army Regulation 624-100 which requires that

primary zone officers and secondary zone officers compete

for the same promotion vacancies. Cf. Appendix at 50a; AR

624-100, §23(b). The decision sidesteps the lack of “strict

compliance with law” and inherent unfairness by finding

that Petitioners had waived their rights to complain.

The decision has effectively emasculated the protections

intended by Congress to the Petitioners contained in 10

U.S.C. § 3442, § 266 and § 277. The policy expressed in the

Court of Claims decision could drastically curtail effective

judicial review of administrative action in all areas of

government. “a

4. THE COURT OF CLAIMS DECISION, THROUGH A MISCHARAC.

TERIZATION OF THE ISSUE AND INCOMPLETE AND MISLEAD-

ING RECITATION OF FACTS, DOES NOT DISCLOSE TO FUTURE

LITIGANTS THAT IT CREATES A NEW STANDARD WHICH MUST

BE MET BY THOSE SEEKING REVIEW OF ADMINISTRATIVE

ACTION, WHICH STANDARD IS CONTRARY TO EXISTING LAW.

The opinion mischaracterizes the Petitioners’ claim as

being a complaint that the Selection Boards did not

completely redo the job of the defective boards in that they

“did not reconsider officers from the secondary zone”.

Appendix at 67a. The Court finds the determinative factor

in the case to be that Petitioners “were aware from the

Correction Board’s decision that only officers in the

primary zone would be reconsidered”. Appendix at 69a.

Petitioners’ actual complaint was that the reconsideration

of primary zone officers was conducted in an improper

manner because it did not involve a comparison of primary

zone officer records with secondary zone officer records to

determine whether any of the primary zone officers being

reconsidered would be entitled to some of the promotion

vacancies previously granted primarily to Regular officers

in the secondary zone. See Plaintiffs’ Motion for Rehearing

at 1-5. It is only by virtue of this mischaracterization that

the Court can find that the ABCMR’s decision put

Petitioners on notice of the restricted scope of their

promotion reconsideration.

The opinion is also inadequate due to an incomplete and

misleading recitation of material facts. The opinion sets

forth the following facts which are either misleading or not

disclosed:

(a) that the “Reconstituted Boards utilized the same

instructions and guidelines the Secretary had given the

original boards”. (Appendix at 67a) In fact, the instruc-

tions and guidelines were rewritten to delete secondary

zone promotions;

(b) there is no disclosure that Petitioners were not

advised of the contents of the rewritten letters of instruc-

tion until after the Reconstituted Selection Boards were

well underway and only after Petitioners request. See,

supra at 11;.

evidentiary proceedings” would be used by the ABCMR

and that Petitioners were satisfied with the opportunity to

be promoted retroactive to the action of the original

Selection Boards. Appendix at 70a. In fact, Petitioners had

no knowledge of how the results would be used when

reported to the ABCMR. See, supra at 9-10.”

(d) that if Petitioners had complained the proceedings

would have been halted (Appendix at 71-72a). The opinion

does not disclose that the Secretary’s own regulation (AR

15-185, { 9) and prior actions would indicate the proceed-

ings would not have been halted. See, supra at note 5.

*“ Certain options were open to the ABCMR, among which

would be merely to see if two boards looking at the same records

under identical instructions with only the membership of the

boards changed would report significantly different results. If

that happened, the ABCMR might determine that the error was

in fact “harmful” and order all claimants back to active service

to be considered by two new statutory Promotion Selection

Boards convened in due course. The Court of Claims’ character-

ization of the facts necessarily does not lead to a consideration of

this alternative which would have been consistent with the

power granted to the Reconstituted Selection Boards by the

Secretary as merely “evidentiary proceedings”.

(e) that the Secretary did not argue any form of

estoppel, waiver or exhaustion of administrative remedies

and that the Secretary did, in fact, view the issues

presented by Petitioners as properly before the court and

ripe for resolution.

(f) the opinion infers that the initial filing of the Adams

proceedings in the United States District Court for the

District of Columbia on April 13, 1976 was somehow an

attempt to hide the defect in the evidentiary proceedings

from the Secretary, when the results of the Reconstituted

Selection Boards had no effect on the outcome of Adams.

See supra at note 15.

(g) that the “problems” with the evidentiary proceed-

ings were unknown to the Secretary and that the Secret-

ary undertook a “good faith effort” so that allowing

Petitioners to prevail “would not accord with principles of

justice”. (Appendix at 71-72a).

Ignored is the fact that the Secretary knows the law as

well as Petitioners, particularly since the issue of interfer-

ence with Promotion Board discretion to determine the

number of secondary zone promotions was before the

ABCMR in this case. (Appendix at 35a). It was clear from

the Secretary’s submissions in this case that he took a

calculated risk in devising the “test for prejudice” as a

means to uphold Petitioners’ release from active service

based upon non-selection given by the original boards. See,

Defendant’s Reply to Plaintiffs’ Response to Defendant’s

Cross-Motion for Summary Judgment, pp. 5-6, 16. Com-

pare Dilley v. Alexander, supra at 924 (commenting that

this was a “ends-justifying-the-means procedure’).

The Court of Claims decision is setting forth a new

standard for litigants seeking review of administrative

remedies because none of the elements required of a

waiver are present in this case. Waiver requires acts

indicating an intentional relinquishment or abandonment

of a known right or privilege. Curtis Publishing Company

v. Butts, 388 U.S. 130, (1967). Knowledge of the facts upon

which the waiver is based must be clear and without

question, particularly in cases of this nature. Waiver is not

applied where knowledge of the ultimate fact must be

assumed by implication. Shearson Hayden Stone, Inc. v.

Leach, 583 F.2d 367 (7th Cir. 1978); United States v.

Newman, 478 F.2d 829 (8th Cir. 1973). The Court of

Claims cited no cases on the doctrine of waiver in support

of its decision, but in fact relied only on cases dealing with

the exhaustion of administrative remedies.

By reason of all of the above, the Court of Claims

opinion is not in accordance with existing law. Litigants

and potential litigants before all federal agencies who are

not intimately familiar with the facts of this case are

seriously misled as to the standards which the Court of

Claims may require of those seeking judicial review.

Future litigants are not put on notice that they will be

required to be watchdogs over any administrative reme-

dial process that occurs after the close of their adversary

hearing even where they do not what the effect of the

remedial process will be on their claim.

For all of these reasons it is approp. iate for this Court to

issue its writ of certiorari to the United States Court of

Claims.

5. THE DECISION WILL LEAD TO LENGTHY ADMINISTRATIVE

PROCEEDINGS AND MAY CAUSE MANY ADMINISTRATIVE PRO-

CEEDINGS TO BE DEEMED INADEQUATE UNDER THE DOC-

TRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES.

The Doyle decision requires applicants to file with the

agency concerned, Motions for Reconsideration or objec-

tions to any granted remedy if there is any conceivable

reason to suspect that the remedy does not or may not

conform to law. Contra, 5 U.S.C., § 704. See, Plaintiffs’

Motion for Rehearing at 14-15. Therefore, the impact of

the Doyle doctrine must necessarily lead to more pro-

tracted administrative proceedings. Numerous authorities

indicate exhaustion is not required where further appeals

to the agency would unduly delay plaintiffs’ remedy or

would be futile. Isbrandtson v. United States, 211 F.2d 51

(D.C. Cir. 1954): Sunshine Publishing Company v. Sum-

merfield, 184 F. Supp. 767 (D.C. 1960).

In the case of military officers, delay in granting them a

remedy causes irreparable injury. The most important

single document in an officer's record is the officer

efficiency report. During a period when an officer is off

active duty he is not performing in an assignment and

receiving no efficiency reports. Therefore, a reinstatement

to active duty with constructive active service and correc-

tion of his records still leaves him with irreparable injury

because the gap in his service records may effectively

preclude any hope for further promotion. Constant objec-

tions or requests for reconsideration of curative proceed-

ings will necessarily lead to further delay which may

render the administrative proceedings inadequate to pro-

vide any realistic remedies for the officers concerned. All

of this is unnecessary and contrary to the policy of

requiring exhaustion of administrative remedies since the

latter consideration is intended only to give the adminis-

trative agency concerned an opportunity to pass on

questions within its own expertise and to cure error.

Where the agency is given that opportunity and institutes

remedies which are inadequate or defective, no rational

policy should require Petitioners to resubmit themselves to

the administrative process only to be prejudiced by further

delay.

6. THE DECISION ENCOURAGES ADMINISTRATIVE AGENCIES TO

ISSUE VAGUE AND IMPRECISE DEuISIONS AND ALLOWS THEM

TO BENEFIT FROM A KNOWING VIO VATION OF LAW.

Since the ABCMR’s decision and Secretary’s implement-

ing memorandum cannot realistically be said to put

Petitioners on notice of the diminution of promotion

vacancies for which Petitioners were entitled to compete as

a matter of law and since the Secretary vigorously insisted

that the proceedings were evidentiary only, executive

agencies are now in a position to benefit from vague and

imprecise decisions which mislead future claimants lead-

ing those claimants to be barred from seeking judicial

review under the Doyle doctrine.“ Indeed, the opinion

accomplishes exactly what the Court of Claims said it was

not doing, which is to provide a method whereby adminis-

trative agencies can avoid meeting their statutory obliga-

tions and avoid obeying their own regulations contrary to

the clear directives of this Court. See, e.g., Viteralli v.

Seaton, supra; Harmon uv. Brucker, 355 U.S. 579; and

Service v. Dulles, supra.

* This Court cannot assume that administrative agencies will

always deal fairly with the public. In Dilley v. Alexander, supra,

the Government prevented a preliminary injunction holding

those plaintiffs on active duty until their case was decided on

the grounds that the Court could grant to them retroactive

backpay, credit for time served and other emoluments of service

if they were successful. Therefore, the Government argued under

Sampson v. Murray, 415 U.S. 937 (1974), a preliminary

injunction was not warranted. The Court accepted the Govern-

ment’s argument. After the Court of Appeals decision invalidat-

ing plaintiffs’ discharges and ordering them reinstated to active

duty, the Government now contends that those plaintiffs are

entitled to no retroactive credit for the time served, backpay and

allowances and other emoluments of service and are entitled

merely to be placed back in the military — obviously to be -

non-selected twice again due to the gaps in their military record —

and then processed out of the service.

7. THE DECISION ALLOWS ADMINISTRATIVE AGENCIES TO

VIOLATE THEIR OWN REGULATIONS BY RELYING UPON A PAST

PATTERN OF VIOLATIONS.

The Doyle decision sanctions changes in Governmental

regulations by implication and retroactive changes in

regulations to validate an act in violation of published

Governmental regulations. Prior to the Doyle decision it

had been a fundamental principle of administrative law

that Government agencies, including the service secretar-

ies, must strictly observe regulations which they had

established. Vitarelli v. Seaton, supra, Service v. Dulles,

supra; U.S. v. Shaughnessy, 347 U.S. 260 (1954). Army

Regulation 624-100 controls the promotion of commis-

sioned officers on active duty and Army Regulation

635-100 governs the release from active duty of commis-

sioned officers. These Regulations are comprehensive in

scope and applicable to both Regulars and Reserves.”

When the original Promotion Selection Boards were

conducted, the Secretary instructed the Board that it could

select a maximum of 15% from the secondary zone for the

grade of Lieutenant Colonel and Major contrary to the

then published provisions of AR 624-100, {| 23.”

The Correction Board and the Court of Claims viewed

the Secretary’s action as valid relying upon the fact that

on September 19, 1972 an all units message announced

that the Secretary had approved “policy” for modification

of the secondary zone to 15%. ABCMR Record, Vol. VII,

* The procedures to amend the regulations are set forth in

army regulations 310-1, 310-2, and 310-3. These procedures

provide that a regulation can be amended or added to only by

the publication of changes published as numbered changes to the

basic regulation and further provides that serious errors are to

be corrected immediately by published changes but that minor

changes not affecting policy or doctrine can accumulate and be

published in the next major change or revision to the regulation.

See ABCMR Record, Vol. Vi, R-1112.

* See note 3, supra.

R-1170.” Change no. 3 to AR 624-100 was published on

August 6, 1974 which did not incorporate the terms of the

September 19 policy modification. The facts are set forth in

the opinion at 76-77a with the exception of the publication

of change no. 3 in August of 1974.

AR 635-100, the discharge authority, at the time of the

original Selection Boards in question provided that a

Reserve officer could not be released from active duty

unless he had been twice found by Selection Boards to be

“not fully qualified” to assume the duties of the next

higher grade under AR 624-100. (Appendix at 6a). The

Correction Board found that Petitioners were in fact “fully

qualified”. (Appendix at 37, 75a). In 1968 the Secretary -

issued a message “pending revision of AR 624-100 to the

effect that Reserve officers who were twice reported as

non-selected would be relieved from active duty under

635-100.% The definition of “non-selected” was not fun-

damentally different than the “not fully qualified” defini-

tion contained in AR 624-100. The Correction Board and

Court of Claims also relied upon a 1970 message which

again changed the categorization of officers before Selec-

tion Boards but mentioned nothing about these categories

affecting release from active duty. ABCMR Record, Vol.

VII, R-1187. Appendix at 74a.

*“ The message did not indicate its duration; was not

announced as a change to the Regulation but is only a change in

policy. The message did not comply with AR 310-1, AR 310-2 or

AR 310-3 as a change to the Regulation.

* The message actually established 3 categories of officers

before Selection Boards. Selected for promotion; selected for

retention in grade (meaning performance and indicated poten-

tial warrant possible future advancement) and those non-

selected (meaning those officers whose current performance does °

not justify immediate advancement and whose indicated poten-

tial did not clearly sustain the possibility of future advance-

ment). ABCMR Record, Vol. VI, R-978.

Subsequent to these messages,” two changes to AR

635-100 were published which stated that Reserves could

not be discharged from active duty as a result of Selection

Board action unless they failed a second time to be

considered “fully qualified” under AR 624-100, the last of

which was published on January 14, 1975.*° Appendix at

6a.

On May 19, 1975 at 6:00 p.m., the day before the

convening of the 1975 Major Selection Board, and subse-

quent to the filing of an application with the ABCMR by

an officer non-selected in 1974 complaining that there was

no factual finding that he was “not fully qualified” the

Secretary issued an unnumbered change to AR 624-100.

This change, stated that if a Reserve was twice reported by

a Selection Board as not recommended for promotion, he

would be released from active duty. An editorial comment

at the end of the message indicated that the change was

“intended to clarify past and present Department of the

Army policy” and that the wording of the change con-

formed to the “intent behind and practice under” the

previous version. The editorial comment went on to state

that “accordingly failure to be recommended for promotion

both before and after the date of the message counts

toward removal from active duty”. ABCMR Record, Vol.

VII at 1164-1168.

The Court of Claims approved the Correction Board’s

findings that the message was not a retroactive change but

merely “clarified and confirmed a longstanding depart-

mental approved policy that an officer who was not

selected (recommended) for temporary promotion to the

next higher grade would have such non-selection counted

toward separation”.”* The ruling authorizes any depart-

*? Neither message met the requirements of AR 310-1, 310-2,

and 310-3 for changes to regulations.

*® Change 17 published November 7, 1973, 1252 and change

20, published January 14, 1975; Appendix at 5-6a.

* Appendix at 76a.

ment secretary to ignore his own published regulations

and justify his actions by pointing to any longstanding

policy of ignoring the regulations.

Petitioners submit that the Court’s holding is contrary

to this Court’s authority cited above and establishes a

dangerous precedent which can render published depart-

mental regulations meaningless.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the United States

Court of Claims.

Respectfully submitted,

ROBERT MORLEY WRIGHT,

WHITEFORD, TAYLOR, PRESTON,

TRIMBLE & JOHNSTON,

2000 First Maryland Building,

25 South Charles Street,

Baltimore, Maryland 21201,

(301) 752-0987,

KEITH A. ROSENBERG,

NEWRATH, MEYER & FALLzR, P.C.

4400 Jenifer Street, N.W.,

Suite 380,

Washington, D.C. 20015,

(202) 362-1100,

Counsel for Petitioners.

February 25, 1980

APPENDIX

DEPARTMENT OF DEFENSE INSTRUCTION

Subject: Inclusion of Reservists on Boards Considering

Members of Reserve Components under Section 266 of

Title 10, U.S. Code

Reference: (a) DoD directive 1205.4, relative to same

subject, November 26, 1952 (hereby cancelled)

Purpose

To provide basic guidance to the military departments in

carrying out the provision of Section 266 of Title 10, U. S.

Code, requiring inclusion of appropriate numbers of mem-

bers from the reserve components on all boards convened

for the appointment, promotion, demotion, involuntary

release from active duty, discharge, or retirement of

members of the reserve components.

Cancellation

Reference (a) is hereby superseded and cancelled.

Policy

A. All boards convened for the appointment, promotion,

demotion, involuntary release from active duty, discharge,

.or retirement of members of the reserve components shall

be constituted as prescribed by the appropriate Secretary,

and shall include appropriate numbers of members from

the reserve components.

B. The intent of the Congress in this Section is clear,

that a member of a reserve component who is the subject of

any of the indicated board actions shall be assured a fair

representation of reserve membership on the board. The

Secretaries of the military departments will, with due

regard to availability of qualified reservists, pertinent

statutory provisions, the nature of the board action, and

the categories, regular and reserve, which may be consi-

dered by the board, provide in the membership of the

indicated boards, to the fullest practicable extent, a fair

and adequate representation of members from the reserve

components.

Implementing Directives

It is requested that the Assistant Secretary of Defense

(Manpower, Personnel and Reserve) be made an informa-

tion addressee on implementing departmental directives

relating to this policy.

Signature not legible

Assistant Secretary of Defense

(Manpower, Personnel and

Reserve)

AR 624-100

Section I. GENERAL

1. Purpose and scope. This regulation prescribes the

policies and procedures for temporary promotion in the

Army of the United States of commissioned officers and

warrant officers on active duty under the provisions of title

10, United States Code, sections 3442, 3447, and 3449 and

for the promotion of Regular Army officers in their

permanent grades. It does not apply to officers on active

duty for training or with the Selective Service System, to

promotion of Reserve officers in their permanent grades, or

to officers of separate corps holding statutory positions in

those corps.

2. Definitions. a. Active duty. The term “active duty”

when used in this regulation with reference to qualifying

service for promotion refers to full-time duty of 1 day or

more in the active military service of the United States (10

U.S.C. 101 (22)), and full-time duty of 1 day or more

performed under title 32, United States Code, sections

502-505. It does not include drill periods or retirment

Doints.

b. Commanders. For the purpose of this regulation

includes those commanders and heads of Army staff

agencies responsible for maintaining officers’ personnel

records.

c. Basic date. An established date assigned to each

Regular Army commissioned officer which reflect all

service creditable for permanent promotion purposes.

d. Best qualified. Selected from among the fully qual-

ified (e below) and determined by a promotion selection

board to be the best qualified to meet the needs of the

Army.

e. Fully qualified. Considered by a promotion selection

board as qualified professionally and morally, of demons-

trated integrity, and capable of performing the duties

expected of an officer of his branch in the next higher

grade.

f. Not fully qualified. Considered by a promotion selec-

tion board as not qualified to perform the duties or assume

the responsibilities normally expected of the next higher

grade. No such designation is applied to nonselection to

colonel, any promotion list, or to lieutenant colonel, WAC,

ANC, or AMSC.

g. Officer. The term officer(s) includes both commis-

sioned and warrant officers.

h. Passover. The result of being considered “not fully

qualified” for promotion by a promotion selection board.

* x * * * *

Section IV. TEMPORARY PROMOTION OF

OUTSTANDING OFFICERS

22. General. Temporary promotion of outstanding com-

missioned officers from a secondary zone below the prim-

ary zone of consideration is authorized within limitations

outlined below. This policy is designed to give those

commissioned officers who have demonstrated exceptional

ability the opportunity to be considered in advance of their

normal eligibility.

23. Zones. a. Officers may be considered for promotion

under this section to colonel, lieutenant colonel, or major

providing they have completed the following service:

Minimum years

by DOR in next

lower grade (as

of 31 December of

To grade of year of consideration)

EES ER We enero eas AEP DD 1 a NS ee 3Y2

EE: CE ae IIR isos ies sistas ssesinnieindntavarvens 3

b. Selection boards will be instructed that the maximum

number of officers who may be selected from the secondary

zone will not exceed—

Percentage of total

number who may

To grade of be selected

| ge ARORMRI PO yeaee Serpent cies PPR AINE SEN Wl EPPA, pe 10

GEL LEA LISI ATS LE Ti

nn BERT: SS ERD esate Ra ORL OF SED RR AEE TS 5

Example: A selection board selects 2,000 captains for promo-

tion to the temporary grade of major. Of these, not more than

100 may be selected from the secondary zone.

* * * * * *

25. Nonselection. Only a very small number of officers

may be selected for promotion under these provisions.

Consequently, nonselection will not count as a passover

nor reflect against officers in any way.

* 7K mK = ok Oo“

7 November 1973 C 17, AR 635-100

Section XVII. FAILURE OF SELECTION FOR

TEMPORARY PROMOTION

3-65. General. a. Except as indicated below, the follow-

ing officers will be relieved from active duty on the 90th

day after receipt of involuntary release notification unless

voluntary earlier release is requested.

(1) Reserve commissioned officers serving on active duty

as commissioned officers and AUS commissioned officers,

who fail a second time to be considered fully qualified,

under AR 624-100, for promotion to temporary AUS grade

of: captain, major, or lieutenant colonel, provided 9 months

or more elapse between adjournment dates of selection

boards.

(2) Reserve warrant officers serving on active duty as

warrant officers who fail a second time to be considered

fully qualified under AR 624-100, for promotion to tempor-

ary AUS grade of Chief Warrant Officer W-3 or W-4,

provided 9 months or more elapse between adjournment

dates of selection boards.

(3) AUS warrant officers who fail a second time to be

considered fully qualified, under AR 624-100, for promo-

tion to temporary AUS grade of Chief Warrant Officer,

W-3 or W-4, provided 9 months or more elapse between

adjournment dates of selection boards.

b. Officers having 90 days or less remaining to serve on

active duty as reflected by a current service agreement due

to denial or declination of further active duty, and officers

who have been notified of their impending involuntary

release from active duty under any other provisions of law

or regulations, are not subject to this section.

c. An officer eligible for retirement under chapter 4 may

apply for retirement, to be effective not later than the first

day of the month following the month in which release is

directed.

d. Officers who will complete 18 or more years of active

Federal service on their scheduled release date will not be

processed under this section unless such action is approved

by the Secretary of the Army, but will be retained on

active duty until the last day of the month following the

month in which they complete 20 years of active Federal

service.

* * * * * *

14 January 1975 C 20, AR 635-100

Section XVII. FAILURE OF SELECTION FOR

TEMPORARY PROMOTION

3-65. General. a. Except as indicated below, the follow-

ing officers will be relieved from active duty on the 90th

day after receipt of involuntary release notification unless

voluntary earlier release is requested—

(1) Reserve commissioned officers serving on active

duty as commissioned officers and AUS commissioned

officers, who fail a second time to be considered fully

qualified, under AR 624-100, for promotion to temporary

AUS grade of: captain, major, or lieutenant colonel,

provided 9 months or more elapse between adjournment

dates of selection boards.

(2) Reserve warrant officers serving on active duty as

warrant officers who fail a second time to be considered

fully qualified under AR 624-100, for promotion to tempo-

rary AUS grade of Chief Warrant Officer W-3 or W-4,

provided 9 months or more elapse between adjournment

dates of selection boards.

(3) AUS warrant officers who fail a second time to be

considered fully qualified, under AR 624-100, for promo-

tion to temporary AUS grade of Chief Warrant Officer,

W-3 or W-4, provided 9 months or more elapse between

adjournment dates of selection boards.

* (4) Reserve commissioned and warrant officers serv-

ing on active duty in the grade of second lieutenant or

warrant officer, W-1, who fail to be selected for temporary

promotion to first lieutenant or chief warrant officer, W-2,

in the AUS will be released from active duty.

b. Officers having 90 days or less remaining to serve on

active duty as reflected by a current service agreement due

to denial or declination of further active duty, and officers

who have been notified of their impending involuntary

release from active duty under any other provisions of law

or regulations, are not subject to this section.

c. An officer eligible for retirement under chapter 1 may

apply for retirement, to be effective not later than the first

day of the month following the month in which release is

directed.

d. Officers who will complete 18 or more years of active

Federal service on their scheduled release date will not be

processed under this section, unless such action is

approved by the Secretary of the Army, but will be

retained on active duty until the last day of the month

following the month in which they complete 20 years of -

active Federal service.

* * * * * *

DEPARTMENT OF THE ARMY

Army Boarp FOR CoRRECTION OF MiLitary Recorps

Proceedings

IN THE CASE OF: 10 December 1975

LOUIS D. GADDINI, 342-22-2633, et al.*

THEODORE J. KMIECIAK, JR., 202-30-5433, et al

JACOB A. HOPKINS, 188-32-6456, et al

I certify that hereinafter is recorded the true and

complete record of the proceedings of the Army Board for

Correction of Military Records in the case of the above-

named individuals. A quorum was present during the

hearing and deliberation. The following findings, conclu-

sions and recommendations were adopted by the Board.

Applicants request correction of military records as

stated in applications to the Board and restated herein.

The Board convened at the call of the Chairman on the

above date and, following consideration of the case and

having made its determination thereof, proceeded to other

business.

Present:

Mr. Gordon M. Hobbs, Chairman; Mr. Oliver Kennedy,

Member, Mr. Charles R. Woodside, Member, Mr. James C.

Hise, Member, Mr. James L. Stroud, Member, Mr.

Raymond J. Williams, Executive Secretary, Mr. E. E.

Wilmeth, Examiner.

One applicant, Theodore J. Kmieciak, Jr., appeared

before the Board. Applicants Louis D. Gaddini and Jacob

A. Hopkins were unable to appear before the Board. All

applicants were represented by counsel.

The Board considered the following evidence:

Exhibit A — Applications for Correction of military

records with counsel’s brief.

* These applications were designated as lead applications

with the opinion applying to other applications raising the same

issues.

Exhibit B — Military Personnel Records.

Exhibit C — Case Summaries with RED TABS A

through G. .

Exhibit D — Transcript of Hearing.

Exhibit E — Exhibits A through J submitted by

counsel at Hearing.

Exhibit F — Additional Exhibits K through M

submitted by Office of the Judge Advocate General.

Exhibit G — Counsel’s additional Exhibit N.

Exhibit H — Depositions of 12 Selection Board

members.

The Board Finds:

1. That the applicants have exhausted all administra-

tive remedies afforded by existing law or regulations.

2. That it incorporates in these proceedings and adopts

by reference thereto so much of the Exhibits above, as

pertains to the factual showing of the Department of the

Army records which generally reflect:

a. that the applicants request in substance correction of

their military records to show them;

(1) either promoted to the next higher temporary

grade or entitled to reconsideration for promotion to

the next higher temporary grade;

(2) restored to active duty, as applicable, without

loss of active duty commissioned service and basic pay

and allowances;

(3) such other relief as may be deemed necessary

and appropriate; and that at the hearing counsel for

the applicants modified their requests to the effect

that the applicants either be reconsidered for promo--

tion through additional specially convened boards or

call them back to active duty, negate their termina-

tion orders on the grounds that the passovers were

invalidly issued, and place them in the normal cycle

for promotion consideration by the next regularly

scheduled selection boards;

10a

b. that the military records of the applicants reflect in

general and in pertinent part that they were born during

the period 1921 and 1943; that they were either appointed

as commissioned officers or warrant officers of the United

States Army Reserve (USAR) for an indefinite term; that

they either were voluntarily ordered to and entered on

their current tours of active duty for an indefinite period of

time, or that they were initially ordered to and entered on

active duty voluntarily under a two or three year obligated

tours of duty after which their tours of active duty were

voluntarily extended for an indefinite period; and that

they understood that they may be released from active

duty for any one of the following reasons:

(1) Voluntary requested in accordance with applic-

able regulations;

(2) Forced reduction in Army strength;

(3) Promotion passover as prescribed in applicable

regulations;

(4) Failure to meet acceptable standards of efficien-

cy or conduct;

(5) Completion of the maximum Reserve commis-

sioned service or attainment of the maximum age,

whichever occurs first, as prescribed in applicable

regulations;

_ (6) Completion of a specified period of active Feder-

al service (20 years) or attainment of the maximum

age in the cases of warrant officers.

c. that through temporary promotions in the Army of

the United States (AUS) they attained the temporary

grades of Major, Captain, or Chief Warrant Officer (W-2)

and (W-3);

d. that in the class group of Kmieciak-et al, the

applicants military records along with those of other

eligible captains were referred to Army Selection Boards

which convened on 30 January 1974 and 19 February 1974

for consideration for promotion to the grade of Major, AUS,

under approved Letters of Instructions; that at some point

in February 1974 the then Secretary of the Army (Howard

lla

H. Callaway) directed that a new board be convened since

in his judgement the January 1974 Selection Board did not

comply with the intent of his original guidance, even

though the board complied with the literal language of the

guidance; that consequently under new Letters of Instruc-

tions the applicants were referred for consideration for

promotion to the temporary grade of major, AUS, by

Department of the Army-(DA) Promotion Selection Boards

which convened on 2 April 1974 and 15 April 1974 under

the “best qualified” method of selection within the primary

zone of selection; and that they were not recommended for

promotion by these selection boards;

e. that in the class group cases of Gaddini-et al and

Hopkins-et al, the applicants were considered and not

recommended for promotion to the temporary grades of

Lieutenant Colonel and Chief Warrant Officer (W-3) or

(W-4), as appropriate, under the “best qualified” method of

selection by DA Promotion Selection Boards which con-

vened in January and March 1974; and that the selection

boards concerned operated under approved Letters of

Instructions and guidance furnished;

f. that all of the applicants were again considered for

temporary promotion to the next higher grade under the

“best qualified” method of selection within the primary

zone of selection by appropriate DA Promotion Selection

Boards which convened in January, March, April, and

May 1975 under approved Letters of Instructions and

guidance furnished; and that they were not recommended

for promotion by these selection boards;

g. that in 1974 all of the applicants were notified in

pertinent part that as a result of the 1974 DA Promotion

Selection Boards they were among those officers con-

sidered but not selected, and that their nonselections

constituted a passover for promotion as defined in Army

Regulation (AR) 624-100; that in 1975 they were notified

in pertinent part that as a result of the DA Promotion

Selection Boards of 1975 they were not best qualified for

promotion to the next higher grade; that since this

12a

determination constituted their second nonselection for

promotion, DA policy as specified in Section XVII, Chapter

3, AR 635-100 required their release from active duty on

the 90th day after receipt of the notification; and that all

applicants except three were scheduled for release from

active duty during the months of October through Decem-

ber 1975 and January 1976 after having completed

between over 6 years and 10 months and 17 years and 11

months active Federal service. The three excepted appli-

cants had completed over 18 years active Federal service

and since they were within two years of becoming eligible

for retirement under law, they were not scheduled for

release from active duty;

h. that on 24 September 1975 and 28 October 1975

counsel for the applicants submitted applications in behalf

of the applicants along with his Brief and raised the

following points of issue:

(1) that the Secretary of the Army’s action in voiding

the selection boards action in the first 1974 Captain to

Major, AUS, selections was unlawful;

(2) that the percentage of selections directed from

the secondary zone by the Secretary of the Army was

unlawful;

(3) that the Secretary’s action in directing the reser-

vation of a designated number of promotions from the

secondary zone was unlawful;

(4) that the Secretary’s instructions to the selection

boards constituted a directive to the boards to consid-

er youth as a primary asset in the primary zone as

well as the secondary zone;

(5) that the 19 May 1975 messages amending AR

624-100 and AR 635-100 are not applicable to the

applicants; and

(6) that the apparent lack of any Reserve member-

ship on any of the selection boards involved was

contrary to 10 U.S.C. 266 and DOD Instruction

#1205.4, dated 23 June 1959.

13a

i. that on 6 November 1975 The Deputy Chief of Staff

for Personnel (DCSPER) submitted a detailed report with

nine inclosures to this Board, as requested, relative to the

first five points of issue and stated pertinently:

(1) that the requests of the applicants are without

justification;

(2) that the actions taken by the Department of the

Army, in all respects, were according to regulations

and established procedure;

(3) that withdrawal of their notifications of release

from active duty would be without basis. The fact that

the applicants are Reserve officers twice “not recom-

mended for promotion” by duly constituted promotion

boards required their release by regulation, accepted

procedure, announced policies, common knowledge,

and based on the lony established principle of align-

ing the temporary promotion system and involuntary

separation/retirement policies with the statutory pro-

visions of the permanent (RA) promotion system;

(4) that removal from their records that they were

“twice not recommended” for promotion would belie the

fact that they were so categorized by two duly

constituted promotion boards and would be unfair to

other officers similarly categorized for many decades;

(5) that applicants have not been selected for promo-

tion by a promotion board; therefore their promotions

are not justified or warranted and would be grossly

unfair to others similarly situated over many years.

Since the board did not determined that they were

amongst the “best qualified”, their promotions to the

higher grade would not be in the best interest of the

United States Army or the United States Govern-

ment;

(6) that prior board proceedings were not defective;

therefore, reconsideration by the next Selection

Board, with that Board being instructed as applicants

request is not justified;

(7) that based on approved regulations and adherence

to long standing established policies and procedures,

l4a

the DA Office of the Deputy Chief of Staff for

Personnel is of the opinion and takes the firm position

that the applicants have been afforded all rights to

which entitled and all actions taken concerning their

consideration for promotion and involuntary separa-

tion were in accordance with decisions made by the

Secretary of the Army or delegated to his subordin-

ates; hence, in accordance with regulations; and

(8) that further details and amplification regarding

the Army Staff position and its rationale in the

matter were contained in Inclosures Number 1

through 9 of their report.

j. that on 6 November 1975 The Assistant Judge

Advocate General for Civil Law concurrently submitted

the Army Brief in Opposition to the Applications as

Inclosure Number 10 to the detailed report referred to

above relative to the common issues of law and fact raised

by the applicants and counsel on the first five points of

issue. It was concluded:

(1) that the Secretary of the Army is not bound to

accept the recommendations of a promotion selection

board;

(2) that the Secretary of the Army personally deter-

mined that acceptance of the recommendations of the

January 1974 promotion selection board (Captain to

Major) would not be in the best interest of the Army;

(3) that Section IV, AR 624-100 pertaining to second-

ary zone selection rates was effectively changed in

1972 by electrical message and has been followed;

(4) that the Secretary of the Army did not direct the

reservation of a designated number of promotions to

secondary zone officers;

(5) that the temporary (AUS) promotion system im-

plemented by the Secretary gave due regard to

seniority and age;

(6) that promotion selection boards were not directed

to reserve a designated percentage of promotion

recommendations to secondary zone officers;

15a

(7) that instructions and guidance given the selection

boards in question were fair and equitable;

(8) that promotion selection boards were not directed

to consider youth as a primary asset for selection in

the primary zone;

(9) that the 19 May 1975 amendments to AR 624-100

and AR 635-100 do not deprive the applicants of

property without due process of law;

(10) that the applicants have neither a property nor a

liberty interest affected by the 19 May 1975 amend-

ments;

(11) that the May 1975 amendments do not operate

retroactively and were intended to clarify past and

present Army policy and practice; and

(12) that there has been no legal error and the

applicants have suffered no injustice.

k. that on 18 November 1975 counsel for the applicants

submitted his response to the Army’s staff and legal

positions relative to first five points of issue raised by him

and the applicants. In essence it was contended pertinently

that the Secretary is bound to accept the selection board’s

recommendation under the circumstances in the matter;

that AR 624-100 was not changed by any of the referenced

policy messages; that the May 1975 Department of the

Army message amendments do not clarify basic policy and

practice; that the Secretary did in fact direct the reserva-

tion of a designated number of promotions to secondary

zone officers; that with respect to the retroactivity of the

May 1975 Department of the Army message amendments,

the applicants point out that for a substantial period of

time officers had been led to believe that they would be

retained in service as long as their performance was such

as to indicate that they were qualified to assume the

duties of the next higher grade; that the radical change

attempted by the Secretary cannot be explained away by

arguments contending that the May 1975 Department of

the Army messages simply drew on antecedent facts and

therefore was not retroactive; and that there is nothing

l6a

within the context of cited statutes to suggest that the

Secretary was authorized to issue anything except prospec-

tive regulations insofar as those regulations relate to

promotion actions.

1. that cn 26 November 1975 The Deputy Chief of Staff

for Personnel (DCSPER) submitted its response to Coun-

sel’s rebuttal to the Army staff and legal positions. In

essence, DCSPER sustained the Army staff's position as

presented on 6 November 1975, notwithstanding counsel’s

rebuttal thereto;

m. that on 2 December 1975 the DCSPER responded to

the issue raised by the applicants and counsel relative to

the apparent lack of any Reserve member on any of the

Selection Boards involved. In essence, DCSPER agreed

and emphasized that 10 U.S.C. 266 prescribed an appropri-

ate number of Reserves, as prescribed by the Secretary

concerned; that DOD Instruction 1205.4 established the

policy that ... boards ... shall be constituted as

prescribed by the appropriate Secretary and shall include

appropriate number of members from the Reserve compo-

nents; and that AR 624-100 prescribed . . . boards will,

where practicable, include at least one officer of the

Reserve components. However, it was stated pertinently

that DA personnel staff officers considered the foregoing

adequately permissive to allow for appropriate and practic-

al flexibility in the process of selecting potential nominees

and nominating them as board members;

n. that at the hearing counsel for the applicants called

three witnesses who testified before the Board and pre-

sented certain statistical data, charts, and other informa-

tion pertaining to the Reserve membership requirements

of 10 U.S.C. 266, the availability of Reservists to sit as

members of AUS Promotion Boards, and the correlation

between age and selection/nonselection, among RA officers

and Reserve officers; that he restated the points of issue as

‘setforth in his original brief and covered in subparagraph

2h above, giving particular emphasis to the last issue to

which Major General James Milnor Roberts, Jr., testified

17a

relating to the requirements of 10 U.S.C. 266 wherein

“each board convened for the appointment, promotion,

demotion, involuntary release from active duty, etc., of

Reserves shall include an appropriate number of Reserves

as prescribed by the Secretary concerned under standards

and procedures established by the Secretary of Defense”.

Counsel felt that the intention behind that statute clearly

was that the number that shall be included on the boards

was a matter of Secretarial discretion; that the statute did

not state that a board had to have a majority of Reserves;

that the law did not say that 10 percent of the membership

had to be Reserves; that it just stated that an appropriate

number shall be include on each board with discretionary

power being left to the Secretaries of the services to decide

what an appropriate number is; and that the position of

the applicants and himself was that “zero” could not be an

appropriate number because the statute would have no

meaning whatsoever. With respect to the first issue

regarding the Secretary’s action in voiding the first 1974

captain to major Selection Board’s action, Counsel stated

pertinently that once the Secretary makes regulations, he

must follow them scrupulously as the Courts have said;

that AR 624-100 specifies the circumstances under which

officers can be taken off of a board recommended list and

that the board action is administratively final; and that he

submitted that when AR 624-100 was written and prom-

ulgated, the Secretary had stripped himself of discretion in

the matter and no longer had discretionary authority after

promulgation of AR 624-100 to not accept a promotion

board’s entire recommended list. In this connection, coun-

sel submitted an exhibit relative to the correspondence

between Secretary Callaway and Senator Thurmond to the

effect that it was recalled that Captain Norris N. Lowe

was one of four officers who have been selected by the first

1974 captain to majors’ AUS Selection Board. Subsequent-

ly, Captain Lowe was not selected by the new 1974 captain

to majors’ AUS Selection Board which the Secretary

convened.

| a RMT EE ee eT

18a

At this point of the hearing former Secretary of the

Army (Howard H. Callaway) appeared before the Board as

a witness and referred to his affidavit of 24 October 1975.

He stated to the effect that in the wind-down of the

Vietnam war, Secretary Froehlke who preceded him made

the announcement that 15 percent of the list for promotion

from captain to major was to go below the primary zone;

that it was to give those officers who were particularly

outstanding some kind of opportunity to advance more

rapidly; that he publicly endorsed that statement in-

asmuch as it was well understood and well accepted; that

when the captain to majors’ promction board was in the

planning, the DCSPER went over the whole situation with

him and brought up the question of the 15 percent because

there had not been a promotion board to major for five

years; that there were a great many well-qualified cap-

tains, who in the opinion of the DCSPER were entitled to

promotion to major and that if 15 percent were allowed to

be taken away from the captains who were entitled to

promotion to majors, such action would take away promo-

tions from good captains; that however he saw just as

clearly that there were a lot of officers in the secondary

zone, outstanding officers who had under a promise of the

then Secretary of the Army to which he was also

committed and with whom he did not want to break faith;

that after working with the problem for a good bit of time

in coordination with his staff, he decided to go to a

13-month promotion list before the next promotion board;

that by doing this the Department was able to hold to the

60 percent which was all that was ever recommended,

while at the same time they were also able to hold to the

15 percent for below the primary zone; that therefore he

issued instructions to the promotion board and was

assured his instructions were clear as to his intent; that

subsequently it was brought to his attention that the

promotion board was about ready to come up with

recommendations, but was not quite there in so far as

coming up with 15 percent; that to the best of his

19a

recollection the promotion board had come up with approx-

imately 8 percent; that shortly thereafter he talked at

length with the President of the board about the procedure

utilized and was not pleased because it was very mechani-

cal; that as result he caused to be brought in to him

roughly eight officer files at the bottom of the primary

zone and 8 files of officers nonselected in the secondary

zone; that after personally looking at all the files, the

officers’ files below the primary zone were clearly superior

to the other files; that to confirm his opinion, he mixed the

files up without regard to primary zone and secondary

zone and had them evaluated independently by three

officers who had much experience and were superior

officers in the Army; that they came back with their

individual evaluations and in every case every below-the-

zone officer was selected over the primary zone officers;

that the gap in quality between the two groups was

enormous; that prior to acting he checked with General

Abrams who conducted his own independent investigation;

that three days later General Abrams returned incensed

and stated that the Secretary’s intent which was well

known had not been acted upon and was violated; that

while he did not believe that the board members had any

conspiracy to violate his intent, General Abrams suggested

that a new board be convened; that accordingly a new

board was called back and instructions were changed to

make it crystal clear what his intent was; that no

recommended list was formally submitted by the first

captain to majors selection board of 1974; that no other

files were personally reviewed by him other than the 16

files mentioned earlier; that he was never advised until

recently of any requirement to have at least one Reserve

officer sitting on a promotion board panel; and that had he

been aware of this fact and the provisions of Title 10

U.S.C. requiring the inclusion of appropriate number of

reserve officers, he would have contacted his Judge

Advocate General and General Counsel for an interpreta-

tion, and if in their interpretation the law required that,

he would have done it.

20a

With regard to the issue concerning the May 1975

message amendments to AR 624-100 and AR 635-100,

counsel presented as Exhibit J a written outline of

historical circumstances concerning changes, revisions,

and messages to AR 624-100. It was pointed out in essence

that there were three numbered changes to AR 624-100

which failed to incorporate numerous message revisions to

the regulation which had been issued prior to the num-

bered changes; that the messages contained in part

changes in promotion policy and on certain occasions such

changes were buried at the end of the messages; that in

addition certain message announcements contained policy

statements concerning elimination of promotion categories

pertaining to promotion of a particular group of officers,

but apparently the Army applied such changes to other

groups of officers and warrant officers without appropriate

change in the regulation; that as an example the 1975

message amendments to AR 624-100 and AR 635-100

contained provisions at the end indicating retroactive

provisions regarding nonselection by prior selection

boards; that such action amounted to changing the rules of

the game; that while the Army feels that the 1975

amendments were not retroactive, it seemed clear to the

applicants and counsel that these particular amendments

were not a retroactive regulation at all because of the

existence of prior messages; and that however, the amend-

ments did, in fact, change the rules which were in effect

prior to May 1975, whether or not credence was given to

these messages as being validly in effect after the actual

changes to the regulation were issued.

With respect to the feelings of the applicants relative to

the age discrimination problem, the depositions rendered

by a fair number of selection board members reveal that

all of the officers who testified denied that chronological

age or Reserve component made any difference in their

deliberations; that however, he believed that the testi-

mony of Mr. Callaway was such that it could be fairly

assumed that relative to the 15 percent secondary zone,

there was very little discretion left, if any, for the selection

2la

boards to come back with anything less than a full 15

percent; and that it was a very odd situation as to how the

statistics came out on the selection boards and how they

seem to be influenced to some extent by actions outside of

the boards.

In Conclusion, counsel stated in substance that discrimi-

nation is always an insideous sort of thing; that it arises

also relative to the problem of wrestling with 10 U.S.C.

266; that from Mr. Callaway’s testimony it is obvious that

nobody ever thought of the requirement of Reserve officers

on the board; and that he submitted that after all this

controversy was over and done with, there will be Reserve

officers sitting on future selection boards.

Inasmuch as the Judge Advocate General’s Office had

not presented the Army’s staff legal brief on the 10 U.S.C.

266 issue, permission with counsel’s concurrence was

granted The Judge Advocate General’s Office to present an

oral brief at the hearing, provided a written brief was

submitted to the Board as soon as possible after the

hearing and provided counsel was afforded an opportunity

to submit any comments thereto for consideration of this

particular matter. Counsel stated that otherwise, he was

satisfied that the record was full and complete. During the

hearing counsel submitted to the Board Exhibits “A”

through “J” in further support of applicants contentions

relative to the issues raised in this entire matter.

o. that on 11 December and 16 December 1975 in

response to the Board’s request at the conclusion of the

hearing in the matter, The Judge Advocate General’s

Office submitted a legal opinion and a brief in opposition

to the applications for relief on the grounds of 10 U.S.C.

266. It was opined that Section 266 provides that the

boards convened for the purposes indicated therein shall.

include “appropriate numbers” from the Reserve compo-

nents; that the legislative history of this provision dis-

closes that the term “appropriate numbers,” rather than a

minimum number or fixed ratio, was employed by the

Congress to cover situations where the same board was

22a

used to consider both Regular and Reserve personnel; that

in such cases, it was believed that the proportion of

Reserve members on the board should be roughly equal to

the proportion of Reserves being considered, but Congress

also recognized that Reserve participation would not be

possible in all instances, such as where no Reserve officer

was senior in rank to the Reserve officers being consi-

dered; that in an effort to provide reasonable flexibility,

the provision was written so as to allow Reserve represen-

tation on boards to be established by regulation of “the

appropriate Secretary in accordance with standards and

policies established by the Secretary of Defense,” that

subsection III.B, Department of Defense Instruction

1205.4, 23 June 1959, prescribes that “[t]he Secretaries of

the military departments will, with due regard to availa-

bility of qualified reservists, pertinent statutory provi-

sions, the nature of the board action, and the categories,

regular and reserve which may be considered by the board,

provide in the membership of the indicated boards, to the

fullest practicable extent, a fair and adequate representa-

tion of members from the reserve components;” that

paragraph 166(5), Army Regulation 624-100, 29 July 1966,

as changed, currently implements the foregoing statutory

and regulatory authorities and provides that “[w]henever

a zone of consideration includes nonregular officers, selec-

tion boards will, where practicable, include at least one

officer of the Reserve components;” that these regulatory

provisions, being in implementation of statute, are manda-

tory and may not be waived; that therefore, where

selection boards of the type noted above have been, or are

conducted without Reserve component representation, it is

the opinion that the Army bears the burden of establishing

either that (1) no Reserve officer was qualified for service,

or (2) no qualified Reserve officer was reasonably available

for service; that implicit in the first determination is the

additional requirement that the Army demonstrate that

the criteria establishing qualifications for service on a

selection board are reasonable and do not operate inten-

tionally and systematically to exclude Reserve officers

from qualifying for service; and that should the Army be

23a

able to establish either (1) or (2), i.e., no Reserve officers

qualified or no qualified Reserve officer reasonably avail-

able, it is the further opinion that such a selection board

would be lawfully constituted.

In furtherance to the foregoing legal opinion The Judge

Advocate General’s Office stated pertinently that the

Secretary of Defense has set forth his policies and

standards in DOD Instruction 1205.4 and Army Regula-

tion 624-100 provides for the inclusion of at least one

reserve member on the concerned promotion boards where

practicable. The boards under consideration by the Army

Board for Correction of Military Records in this matter did

not have Reserve membership. In late 1967 two decisions

were made by Headquarters Department of the Army,

which may have affected Reserve membership on promo-

tion selection boards. One decision was that, due to a

critical shortage of funds, temporary duty (TDY) funds

would not be available for brining officers to Washington,

D.C., to sit on promotion boards. Previously board mem-

bers were selected from throughout the Army in order to

get wide representation. Restricting board membership to

residents of the Washington, D.C., area would have

effectively put a geographical/quantitative limitation on

those officers eligible for board membership. The decision

was also made to upgrade substantially the qualitative

standards for board membership. Such a combination of

qualitative and quantitative restrictions would have sub-

stantially reduced the pool of eligible and available

reservists. Because of this reduced eligibility, few, if any,

would have ever been identified for nomination. It should

be made clear that nothing in the Army staff's investiga-

tion has revealed any decision or other action to leave

Reserve officers off promotion boards with a malicious

intent. Even if there had been a recognition of a statutory

or regulatory preference for such membership which was

overborne by fiscal consideration in 1967, as there appears

there may have been, nothing has come to light which in

any fashion shows that the decision was in any way meant

to harm the promotion chances of Reserve personnel.

24a

Viewing the situation in light most favorable to appli-

cants, the facts do not justify relief. Even assuming that

there was a conscious decision to leave Reserves off the

boards due to fiscal constraints and further assuming that

such decision resulted in a failure to specifically seek out

Washington Area Reserves for promotion board duty, no

Reserve officer can show specific prejudice to his opportun-

ity for promotion. Indeed, the facts clearly militate strong-

ly to the contrary. The depositions of a number of members

of the promotion boards shows that the officers who sat on

the boards did not favor Regulars over Reserves and, being

aware that nonselected reservists would be required to

leave active duty, often gave reservists the benefit of the

doubt. It is also plain that each board has a reservoir of

Reserve experience due to the careers of the officers

making up the boards. Thus, it could hardly be argued

that the boards were incapable of accurately judging the

file of any particular reserve officer. Accordingly, it is

apparent that even if error existed in the composition of

the promotion boards, it was harmless error upon which no

relief should be predicted; and

p. That on 19 December 1975 counsel submitted appli-

cants memorandum in opposition to the Army staff

submission and legal brief on Title 10, U.S.C. Section 266

which is marked as Exhibit “N” to these proceedings. In

essence counsel cited the pertinent provisions of 10 U.S.C.

266 and DOD Directive 1205.4 implementing the statute,

and contended that the statute and the DOD Directive

required a fair and adequate Reserve representation on

temporary Selection Boards convened pursuant to 10

U.S.C. 3442 and AR 624-100; that the defect in the

composition of the 1974-1975 Selection Boards was juris-

dictional and therefore their action is void; and that the

“harmless error” theory is not applicable to the applicant’s

case. Numerous Federal court decisions were cited as

references in support of the applicants contentions.

3. That Article II, Section 2, Clause 2 of the Constitu-

tion of the United States provides that the temporary

appointments of commissioned officers in the RA shall be

25a

made by the President alone in grades below Lieutenant

Colonel and by the President, by and with the advice and

consent of the Senate, in grades of Lieutenant Colonel and

above.

4. That Title 10, U.S.C., Section 3012, provides, in

pertinent part, that the Secretary of the Army, who is

head of the DA, is responsible for and has the authority

necessary to conduct all affairs of the Department of the

Army; that he shall perform such other duties relating to

Army affairs, and conduct the business of the Department

in such manner, as the President or the Secretary of

Defense may prescribe; and that he may prescribe regula-

tions to carry out his functions, powers, and duties under

this title.

5. That Title 10, U.S.C., Section 3442(c), provides, in

pertinent part, that under regulations to be prescribed by

the Secretary, appointments made under this subsection

shall be made on a fair and equitable basis; and that

selections shall be based upon ability and efficiency with

regard being given to seniority and age.

6. That Title 10, U.S.C., Section 3297(d) provides that

except as otherwise provided by law, promotion list officers

and brigadier generals of the RA may be promoted to the

regular grades of captain through major general only

when recommended by a selection board; that a recommen-

dation for promotion must be made by the majority of the

total membership of the board; and that notwithstanding

any other provision of law, a board that is to recommend

officers for promotion whom it considers to be best

qualified may recommend only those officers whom it also

considers to be fully qualified.

7. That Title 10, U.S.C., Sections 3300 (a)(b)(c) provides

pertinently that when promotion-list officers in the regu-

lar grade of first lieutenant, captain, or major are to be

considered, under section 3299 of this title, by a selection

board for promotion to the next higher regular grade to fill

existing or anticipated vacancies, the Secretary of the

Army may direct the board to consider officers in the

26a

specified grade in the order of their seniority on the

promotion list concerned, recommend those who are fully

qualified for promotion, pass over those not so qualified,

and continue this procedure until the number of officers

specified by him is recommended; that when a promotion-

list officer in the regular grade of first lieutenant, captain,

or major must be considered under section 3299 of this

title for promotion because of length of service, or because

he is on a promotion list above an officer who must be

considered for that reason, the Secretary m#y furnish the

board a list of officers to be considered for promotion to the

grade concerned, and direct the board to recommend the

officers on that list whom it considers fully qualified for

promotion; that instead of the procedures set forth in

subsection (a) or (b), the Secretary may furnish to the

board a list of promotion-list officers to be considered and

may direct it to recommend a number specified by him for

promotion; that the board shall recommend those officers

whom it considers to be best qualified; and that however

the number prescribed by the Secretary for the recommen-

dation must be at least 80 percent of those listed for

consideration for the first time.

8. That title 10, U.S.C., Section 3362, provides, in

pertinent part, that the Secretary of the Army, or such

authority as he directs, shall convene selection boards to

consider reserve commissioned officers under this chapter;

that each board shall be composed of at least five members

who are senior in regular or reserve grade to, and who

outrank, any officer considered by the board; that so far as

practicable, at least one-half of the members of the board

must be reserve officers; that a recommendation for

promotion must be made by the majority of the total

membership of the board; and that the Secretary of the

Army shall prescribe regulations to carry out this chapter.

9. That Title 10, U.S.C., Section 3447, provides that the

appointment of a person under sections 3442, 3444, and

3445 of this title shall be made without reference to any:

other appointment that he may hold in the Army; that

temporary appointments of commissioned officers in the

27a

Army shall be made by the President alone in grades

below brigadier general, and by the President, by and with

the advice and consent of the Senate, in general officer

grades; and that the President may vacate at any time a

temporary appointment in a commissioned grade.

10. That Title 10, U.S.C., Section 3449, provides that

temporary promotions in warrant officer grades shall be

governed by such regulations as the Secretary of the Army

may prescribe.

11. That Title 10, U.S.C., Section 266 (a) provides that

each board convened for the appointment, promotion,

demotion, involuntary release from active duty, discharge,

or retirement of Reserves shall include an appropriate

number of Reserves, as prescribed by the Secretary

concerned under standards and policies prescribed by the

Secretary of Defense. (Examiner’s Note: Under Index to

Notes to this Section, Note Number 3 provides that all

boards convened for appointment, promotion, release from

duty, etc., shall include an “appropriate” number from the

reserve components as prescribed by the appropriate

Secretary in accordance with standards and policies estab-

lished by the Secretary of Defense, does not require that

any particular number or that a majority of the voting

members of such boards be Reserve officers but leaves the

matter to administrative discretion.)

12. That Title 10, U.S.C., Section 681(a), provides that

except as otherwise provided in this Title, the Secretary

concerned may at any time release a Reserve under his

jurisdiction from active duty.

13. That Subsection III, DOD Instruction 1205.4, dated

23 June 1959, in implementation of Title 10, U.S.C.,

Section 266(a), provides that all boards convened for the.

appointment, promotion, demotion, involuntary release

from active duty, discharge, or retirement of members of

the reserve components shall be constituted as prescribed

by the appropriate Secretary, and shall include appropri-

ate numbers of members from the reserve components;

that the intent of the Congress in this Section is clear, that

28a

a member of a reserve component who is the subject of any

of the indicated board actions shall be assured a fair

representation of reserve meinbership on the board; that

the Secretaries of the military departments will, with due

regard to availability of qualified reservists, pertinent

statutory provisions, the nature of the board action, and

the categories, regular and reserve, which may be consi-

dered by the board, provide in the membership of the

indicated boards, to the fullest practicable extent, a fair

and adequate representation of members from the Reserve

components.

14. That Army Regulation 624-100, dated 29 July 1966,

which prescribed the policies and procedures for temporary

promotion in the Army of the United States of commis-

sioned and warrant officers on active duty provided, in

pertinent part, that whenever a zone of consideration

includes nonregular officers, selection boards would, where

practicable, include at least one officer of the Reserve

components; that promotion selection boards would base

their selections on impartial consideration of all officers in

the zone; that they would consider all factors, including

ability, efficiency, seniority, and age; that the selection

boards would use the “best qualified” method of selection

for promotion to major through colonel (except for tempor-

ary promotion of medical and dental corps officers to major

and lieutenant colonel), and to chief warrant officer, W-4

and chief warrant officer, W-3; that under this method,

selection boards recommend not to exceed a specified

number of officers whom they considered the best qualified

to meet the needs of the Army of all fully qualified officers

in the zone of consideration; that selection board action is

administratively final, and that reconsideration for promo-

tion would be afforded only in those cases where material

error was present in the records of an officer when

reviewed by a selection board; that the records of any

officer within the primary zone of consideration for

temporary promotion to any grade who was considered

“not fully qualified” by a DA promotion seiection board

would be reviewed by Headquarters, DA; that this review

29a

would determine whether or not he should be relieved

from active duty or elirsinated from the Army; that all

nonregular officers considered for temporary promotion to

lieutenant colonel, major or captain, or a warrant officer

grade, who twice were reported by selection boards as “not

fully qualified” (passed over) for temporary promotion to

the same grade would be relieved from active duty,

provided nine months or more elapsed between adjourn-

ment dates of selection boards; and that the Army’s

Promotion system was designed to meet the Army’s

requirements for commissioned officers in the various

commissioned grades to maintain the integrity of the

promotion system by providing for fair and equitable

advancement of officers throughout a full career in the

Army, giving early advancement opportunity to the

proven outstanding officers and eliminating the substan-

dard or marginal officers as early in the career pattern as

feasible; and to provide a proper promotion flow through

the various grades to insure energetic, highly motivated

officer corps and a high retention rate among the top

quality officers.

15. That DA Message 876007, dated 14 August 1968,

Subject: Temporary Promotion to Major and Lieutenant

Colonel, provided, in pertinent part, that pending revision

of AR 624-100 (Examiner’s Note: This message was not

published as a numbered change.) three categories would

be utilized in the selection process to temporary major and

lieutenant colonel, and were effective with the selection

boards then in session; that those officers recommended for

promotion would be in the category of “selected for

promotion”; that those officers whose relative standing

among their contemporaries did not warrant promotion at

that time but whose present performance and indicated

potential warrant possible future advancement would be -

in the category “selected for retention in grade”; that those

officers whose current performance did not justify immedi-

ate advancement and whose indicated potential did not

clearly sustain possibility of future advancement would be

in the category “not selected”; that all nonr egular officers

30a

considered for temporary promotion to major or lieutenant

colonel who twice were reported by selection boards as “not

selected” for tentporary promotion to the same grade would

be relieved from active duty, provided nine months or

more elapsed between adjournment of the’ respective

selection boards which reported an individual “not

selected”; and that it was requested widest dissemination

of the foregoing change in policy to all officers.

16. That DA Message 960029, dated July 1970, Subject:

Temporary Promotion to Major, Lieutenant Colonel, Chief

Warrant Officer CW3 and CW4, provided, in pertinent

part, that pending revision of AR 624-100 (Examiner’s

Note: This message was not published as a numbered

change.) the selection for retention in grade category was

reviewed for officers whose records clearly indicate the

possibility for future advancement; that in the judgment of

the board this presumes that these officers have the

potential to develop so that selection for promotion should

occur at the subsequent board; that those officers who have

been selected for retention in grade for the previous

designation of fully qualified — not recommended or not

selected for promotion by a previous selection board

considering them for promotion to the same grade would

be categorized as “selected for promotion” or “not selected

for promotion”; that this policy was effective 1 July 1970;

and that it was requested widest dissemination of this

change in policy.

17. That DA Message 202000Z September 1972, Sub-

ject: Revision to the Officer Secondary Zone Promotion

System, provided, in pertinent part, that the Secretary of

the Army had recently approved policy modifications

pertaining to the secondary zone promotion of officers to

the temporary grades of colonel, lieutenant colonel, major,

chief warrant officer CW4 and CW3; that there continued

to be no provision for secondary zone promotion to the

grade of captain; that these modifications affected the

secondary zones of eligibility, the allowable secondary zone

selection rate, and the procedures utilized in secondary

3la

zone selections; that the policy modifications were effective

immediately and had been applied to the 1972 lieutenant

colonel and colonel promotion boards; that as a general

rule, secondary zone of consideration would include all

officers who were two years junior in total active Federal

commissioned service to the junior-ranking normal course

officers in the primary zone of consideration; that the

opportunity for selection from the secondary zone would be

increased to ail grades under consideration; that the total

number of officers selected for promotion however, would

not be increased under the revised system; that the

percentage of the total promotion quota that could be

selected from the below the zone for colonel, lieutenant

colonel and major would be 15 percent and for chief officer

W-4 and W-3 would be 7.5 percent; that a screening board,

convened at the DA would evaluate all records in the

announced secondary zone of consideration; that the board

would be tasked to identify the officers who clearly surpass

their contemporaries in potential and in breadth and depth

of experience; that the board would identify a minimum of

150 percent and a maximum of 200 percent of the number

authorized secondary zone selections for a grade; that

concurrently, the Chief, Office of Personnel Operatioris.

would be tasked to evaluate all records in the secondary

zone that his agency determined had the qualifications

outlined above; that the files of those identified would be

further evaluated by the selection board for the particular

grade; that the selection board could recommend for early

promotion officers (within prescribed quota) determined to

have the record, qualities and characteristics that identify

them as “outstanding” and who clearly surpass their

contemporaries and seniors in potential and breadth and

depth of experience; and that every effort would be made

by DA to insure that year groups have an equal number of

opportunities (two or more) for secondary zone selection

and to provide for predictable career progression.

18. That DA Message Date Time Group 191753Z May

1975, Subject: Change of AR 624-100, Promotion of

Officers on Active Duty, provided in pertinent part, that

32a

pending final publication of revised AR 624-100, Promo-

tion of Officers on active duty, dated 29 July 1966, Section

VII was changed to reflect that the records of any officer °

within a primary zone of consideration for temporary

promotion to any grade was considered but not recom-

mended for promotion by a DA selection board would be

reviewed by Headquarters, DA; that this review would

determine whether or not he should be eliminated from

the Army under the provisions of Chapter 5, AR 635-100

and was in addition to the action described in paragraph

36; that appropriate action would be taken under the

provisions of Section XVII, Chapter 3, AR 635-100, when

an officer of the Reserve components who was considered

for temporary promotion in the AUS to the grades of

lieutenant colonel, major, or chief warrant officer CW4 or

CW3 who was twice reported by a DA promotion selection

board as not recommended for promotion provided there

were at least nine months between the adjournment dates;

that this change was effective upon receipt and was

intended to clarify past and present DA policy concerning

release or discharge from active duty of certain officers;

that the wording of this change conformed to the intent

behind, and practice under, the previous version; and that

accordingly, failure to be recommended for promotion, both

before and after the date of this message, counted towards

the separation, elimination, or removal from active duty as

appropriate.

19. That paragraph 3-65, Section XVII, AR 635-100,

dated 19 February 1969, with changes, provided, in

pertinent part that Reserve commissioned officers and

chief warrant officers, W-3 or W-4, and AUS commissioned

officers and chief warrant officers W-3 or W-4, who twice

fail to be considered fully qualified, under AR 624-100, for

promotion to the temporary AUS grade of captain, major,

lieutenant colonel, or chief warrant officer W-3 or W-4,

provided nine months or more elapsed between adjourn-

ment dates of selection boards, would be relieved from

active duty on the 90th day after receipt of involuntary

release notification, unless voluntary earlier release was

33a

requested; that an officer eligible for retirement could

apply for retirement, to be effective not later than the first

day of the month following the month in which release was

directed; that officers who would complete 18 or more

years of active Federal service; and that in considering

date would not be processed under this section, unless such

action was approved by the Secretary of the Army, but

would be retained on active duty until the last day of the

month following the month in which they completed 20

years of active Federal service; and that in considering

officers for AUS promotion, selection boards also deter-

mine whether those twice passed over for promotion

should be considered for elimination from their Reserve

commissions in addition to release from active duty.

20. That DA Message Date Time Group 191754Z May

1975, Subject: Change to paragraph 3-65A(1)(2) and (3),

AR 635-100, Officer Personnel Separations, dated Febru-

ary 1969, provided in pertinent part that Reserve commis-

sioned officers and Reserve warrant officers serving on

active duty and Army of the United States Warrant

officers, who fail a second time to be recommended for

promotion to temporary AUS grade of captain, major,

lieutenant colonel, or chief warrant officer W-3 or W-4,

provided there were at least nine months between adjourn-

ment dates of selection boards, would be relieved from

active duty on the 90th day after receipt of involuntary

release notification unless earlier release was requested;

that this change was effective upon receipt and was

intended to clarify past and present DA Policy concerning

release from active duty of officers two times nonselected

for promotion to the temporary grades of lieutenant

colonel, major, captain, chief warrant officer W-3 or W-4;

that the wording of this change conformed to the intent

behind, and practice under, the previous version; and than -

accordingly, failure to be recommended for promotion, both

before and after the date of this message counted toward

the separation, elimination, or removal from active duty as

appropriate.

34a

The Board Concludes:

1. That no evidence has been submitted to show that the

findings and recommendations of the first captain to

majors’, Army of the United States Selection Board of

January 1974, were ever formally submitted or approved

by the Secretary. Thus, with respect to the first issue,

former Secretary of the Army Callaway was exercising his

discretionary powers and was acting within his statutory

authority to appoint a new selection board in March 1974

to consider all eligible captains for temporary promotion

(appointment) to the grade of major. To contend in effect,

that promotion selection boards have the final decision on

temporary promotions (appointments) appears to do vio-

lence to the Constitution and the statutes wherein The

President, as Commander-In-Chief, is the sole appointing

authority and The Secretary of the Army was, in the

events leading to this matter, acting in the name of the

President: That efforts to locate a formal list of officers

recommended for promotion by the first Selection Board, if

in fact such a list ever existed, have been unsuccessful;

and that the fact that four officers can be identified as

having been selected, merely resulted from a personal

review of certain military records by the Secretary to

ascertain the quality of some of the officers being consi-

dered. Therefore, there was, and is, no error or injustice

with regard to the first issue.

2. That with respect to the second issue, the 1972

Secretarial approved revision to the officer secondary zone

selection rates for promotion to the temporary grades of

Lieutenant Colonel, Major, and Chief Warrant Officer

(W-3) and (W-4), was clearly within the discretionary and

statutory authority of the then Secretary of the Army at

the time; and that its adoption and indorsement by former

Secretary Callaway in 1974 during his term as Secretary

of the Army served only to exercise his discretionary

authority in this regard. The approved policy and regula-

tory revision concerned was properly established and has

been followed by the Department since 1972. That

although it would have been preferable to have published

35a

such policy change as appropriate change to regulations,

failure to identify the revision as a numbered change to

AR 624-100, as contended by applicants and counsel, did

not and does not render void or ineffective what was

clearly intended and widely disseminated to all concerned

as an approved policy and regulatory revision to the officer

secondary zone selection rates in AR 624-100. While it

appears that the Department was remiss in not maintain-

ing the regulation concerned on a current basis, no error or

injustice to the individuals concerned is considered to exist

by reason of such failure.

3. That with respect to the third issuc, the record before

the Board does support the contention that an allowable

maximum number of promotions from the Secondary Zone

(SZ) was expressed by Secretary Callaway to the 1974

selection boards. However, the instructions to the selection

boards concerned were open ended instructions, as evi-

denced by the Letters of Instructions (LOI) to those boards,

which provided, in effect, that if the board could not

recommend the number specified, or if the relative quality

clearly indicated the number should be greater, the

president of the board would notify the Secretary prior to

adjournment. That based upon the testimony of Secretary

Callaway before the Board, his October 1975 affidavit,

together with the depositions given by selection board

members, this Board is of the opinion that the Secretary of

the Army acting within his statutory authority did not

attempt to reserve a designated number of promotions in

the SZ without due regard to seniority and age of officers

in the Primary Zone (PZ) under a fair and equitable basis;

further, a fair reading of his letter of instructions does not

support the contention that such instructions were an

attempt to preempt the discretionary powers of the

selection boards to recommend selection of outstanding

officers in the SZ (within the allowable maximum number

authorized) who were clearly superior to those PZ officers

they would displace. In the absence of proof to the

contrary, there appears to be no error or injustice in this

regard.

36a

4. That with respect to issue number four, the evidence

of record before the Board fails to support the contention

that the Secretary of the Army’s instructions to the

selection boards constituted a directive to the boards to

consider youth as a primary asset in the PZ as well as the

SZ. That a thorough review of the entire Army promotion

system under governing statutory and regulatory proce-

dures, the implementing instructions and guidance to

selection boards, and the percentage of senior officers

selected for promotion reveals that due regard was given

to seniority and age in both the primary and secondary

zone selections. Further, the LOIs issued to the selection

boards clearly established that youth was a major asset

and primary consideration for selecting officers only from

the SZ even though age in itself was not the sole basis for

selection. That while the statistics and charts presented by

the applicants in support of their contention of age

discrimination was persuasive, failure to explain away

such other factors impacting upon the selection process

(efficiency, ability, scope and variety of tasks, degree and

level of responsibilities, military and civilian education,

and types and length of command assignments) renders

the evidence as submitted of little meaningful substance,

particularly with regard to a showing that age was a

primary factor in nonselection. This conclusion is further

substantiated by the written depositions presented by the

selection board members in this matter. Accordingly,

applicants’ claim of age discrimination contrary to statutes

and regulations appears to be without basis.

5. That with respect to the fifth issue, it is the

considered judgment of the Board that the May 1975

message amendments to AR 624-100 and AR 635-100 did

not serve to operate retroactively as alleged by the

applicants; that such messages merely clarified and con-

firmed a long standing Departmental approved policy, that

an officer who was not selected (recommended) for tempor-

ary promotion to the next higher grade would have such

non-selection counted towards separation, elimination, or

removal from active duty, as appropriate. The fact that

37a

_the applicants (through administrative oversight) were not

properly informed that their first nonselection for promo-

tion constituted a “passover” as defined in AR 624-100,

such action did not connote that they were found “not fully

qualified” to assume the position and responsibilities of

the next higher grade. Instead, the record before the Board

discloses clearly that the Selection Boards considered them

fully qualified, but did not select them for promotion under

the “Best Qualified” method. The applicants were twice

«0t selected (recommended) for temporary promotion to

the next higher grade under the “best qualified” method

by the 1974 and 1975 Selection Boards under the Depart-

mental approved promotion policy, as announced Army

wide in August 1968 and July 1970 and further clarified

and confirmed in May 1975. Therefore, the applicants were

not deprived of due process of law or regulation regarding

their promotion status, notwithstanding the remissfullness

of the Department to incorporate previously announced

approved changes of policy in numbered changes to AR

624-100 and AR 635-100.

6. That with respect to the sixth issue, Title 10, U.S.C.,

Section 266(a), does provide that all boards convened for

appointment, promotion, demotion, involuntary release

from active duty, etcetera, of Reserves shall include an

appropriate number of Reserves as prescribed by the

Secretary concerned under the standards and procedures

established by the Secretary of Defense; that DOD Instruc-

tion 1205.4 dated 23 June 1959 does establish the policy

that boards convened for the appointment, promotion,

demotion, involuntary release from active duty, etcetera,

of Reserves shall be constituted as prescribed by the

appropriate Secretary and shall include appropriate num-

bers of members from the Reserve Components; and that

AR 624-100 does prescribe that whenever the zone of

consideration includes nonregular officers, selection boards

will, where practicable, include at least one officer of the

Reserve Components. That while it appears that the

Department may not have complied with the intent of the

law to have an appropriate number of Reserve Component

38a

members on the 1974 and 1975 promotion boards when

considering Reserve officers, the written depositions of the

selection board members indicate that an individual’s

component had little or no bearing in their consideration

and selection of an officer for promotion. Further it

appears from a review of the entire matter that any

decision or other action by the Department to omit Reserve

Officers from promotion selection boards was not done in

an arbitrary or capricious manner or with malicious intent

to harm or prejudice the applicants’ promotion chances as

Reservists. That the Department’s interpretation of

“where practicable” have been construed to mean “qual-

ified and available” to serve as a board member and such

interpretation appears to be reasonable; however, the

information submitted for consideration of this Board fails

to show that there were no qualified Reserve Officers, or

that such officers were not available to serve on promotion

Boards; indeed, it appears from testimony submitted to

this Board that a reasonably diligent search would have

been successful in locating at least one Reserve Officer

who met the qualification standards and was available to

serve as a selection board member. That in viewing the

situation in the most favorable light to the applicants, it is

apparent the absence of Reservists from the 1974 and 1975

selection boards may have deprived them of consideration

in a manner intended; that although the applicants have

not shown that they have been harmed because there was

no Reserve officer on the board, the failure to have a

Reserve officer as a member of the selection board raises

some doubt as to whether the applicants were accorded

proper consideration for promotion under the 1974 and

1975 promotion criterion.

7. That in view of the foregoing findings and conclu-

sions, the failure of the Department to appoint an

appropriate number of Reserve officers as members of the

1974 and 1975 selection boards has resulted in an injustice

to the applicants in that it has deprived them of considera-

tion for promotion by selection boards containing Reserve

officers.

39a

The Board Recommends:

1. That new Department of the Army Promotion Selec-

tion Boards (AUS) be separately convened in composition

and by calendar year with an appropriate number of

Reserve officers as members thereof to reconsider all

officers for promotion to the temporary grades of lieute-

nant colonel, major, chief warrant officer ( W-3), and chief

warrant officer (W-4) who were originally eligible for

consideration in the primary zone for promotion to such

grades in 1974 and in 1975 respectively; and that the

letter orders of instruction and guidance pertaining to the

primary zone previously furnished the original 1974 and

1975 selection boards be utilized as the criterion for

consideration and selection.

2. That the military records of all eligible officers and

warrant officers be appropriately reconstituted in the same

manner as they would have been for consideration under

the 1974 criterion and thence the 1975 criterion; that such

reconstituted records omit reference to any prior selection

or nonselection by the previous 1974 and i975 Selection

Boards or subsequent service; that the records as appropri-

ately reconstituted for consideration under the 1974

selection criterion be referred to the newly constituted

selection board for that calendar year; and that the records

as appropriately reconstituted for consideration under the

1975 selection criterion be referred to another newly

constituted selection board for that year.

3. That the names of officers and warrant officers who

were previously nonselected for temporary promotion to

the next higher grade under the 1974 and/or 1975

selection criterion and who are recommended for promo-

tion by the newly constituted selection board should be

reported to this Board for appropriate corrective action of:

the records of those who have filed an application in

connection with this matter.

4. That the names of officers and warrant officers who

were previously nonselected for temporary promotion to

the next higher grade under the 1974 and/or 1975

40a

selection criterion and who fail again to be recommended

for promotion by a newly constituted selection board under

the 1974 and/or 1975 selection criterion should be reported

to this Board for such administrative action as may be

deemed appropriate.

5. That officers and warrant officers who were previous-

ly selected for promotion under the original 1974 and/or

1975 selection criterion and who have been promoted or

are awaiting promotion should not be prejudiced by

depriving them of their current promotion status.

Gorpon M. Hosss

Chairman.

DEPARTMENT OF THE ARMY

Washington, D.C. 20310

. 27 Jan. 1976

SFMR — GADDINI, LOUIS D., 342-22-2633, et al.

KMIECIAK, THEODORE J., JR., 202-30-5433,

et al

HOPKINS, JACOB A., 188-32-6456, et al.

MEMORANDUM FOR: CHIEF OF STAFF

Having approved the findings, conclusions and recom-

mendation of the Army Board for Correction of Military

Records, and under the provisions of 10 U.S.C. 1552, it is

directed:

1. That new Department of the Army Promotion Selec-

tion Boards (AUS) be separately convened in composition

and by calendar year with an appropriate number of

Reserve officers as members thereof to reconsider all

officers for promotion to the temporary grades of lieute-

nant colonel, major, chief warrant officer (W-3), and chief

warrant officer (W-4) who were originally eligible for

consideration in the primary zone for promotion to such

grades in 1974 and in 1975 respectively; and that the

letter orders of instruction and guidance pertaining to the

+ OY erate = retro ae

4la

primary zone previously furnished the original 1974 and

1975 selection boards be utilized as the criterion for

consideration and selection.

2. That the military records of all eligible officers and

warrant officers be appropriately reconstituted in the

same manner as they would have been for consideration

under the 1974 criterion and thence the 1975 criterion;

that such reconstituted records omit reference to any prior

selection or nonselection by the previous 1974 and 1975

Selection Boards or subsequent service; that the records as

appropriately reconstituted for consideration under the

1974 selection criterion be referred to the newly consti-

tuted selection board for that calendar year; and that the

records as appropriately reconstituted for the considera-

tion under the 1975 selection criterion be referred to

another newly constituted selection board for that year.

3. That the names of officers and warrant officers who

were previously nonselected for temporary promotion to

the next higher grade under the 1974 and/or 1975

selection criterion and who are recommended for promo-

tion by the newly constituted selection board should be

reported to the Board for Correction of Military Records

for appropriate corrective action of the records of those

who have filed an application in connection with this

matter. ;

4. That the names of officers and warrant officers who

were previously nonselected for temporary promotion to

the next higher grade under the 1974 and/or 1975

selection criterion and who fail again to be recommended

for promotion by a newly constituted selection board under

the 1974 and/or 1975 selection criterion should be reported

to the Board for Correction of Military Records for such

administrative action as may be deemed appropriate. j

5. That officers and warrant officers who were previous-

ly selected for promotion under the original 1974 and/or

1975 selection criterion and who have been promoted or

42a

are awaiting promotion should not be prejudiced by

depriving them of their current promotion status.

Martin R. HorrMann,

Secretary of the Army.

DEPARTMENT OF THE ARMY

Army Board for Correction of Military Records

Proceedings*

IN THE CASE OF:

LOUIS D. GADDINI Docket Number: AC75-05512

342-22-2633 9 February 1977

: : d

I certify that hereinafter is recorded the true an

complete record of the proceedings of the Army Board for

Correction of Military Records in the case of the above-

named individual. A quorum was apa during “a

hearing and deliberation. The following findings, conclu-

sions and recommendations were adopted by the Board.

i i ili rds as

Applicant requests correction of military reco

stated in application to the Board and restated herein.

The Board convened at the call of the Chairman on the

above date and, following consideration of the case and

having made its determination thereof, proceeded to other

business. ;

Present:

Mr. Gordon M. Hobbs, Chairman, Mr. Oliver Kennedy,

Member, Mr. Charles R. Woodside, Member, Mr. James C.

Hise, Member, Mr. James L. Stroud, Member, Mr.

Raymond J. Williams, Executive Secretary, Mr. E. E.

Wilmeth, Exmainer.

The Board considered the following evidence:

Exhibit A — Application for correction of military

records.

* Identical “Proceedings” were issued as to all applicants

during the period October 1976 through December 1977.

43a

Exhibit B — 10 December 1975 ABCMR Board Pro-

ceedings.

Exhibit C — 28 January 1976 Secretary of the

Army decision.

The Board Finds:

1. That the applicant has exhausted all administrative

remedies afforded by existing law or regulations.

2. That it incorporates in these proceedings and adopts

by reference thereto so much of the Exhibits above, as

pertains to the factual showing of the Department of the

Army records which generally reflect:

a. that the applicant, who was considered by the Board

for Correction of Military Records on 10 December 1975 as

part of a class action, requests, in effect, that his military

records be corrected to show him promoted to the grade of

Lieutenant Colonel (LTC), Army of the United States

(AUS), under the primary zone of either the 1974 or 1975

LTC, AUS, selection criteria with restoration to active

duty, as applicable, and without loss of active duty service

and pay and allowances; that the applicant in the class

action alleged error or injustice in that:

(1) the Secretary of the Army’s action in voiding

the selection boards action in the first 1974 Captain to

Major, AUS, selections was unlawful;

(2) the percentage of selections directed from the

secondary zone was unlawful;

(3) the reservation of a designated number of

promotions from the secondary zone was unlawful;

(4) the instructions to the selection boards consti-

tuted a directive to the boards to consider youth as a

primary asset in the primary zone as well as the’

secondary zone;

(5) the 19 May 1975 messages amending AR 624-

100 and AR 635-100 are not applicable to the

applicants; and

44a

(6) the apparent lack of any Reserve membership

on any of the selection boards involved was contrary

to’ 10 United States Code 266 and Department of

Defense Instruction #1205.4, dated 23 June 1959; and

that such allegations are more fully addressed in the

Board proceedings described above at Exhibit B;

b. that the applicant was not selected for promotion

under either the 1974 or 1975 selection criteria for

promotion to LTC, AUS, and was transferred to the United

States Army Reserve;

c. that based upon the proceedings of this Board on 10

December 1975, as approved by the Secretary of the Army

on 28 January 1976, it was determined, in part, that there

was no error or injustice regarding the first five issues

raised by the applicant; that however, with respect to the

sixth issue the failure of the Department to appoint an

appropriate number of Reserve officers as members of the

1974 and 1975 selection boards had resulted in an injustice

to the applicant in that it had deprived him of considera-

tion for promotion by selection boards containing Reserve

officers; that pursuant to the Secretary’s directive of 28

January 1976 the military records of all eligible officers

were reconstituted in the same manner as they would have

been for consideration under the primary zone of the 1974

and 1975 promotion criteria; and that reconstituted 1974

and 1975 LTC, AUS promotion selection boards for

promotion to LTC, AUS were convened on 4 May 1976 and

14 September 1976, respectively, with an appropriate

number of Reserve officers on the panel of the boards, and

adjourned on 1 June 1976 and 17 September 1976,

respectively; and

d. that on 29 June 1976 and 13 October 1976, respec-

tively, Deputy Chief of Staff for Personnel advised this

Board pertinently that the applicant was reconsidered for

temporary promotion to the grade of LTC under the

original criteria for the primary zone of the 1974 and 1975

selection boards by the reconstituted selection boards

convened in accordance with the Secretary’s directive; and

45a

that the applicant had not been selected for promotion to

LTC, AUS, by the 1974 and 1975 reconstituted promotion

selection boards that adjourned on 1 June 1976 and 17

September 1976.

The Board Concludes:

1. That in light of the foregoing information and

evidence heretofore submitted, the Board affirms its

conclusions of 10 December 1975 that there was no error

or injustice with regard to the first five issues considered

in the proceedings at Exhibit B as approved by the

Secretary on 28 January 1976 (Exhibit C).

2. That the 1974 and 1975 reconstituted LTC, AUS

selection boards were properly constituted with Reserve

officer membership pursuant to the Secretary’s directive of

28 January 1976 and in accordance with 10 United States

Code 266(a) as implemented by the Department of Defense

Instruction 1205.4, dated 23 June 1959; and that the

applicant was accorded proper consideration for promotion

under the 1974 and 1975 LTC, AUS, selection criteria

thereby.

3. That the applicant’s records having been reconsti-

tuted in the manner prescribed by the Secretary and

having been reviewed by properly reconstituted LTC, AUS

promotion boards under the primary zone of the 1974 and

1975 criteria, it is reasonable to presume that had he been

considered by properly constituted boards, he would not

have been selected for promotion at the time concerned

under the “best qualified” method.

4. That the applicant’s nonselection for temporary

promotion to the next higher grade tends to support the

evidence heretofore submitted (a) that an individual’s

compenent had little or no bearing in his consideration .

and selection for promotion, and (b) that any decision or

other action by the Department to omit Reserve officers

from promotion selection boards was not done in an

arbitrary or capricious manner or with malicious intent to

harm or prejudice the applicant’s promotion chances as a

Reservist.

46a

5. That in consideration of the foregoing findings and

conclusions, the applicant’s nonselection for promotion to

LTC, AUS

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