# Petition — Doyle v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1748%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 982 ## Text In THE Supreme Court of the United States OcroBEeR TERM, 1979 No. _%9=] 315 MAJOR LEO D. DOYLE, er AL., Petitioners. 5 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 ee 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 20 22 25 26 i 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 29 31 32 35 la la 3a 5a 6a 8a 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 iv 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) 2 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 (c) the ex parte “evidentiary proceedings” were not in fact conducted under the original promotion criteria thereby diminishing Petitioners’ opportunity for selection 3 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 (c) the Secretary of the Army agreed that Petitioners 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 (c) the Secretary relies upon written policy statements 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. 5 § 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 6 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. 7 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. 8 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. 9 findings, the ABCMR found that Petitioners might have been deprived of consideration in the manner intended in that: ee . . 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: ee . . 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 10 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. 11 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. 12 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. 13 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”. 14 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. 15 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. 16 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. 17 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 18 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. 19 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 20 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).” 21 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. 22 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- 23 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. 24 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. 25 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 26 624-100, §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. 27 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;. (c) that Petitioners knew exactly how the results of the 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”. 28 (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 29 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’ 30 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. 31 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. 32 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. 33 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. 34 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. 35 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 la 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- 2a 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) 3a 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. 4a 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) 1 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— 5a 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, 6a 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. 7a (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. * * * * * * 8a 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. 9a 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 incl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1748%3A1. Public record. Not legal advice.