Record and brief — Grieg v. United States
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81-685 r
No. 81-
—
IN THE
— —
OCTOBER TERM, 1981
JOHN M. GRIEG,
Petitioner,
V.
UNITED STATES OF AMERICA
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF CLAIMS
Of Counsel:
SHEA & GARDNER
1800 Massachusetts Ave., N.W.
Washington, D.C. 20036
October 10, 1981
I. MICHAEL GREENBERGER *
MICHAEL S. GIANNOTTO
SHEA & GARDNER
1800 Massachusetts Ave., N.W.
Washington, D.C. 20036
(202) 828-2000
NEIL B. KABATCHNICK
Suite 860
1800 M Street, N.W.
Washington, D.C. 20036
(202) 872-1051
Attorneys for Petitioner
* Counsel of Record
WILSON - EPES PRINTING Co.. lc.
- 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED FOR REVIEW
Pursuant to 10 U.S.C. § 1552, each civilian Secretary
of a military department, acting through correction
boards, is charged with correcting military records which
are in “error” or which constitute an “injustice.” Often,
as in this case, an adverse correction board decision
pertaining to a military record has the effect of sustain-
ing an individual’s mandatory, involuntary termination
from the armed services. By regulation, the correction
boards provide no right to an oral hearing, compulsory
process, or cross examination. On review in the Court
of Claims, a de novo trial is afforded.
The questions presented for review are as follows:
Whether it is a violation of the Administrative Pro-
cedure Act, 10 U.S.C. § 1552, the Due Process Clause of
the Fifth Amendment, or the federal common law per-
taining to judicial review for the Court of Claims to up-
hold such civilian correction board decisions
(a) by considering only the evidence adduced at the
de novo trial which supports the correction
board’s factual determinations and by refusing
to give any consideration or weight to either a
plaintiff’s de novo showing or the trial judge’s
findings to the contrary;
(b) by barring the fresh determination of facts by
its trial judges when they review, at the trial de
novo, the correction board factual determinations
and by requiring those judges to find, absent a
confession of error by the government, that the
military record in dispute, in and of itself, con-
stitutes sufficient evidence to support the board
determination as to that record’s accuracy; and
(e) by abridging the right to a trial de novo by fail-
ing to give any consideration or weight either
to the evidentiary showings made by a plaintiff
at such a proceeding or to the trial judge’s
findings.
(i)
ii
PARTIES BELOW
The only parties to this proceeding in the court below
are those indicated by the caption of this petition.
TABLE OF CONTENTS
. ————————
—— — ——ů ů ů ——
STATUTES AND REGULATIONS EVS
STATEMENT OF THE CASE
1.
2.
3.
Introduction — — 8
Petitioner’s Army Record
Events Pertaining to Petitioner’s Involuntary
e SI | TE oN eC ee
a. Notice of the third Vietnam assignment....
b. Completion of arctic tests
e scesestinistemnenmeneniinnies
6.
7.
Administrative Proceedings .....................-..........-
a. Before the Special Review Board
b. Before the Correction Board ..........................
Trial Division Proceedingngs s
Court of Claims Decision
REASONS FOR GRANTING THE WRIT . q
A. THE COURT OF CLAIMS’ DECISION BELOW
IS IMPORTANT, WILL HAVE BROAD IM-
PACT, AND CONFLICTS WITH CIRCUIT
. Tb
B. THE COURT OF CLAIMS’ USE OF A SUB-
STANTIAL EVIDENCE TEST TO REVIEW
FACTS FOUND DE NOVO AFTER TRIAL
CONFLICTS DIRECTLY WITH DECISIONS
„ rr
(iii)
13
14
14
iv
TABLE OF CONTENTS—Continued
Page
2. De Novo Scope of Review ......................--.----- 16
3. Substantial Evidence Test Applied to De
. 17
C. THE COURT OF CLAIMS’ REFUSAL TO EX-
AMINE CORRECTION BOARD DECISIONS
ON THE BASIS OF THE “WHOLE RECORD”
CONFLICTS WITH THE APA AND DECI-
SIONS OF THIS COURT ............ 19
D. THE RESTRICTIVE SCOPE OF REVIEW
APPLIED BELOW CONFLICTS WITH THE
REMEDIAL INTENT OF CONGRESS IN
ESTABLISHING CIVILIAN CORRECTION
———— — 24
E. THE RESTRICTIVE SCOPE OF REVIEW
APPLIED BY THE COURT BELOW NE-
GATED PETITIONER’S DUE PROCESS
RIGHT TO AN ORAL HEARING AND TG
CONFRONT ADVERSE WITNESSES .......... 25
ET — — 27
*
TABLE OF AUTHORITIES
Cases: Page
Alexander v. Gardner-Denver Co., 415 U.S. 36
% AAA 16
Arnett v. Kennedy, 416 U.S. 134 (1974) ................. 25
Beckham v. United States, 375 F.2d 782 (Ct. Cl.
—2— d — aaa ae 16, 17
Blevins v. Plummer, 613 F.2d 767 (9th Cir. 1980).. 27
— . 4. 15, 17
Brown v. United States, 396 F.2d 989 (Ct. Cl.
— 15. 16, 17, 18, 23
Buchanan v. United States, 621 F.2d 373 (Ct. Cl.
I — —— tials 18. 26
Camp v. Pitts, 411 U.S. 138 (1973 —— 16, 18
Chandler v. Roudebush, 425 U.S. 840 (1976) ........ 16
Citizens to Preserve Overton Park, Inc. v. Volpe,
I. ttsttcnncnineesintanentiiioniniaininn 16, 18
Colm v. Vance, 567 F.2d 1125 (D.C. Cir. 1977) 27
Diliberti v. Brown, 583 F.2d 950 (7th Cir. 1978). 27
Duhon v. United States, 461 F.2d 1278 (Ct. Cl.
OUD ceeenessesenessmineetmemnnnnannpainmnenmsemninns 24
Ingraham v. Wright, 430 U.S. 651 (1977) ............ 26
Knehans v. Alexander, 566 F.2d 312 (D.C. Cir.
1977), cert. denied, 435 U.S. 995 (1978) ......... 27
Lane V. Secretary of Army, 504 F. Supp. 39 (D.
Md.), aff'd mem., 639 F.2d 780 (4th Cir. 1980) 27
McGahey v. United States, 213 Ct. Cl. 717 (1977).. 15
Montilla v. United States, 457 F.2d 978 (Ct. Cl.
% —A A 15-16
Morrissey v. Brewer, 408 U.S. 471 (1972) 26
Neal v. Secretary of Navy, 639 F.2d 1029 (3d Cir.
11*» ̃ ʃ—27'——— 18. 26
NLRB v. Robbins Tire & Rubber Co., 161 F.2d
e ceceneresccsneseseresstteninieddidteitinien 23
Nolen v. Rumsfeld, 535 F. 2d 888 (5th Cir. 1976),
cert. denied, 429 U.S. 1104 (1977777 19
Nolen v. Schlesinger, 492 F.2d 787 (5th Cir.
1%%%ͥͤ»’é ũ ‚‚ ] Au!I ˙ 19
Ogden v. Zuckert, 298 F.2d 312 (D.C. Cir. 1961). 4,14
Oleson v. United States, 172 Ct. Cl. 9 (1965) 4,24
vi
TABLE OF AUTHORITIES—Continued
Page
Pauls v. Secretary of Air Force, 457 F.2d 294 (Ist
Z 27
Ragoni v. United States, 424 F.2d 261 (3d Cir.
e — 18
Renegotiation Board v. Bannercraft Clothing Co.,
. ee 16, 17
Riley v. United States, 608 F.2d 441 (Ct. Cl.
eee 22
Roelofs v. Secretary of Air Force, 628 F.2d 594
Z 18
Rolles v. Civil Service Commission, 512 F.2d 1319
, EL ev 25, 26-27
Sanders v. United States, 594 F.2d 804 (Ct. Cl.
SAE a passim
Sanford v. United States, 399 F.2d 693 (9th Cir.
11 —— —ͤ— 18-19
SEC v. Chenery Corp., 332 U.S. 194 (19477 23
Skinner v. United States, 594 F.2d 824 (Ct. Cl.
I ETS EE a Poe 22, 24
Suro v. Padilla, 441 F. Supp. 14 (D.P.R. 1976).. 27
United States v. First City National Bank, 386
r 16
Universal Camera Corp. v. NLRB, 340 U.S. 474
ES ce 20, 22
Vitek v. Jones, 445 U.S. 480 (1980) 26
Weahkee v. Perry, 587 F.2d 1256 (D.C. Cir. 1978).. 16, 17
Wolff v. McDonnell, 418 U.S. 539 (197) 26
Woodby v. Immigration & Naturalization Service,
EE ESTES SITE 16
Statutes, Rules and Regulations:
Administrative Procedure Act, § 706, 5 U.S. C. 8 706
. 2, 18, 19
Defense Officer Personnel Management Act, as
amended
§ 105, 10 U.S.C.A. §§ 631, 632, 637 (West
D 9, 26
§ 204, 94 Stat. 2880 5 9, 25-26
vii
TABLE OF AUTHORITIES—Continued
Page
Legislative Reorganization Act of 1946, as amended
§ 131, 2 U.S.C. §190g (1976) (partially re-
E 2, 3
§ 207, 10 U.S. C. A. 5 1552 (a) (West Supp.
1980) 1
Officer Personnel Act of 1947, as amended
§ 509(g)-(h), 10 U.S.C. §3303 (1976) (re-
T 9, 25
Tucker Act, as amended
§ 1, 28 U.S.C. § 1491 (1976 & Supp. III 1979). 2,4
passim
r 2
28 U.S.C. § 1346 (1976 & Supp. III 19797 4
Department of the Army Regulations
C passim
AR 15-185 (32 C. F. R. § 581.3 2, 3, 11
Rules of the House of Representatives
Rule XXII, J 2, 97th Cong., Ist Sess. (1981). 2,3
Senate Standing Rules for Conducting Business,
D ia aL aa 2,3
Rules of the Court of Claims, Rule 147(b) ............. 17
Rules of the Supreme Court, Rule 21.1(k) ) 1
Other Authorities:
H.R. Rep. No. 640, 80th Cong., Ist Sess. (1947) 25, 26
S. Res. 274, 96th Cong., Ist Sess. 125 Cong. Rec.
816588 (daily ed. Nov. 14, 1979), as amended by
S. Res. 389, 96th Cong., 2d Sess., 126 Cong. Rec.
82942 (daily ed. March 25, 1980) 2
Ford, Officer Selection Boards and Due Process of
Law, 70 Military L. Rev. 137 (1975) 27
Schwartz, Administrative Law § 210 (1976)
IN THE
Supreme Court of the United States
OCTOBER TERM, 1981
No. 81- ——
JOHN M. GRIEG,
V.
UNITED STATES OF AMERICA
Petitioner,
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF CLAIMS
OPINIONS BELOW
The decisions of the Army Special Review Board (A.
63a-64a)' and the Army Board for Correction of Miii-
tary Records (A. 59a-62a) denying petitioner relief are
not reported. The opinion and findings of the Court
of Claims trial judge granting petitioner relief (A. 20a-
58a) are not reported. The opinion of the Court of Claims
reversing the decision of the trial judge (A. la-19a) is
reported at 640 F.2d 1261.
JURISDICTION
The judgment and opinion of the Court of Claims (A.
la-19a) were entered on January 28, 1981. A timely
petition for rehearing was denied on May 15, 1981. A.
65a. On August 3, 1981, the Chief Justice entered an
order (A. 66a) extending the time within which to file
1 Citations to “A.” refer to the separate appendix that accom-
panies the instant petition pursuant to Rule 21.1(k) of this Court.
this petition to October 12, 1981. The jurisdiction of
this Court is invoked under 28 U.S.C. § 1255(1).
STATUTES AND REGULATIONS
There are set out in the appendix this petition the
following provisions: .
Sections 131 and 207 of the Legislative Reorganiza-
tion Act of 1946, as amended, 2 U.S.C. § 190g (1''76)
(partially repealed 1979) and 10 U.S. C. A. § 1552. a)
(West Supp. 1980) (A. 67a-68a)?
Section 706 of the Administrative Procedure Act,
5 U.S.C. § 706 (1976) (A. 67a)
Section 1 of the Tucker Act, as amended, 28 U.S.C.
§ 1491 (1976 & Supp. III 1979) (A. 68a-69a)
Department of the Army Regulations *
AR 623-105 (1966) (A. 72a)
AR 623-105 (1972) (A. 73)
AR 15-185 (1977) (32 C.F.R. § 581.3 (1977) )
(A. 70a-72a) :,
2 On November 14, 1979, 2 U.S.C. § 190g was repealed insofar as
it applied to the United States Senate. S. Res. 274, 96th Cong.,
Ist Sess., 125 Cong. Rec. 816588, 816602 (daily ed. Nov. 14, 1979).
However, the substance of the statute’s terms was preserved by
inclusion within the Senate Standing Rules for Conducting Busi-
ness. See Rule XIV, {9 (adopted pursuant to S. Res. 274, supra,
125 Cong. Rec. at 816690, as amended by S. Res. 389, 96th Cong.,
2d Sess., 126 Cong. Rec. S2942 (daily ed. March 25, 1980).
A. 74a. The substance of the statute’s terms is also included in
Rule XXII, J 2, of the Rules of the House of Representatives, 97th
Cong., Ist Sess. (1981).
The regulations reproduced in the appendix are those which
were in effect during the time periods relevant to this case. These
regulations have not been changed substantively since those time
periods. See AR 623-105 (1979); 32 C.F.R. § 581.3 (1980).
3
STATEMENT OF THE CASE
1. Introduction. The court below, acknowledging the
appealing facts of [petitioner’s] case,” described this
action as raising “important questions concerning [its]
jurisdiction and permissible scope of review.” A. 2a. This
proceeding culminates petitioner’s almost decade-long ef-
forts to correct an error in his military records which
he contends led to his involuntary termination from the
United States Army after seventeen years of active duty
in that service. Congress does not permit the correction
of military records by private bill. 2 U.S.C. § 190g;
United States Senate Rule XIV, {9 (1981); House of
Representatives Rule XXII, 2 (1981).* Instead, it has
enacted legislation which delegates to the Secretary of
each military service, acting through civilian correction
boards, both the power and the duty to “correct any mili-
tary record ... when... necessary to correct an error
or remove an injustice.” 10 U.S.C. § 1552.“ Under gov-
erning reguiations, however, no right to an oral hearing,
compulsory process, or cross examination is provided in
Army correction board proceedings, and none of these
procedural protections was afforded in this case. See
32 C.F.R. 5 581.3 (e) (5) (i)-(ii), (d). Except in cir-
cumstances not here relevant, the only assured oppor-
tunity for oral presentation, compulsory process, and
confrontation of adverse witnesses accorded to individuals
seeking relief pursuant to § 1552 occurs in the trial de
novo in the United States Court of Claims to which
plaintiffs are entitled when challenging an adverse
correction board determination. Petitioner contends here
that, by virtue of the restrictive scope of review an-
nounced and applied by the Court of Claims in this case,
that single opportunity for an oral presentation and
cross examination has been rendered meaningless in
See n.2, supra.
5 See, e.g., Sanders v. United States, 594 F.2d 804, 812 (Ct. Cl.
1979) (en banc) (pursuant to § 1552, “the Secretaries have a duty
as well as the power to afford servicemen proper relief.“
4
that the Court of Claims’ trial judges are henceforth
effectively precluded from overturning correction board
decisions unless the military record is inaccurate on its
face or the government otherwise confesses error. In
this regard, Court of Claims’ trial judges are essentially
prohibited from looking beyond the military record which
is in dispute and considering the evidence presented by
plaintiffs at the de novo trial.“
Petitioner seeks in this Court no new procedural
rights in the correction process; rather, he merely main-
tains that the scope of review articulated by the Court of
Claims below is at odds with well-established concepts of
administrative law as enunciated in the Administrative
Procedure Act (“APA”) and decisions of this Court,
and that, by effectively nullifying his one opportunity
to confront adverse witnesses, it abridges procedural due
process rights afforded by the Fifth Amendment. Peti-
tioner further contends that the decision below conflicts
directly with the Court of Claims’ own assertions that
Congress intended 10 U.S.C. § 1552, the statutory
remedy for the correction of military records, to be “re-
medial and to be liberally construed, rather than [read]
narrowly or technically.” Oleson v. United States, 172 Ct.
Cl. 9, 18 (1965).
For an analysis of the Court of Ciaims' jurisdiction over
correction board decisions, see Sanders, supra, 594 F.2d at 809-13.
Suffice it to say here that that court has exclusive jurisdiction over
money claims against the United States not sounding in tort in
excess of $10,000, which are premised upon, inter alia. federal
statutes. 28 U.S.C. § 1491; 28 U.S.C. § 1346. Since a great many
cases pertaining to correction board decisions involve former mili-
tary personnel terminated from service because of allegedly erron-
eous records and since most resulting claims for back pay and
retirement benefits exceed $10,000, the Court of Claims has been
the principal forum for judicial review of correction board decisions.
Cf. Ogden v. Zuckert, 298 F.2d 312, 315 (D.C. Cir. 1961). In the
Court of Claims, plaintiffs challenging correction board decisions
are “entitled to a trial on the merits, as a matter of right, so that
[they] may have a judicial determination of the disputed factual
issues involved in [their] claim[s].” Bray v. United States, 515 F.2d
1383, 1390 (Ct. Cl. 1975).
The undesirable consequences resulting from the hold-
ing at issue are illustrated by the facts of this case.
2. Petitioner’s Army Record. The petitioner, John M.
Grieg, is a much decorated veteran of the United States
Army. Over the course of a seventeen-year military
career as an enlisted man and then an officer,” he was
certified, inter alia, as a Special Forces (i.e., Green
Beret) Officer and a Ranger Parachutist (A. 34a-35a)
and served three separate tours of combat duty in Viet-
nam. A. 2a-3a. During his second Vietnam tour, he was
the commander of a Green Beret counterinsurgency team
which engaged in guerilla warfare in the Vietnam jungle
for a six-month period (A. 36a) and, for that effort, he
was “awarded the Bronze Star Medal” for “distinguish-
ing himself by outstanding meritorious service in con-
nection with ground operations against a hostile force.”
A. 22a, 35a-36a. He earned two Oak Leaf Clusters for
his Bronze Star on the basis of further meritorious
service with the 82nd Airborne Division during his third
Vietnam tour. A. 3a, 47a-48a.*
3. Events Pertaining to Petitioner’s Involuntary Term-
ination.
a. Notice of the third Vietnam assignment. On June
22, 1966, petitioner was assigned to the Army’s Arctic
Test Center at Fort Greely, Alaska. A. 37a. His mission
there was to evaluate the performance of various items
of equipment under arctic conditions. A. 38a. Having
recently completed his second tour of duty in Vietnam, it
7 After serving in an enlisted status from November 1952 to
February 1956, petitioner received his commission in June 1958
pursuant to a Reserve Officers’ Training Corps program at the
University of Iowa, where he was rated a “Distinguished Military
Graduate.” A. 33a.
8 Petitioner’s other awards include a Combat Infantryman Badge,
an Army Commendation Medal with Oak Leaf Cluster, an Air
Medal, and a Meritorious Service Medal. A. 35a.
6
was petitioner’s understanding, from briefings by Army
personnel, that he would not, at least in the near future,
be sent back to that country. Tr. 158.“ At the time of
his Fort Greely assignment, petitioner’s only child was
two months old. Because he and his wife expected that,
“in accordance with [standard] Army policy, [his] as-
signment to Ft. Greely would continue for at least 2
years,” they decided in the early months of 1967 to have
a second child. A. 39a. It was anticipated that the child
would be born in December 1967, and thus that “the
family would be together at the time of the birth and
during [the child’s] early infancy.” A. 39a.
In August of 1967, however, during his wife’s preg-
nancy, petitioner received notice to begin a third tour
of duty in Vietnam that December. A. 3a. Confronted
with the prospect of being left in Alaska with a 16-
month-old child and a newborn, and aware “of other
officers who had not been called upon to do so much duty
in Vietnam,” petitioner’s wife became extremely upset
and resentful of “what she believed was unjust treatment
of her husband.” A. 3a.
In response to these domestic difficulties, petitioner, cit-
ing “extreme compassionate circumstances and personal
family problems,” formally tendered his resignation as
an officer in the Regular Army. A. 3a, 40a. That resig-
nation request was denied by the Army on grounds of
“overriding military needs.” A. 3a, 43a. Petitioner was,
however, eventually afforded a postponement of his third
Vietnam combat assignment until March 25, 1968, and
was further assured that the tender of his resignation
would “not be used as a determinant in promotion con-
sideration or future assignments.” A. 3a; PX. 58.”
Citations to “Tr.” refer to the transcript of the trial below
before the Tria! Division of the Court of Claims.
10 Citations to “PX.” refer to the exhibits submitted by peti-
tioner to the Trial Division of the Court of Claims in connection
with the trial below.
7
b. Completion of arctic tests. At the time petitioner
learned that he had been reassigned to Vietnam, his prin-
cipal tasks were the evaluation under arctic conditions of
a survival kit for infantry personnel and a system to
enhance night vision. A. 44a-45a. Petitioner acceler-
ated his work on these projects and completed the final
versions of his test reports two months ahead of schedule
and in time to meet his February 20, 1968 departure
date from Fort Greely. A. 45a-46a.
By communication dated February 5, 1968, the Army
Electronics Command commended as outstanding“ peti-
tioner’s night vision testing and stated that his efforts
“reflect [ed] most highly on [his] . . . capabilities
A. 46a-47a. This communication was accompanied by
a cover letter from the Arctic Test Center Commanding
Officer congratulating petitioner “for a job outstandingly
well done” and noting that petitioner’s “entire tenure
as a test officer has been worthy of such recognition.” A.
47a. Soon after their submission, both of petitioner’s
reports were approved by the Aimy Test and Evaluation
Command. PX. 87, 88.
4. The Disputed Rating. Notwithstanding petitioner’s
accelerated completion of his test reports and the praise
he received for his work, his Officer Efficiency Report
(“OER”) covering the period November 17, 1967 to
11 An Officer Efficiency Report is a periodic appraisal of an
officer’s performance of duty. AR 623-105 at §I-2(b) (1966).
Three persons, termed the “rater,” the “indorser,” and the “re-
viewer,” perform the evaluation. The rater will ordinarily be an
immediate supervisor in the rated officer’s chain of command or
staff. The indorser is normally the individual who rates the rater,
while the reviewer is usually the officer who rates the indorser.
Id. at § II-6. One of the primary purposes” of an OER is to pro-
vide a data base for personnel actions such as promotions. Id. at
§ I-2. Since the occurrence of the events at issue in this case,
OERs have been renamed “Officer Evaluation Reports;” however,
their function as the primary basis for promotion decisions has
remained unchanged. AR 623-105 at § 1-3 (1979).
Feoruary 20, 1968 contained an extremely low rating.
His composite numerical rating totalled only 166.0 (out
of a possible 240) points. A. 6a. In contrast, the com-
posite scores on the first two OERs rendered with re-
spect to petitioner’s services at Fort Greely totalled 203.7
and 209.1, respectively, while his average composite score,
throughout his army career, was 202.2. A. 5a-6a.
The November 1967 to February 1968 OER also con-
tained adverse comments. Major Herbert Lee Gregg, peti-
tioner’s OER rater,“ stated that petitioner had “failed to
prepare the reports of tests in the proper format or within
the required time frame” and that, when questioned about
his progress on the reports, had “displayed a very neg-
ative attitude.” A. 4a. Lt. Colonel Alfred E. Williams,
petitioner’s OER indorser, wrote that, while “MAJ Grieg
was a superior officer until he received his orders to
Vietnam,” during his “last 30 days . . . his dependability
was seriously affected,” and he “displayed a very negative
attitude toward the Army.” A. 4a.
Contrary to Army Regulations, petitioner was not in-
formed prior to preparation of this negative OER that
Major Gregg, a fellow officer for whom he had not worked,
would serve as his rater (Tr. 164-165, 222-224). AR
623-105 at §I-3(c) (1966). Nor, since the OER “was
prepared after [petitioner] left Fort Greely,” was he ac-
corded any prior notice of its contents or an opportunity
to refute them. A. 6a, 51a. Neither Major Gregg nor Lt.
Colonel Williams had “ever discussed with [petitioner]
.. . any supposed deficiencies in his performance.” A.
5la. Indeed, it was not until 1972, after he had been
passed over for promotion to the rank of permanent major,
that petitioner learned of the adverse rating he had re-
ceived in 1968. A. 6a.
12 See note 11, supra, for a definition of the terms “rater” and
“indorser.”
9
5. Administrative Proceedings.
a. Before the Special Review Board. In January 1973,
petitioner was passed over a second time for promotion
to permanent major, and was therefore involuntarily
terminated on November 1, 1973 from active duty pur-
suant to 10 U.S.C. §3303(d), a statute requiring
the discharge or retirement of an officer twice rejected
for promotion to the permanent grade of captain, major
or lieutenant colonel. A. 2a." Believing that his single
adverse OER inaccurately and unfairly characterized his
performance of duties and that it was the cause of his
promotion passovers, petitioner, pursuant to 10 U.S.C.
§ 1552, on October 5, 1973, filed with the Army Board
for Correction of Military Records an application to void
that OER and his resulting promotion failures. A. 6a,
52a.
Before his application could be considered by the cor-
rection board, petitioner was required to seek relief from
an Army Special Review Board—a body designated by
Army regulations to rule upon challenges to OERs. AR
623-105 at §§ 8-2 (a), 8-3(b) (1972). Before that body,
petitioner supported his contention that the OER was
inaccurate with eighteen exhibits demonstrating the high
quality of his service to the Army prior to, during, and
subsequent to the period covered by the OER, including
the various commendations he had received with respect
to the arctic testing reports and two statements dealing
with his performance made by Captain Jack Cook, a test
18 This statute was recently repealed by § 204 of the Defense
Officer Personnel Management Act, Pub. L. No. 96-513, 96th Cong.,
2d Sess. (1980), as amended by the Defense Officer Personnel
Management Act Technical Corrections Act, Pub. L. No. 97-22,
97th Cong., Ist Sess. (1981). The promotion provisions within
the new statute, except under certain defined circumstances, con-
tinue to require the discharge or retirement of officers twice passed
over for promotion to the ranks of captain to lieutenant colonel.
10 U.S.C.A. §§ 631, 632, 637 (West Supp. 1980). See note 24, infra.
10
officer who served with petitioner at Fort Greely and
who disputed several of the adverse factual contentions
within petitioner’s OER and supported petitioner’s state-
ments concerning the high quality and timeliness of his
work. PX. 72, 73 at 3.“
An unsigned “case summary” prepared for use by the
special review board in connection with petitioner’s case
concluded that, although it appeared that the negative
OER “was a major factor in [petitioner’s] non-selection”
for promotion, there was “insufficient evidence to sup-
port the claim that the contested report was not ac-
eurate [J. PX. 93 at 5, 6. This latter conclusion
was premised almost exclusively upon information ob-
tained from Lt. Colonel Williams, the indorser of the
OER, during an ex parte telephone conversation with the
review board’s staff. A. 53a-54a; PX. 93 at 5; Tr. 275-
276. According to the case summary, Lt. Colonel Wil-
liams stated that once petitioner had been assigned to
his third Vietnam tour, he “practically quit work” and
“spent most of [his] time and energy attempting to get
out of the Nam assignment . . [by] telephoning [the
Department of the Army] and congressmen, and writing
letters.” A. 7a. Moreover, Lt. Colonel Williams stated
that he was forced to redo some of petitioner’s tests be-
cause petitioner’s data was incomplete. A. 7a.
In a one-page letter dated February 27, 1974, peti-
tioner was advised that the special review board denied
his appeal because the evidence does not justify” void-
irg the OER. A. 63a. Petitioner was not accorded a
hearing prior to this denial, nor was he given notice
of, much less an opportunity to refute, the ex parte com-
ments. A. 2a.
14 The Cook averments and the documentary exhibits were pre-
sented pursuant to Army regulations which require that statements
of third parties who observe an officer’s performance and any
related documentary evidence from official sources be presented
as evidence of an inaccuracy in an OER. AR 623-105 at § 8-1(c)
(1972).
11
b. Before the Correction Board. Petitioner then pur-
sued his claim before the correction board. Oral hearings
are provided by that body only as a matter of discretion,
and, even when granted, the applicant has no power of
subpoena or right to cross examination. 32 C.F.R. § 581.3
(e) (5) (i)-(ii), (d). On October 19, 1977, petitioner’s
application, brief, and supporting exhibits were consid-
ered by the board in executive session along with ap-
proximately 110 other correction cases, and denied with-
out granting petitioner an oral hearing. A. 6a; PX.
114.“ In its four-paragraph statement of the reasons for
denying relief, the correction board relied extensively on
Lt. Colonel Williams’ ex parte telephone conversation.
A. 62a.
6. Trial Division Proceedings. Petitioner then in-
stituted the present suit in the Court of Claims seeking
back pay, retirement benefits, and the voiding of the
OER and promotion passovers. During a three-day trial
which ensued before that court’s Tria! Division, petitioner
testified that the negative comments contained in the
disputed OER and in Lt. Colonel Williams’ ex parte
statement were factually incorrect, and that he properly
and promptly completed his test reports.
Petitioner’s testimony was supported by that of his
wife and Captain Cook. A. 4a. Indeed, it was supported
in many respects by Lt. Colonel Williams, who, contrary
to his remarks in the OER and his ex parte comments,
admitted that: (1) the data petitioner had gathered for
his test reports were complete, and Lt. Colonel Williams
did not have to reperform any of the tests (Tr. 276-
279, 337); (2) the final reports were authored by pe-
titioner (Tr. 306-308); and (3) he (Lt. Colonel Wil-
liams) had no personal knowledge of petitioner contact-
15 Aside from ruling on 110 applications, the Board, on October
19, 1977, also held three formal hearings on other matters. PX.
114.
12
ing Army Headquarters or Congressmen to change his
Vietnam reassignment (Tr. 331-332, 335-336).
In his opinion and his findings of fact (A. 20a-58a),
Senior Trial Judge Mastin G. White determined that all of
the negative remarks made in the OER and in Lt. Colonel
Williams’ ex parte statement either were completely false
or, though literally true, conveyed a misleading adverse
impression concerning petitioner’s performance of his
duties. A. 50a-5la, 54a-55a."*° The trial judge further
found that the OER “did not represent an accurate, ob-
jective, fair, or just evaluation of [petitioner’s] perform-
ance”; that its factual inaccuracies “indicate[d] a preju-
dicial state of mind . . . toward [petitioner] . . . | which]
was evidently due to the Vietnam assignment and the
[petitioner’s] attempt to avoid it by submitting his resig-
nation”; and that the low rating it contained was the
“major factor” in petitioner’s failure to secure promo-
tion. A. 28a, 49a, 52a.
In light of these facts, the trial judge ruled that pe-
titioner had been deprived of his right to be evaluated
for promotion on the basis of a record which fairly por-
trays his career, and that the correction board’s decision
not to void the OER was “unsupported by substantial
evidence and. . . contrary to law.” A. 29a-3la. He
recommended that, as relief, petitioner receive back pay
for the duty he would have performed had he not been
discharged on November 1, 1973, back retired pay, and
correction of his military records to void the contested
OER and documents showing his failures to secure pro-
motion. A. 3la-32a, 57a-58a.
16 For example, the trial judge found misleading various state-
ments made by Lt. Colonel Williams concerning the extent to which
petitioner’s test reports had to be revised prior to publication in
final form. Although petitioner’s reports had to be to some extent
“worked over” by petitioner and a group of fellow officers after
their initial submission, such “working over” of draft reports was
the customary procedure for all draft submissions at Fort Greeley
and, in any event, petitioner’s work never had to be modified in any
substantial way. A. 51a, 55a.
13
7. Court of Claims Decision. On review, a panel of
the Court of Claims (Judges Kashiwa, Bennett, and
Smith) reversed. Although acknowledging that peti-
tioner “was not granted a hearing until he came to the
court,” it concluded that the trial judge “in his zeal to
do justice as he saw it . . . innocently went beyond the
permissible scope of review . . . by substituting his
judgment of [petitioner’s] performance of duty for that
of [petitioner’s] rating and indorsing officers, reflected
on the OER, which constituted substantial evidence be-
fore the board.. . A. 2a, 16a. In this regard, the
Court of Claims held that “[i]t is the rater’s view that
counts in the end,” and “there [was] no concession by
the rater or indorser [at trial] that the rating was
factually wrong.” The court held that it was error to
weigh against the OFR “self serving testimony,” such
as records concerning petitioner’s career, commendations
he received for the assignment at issue in the OER, or
the testimony of himself, his wife, and Captain Cook.
A. 12a, 16a. Moreover, in its view, the correction board’s
decision could be deemed based on “substantial evidence,”
even though that board made its decision without the
benefit of the evidence ultimately adduced on trial—
including Lt. Colonel Williams’ refutation of remarks
contained in the OER and his ex parte statement—evi-
dence which convinced the trial judge that the correction
board’s decision was unsupported by the requisite evi-
dence. A. 13a-16a.
REASONS FOR GRANTING THE WRIT
A. THE COURT OF CLAIMS’ DECISION BELOW IS
IMPORTANT, WILL HAVE BROAD IMPACT, AND
CONFLICTS WITH CIRCUIT COURT RULINGS.
In the following sections of this petition, we show in
some detail that the scope of review applied by the Court
of Claims in the correction board context is a substantial
departure from well-accepted principles of administra-
tive law as enunciated in the APA and the decisions of
this Court. It also conflicts with Congress’ remedial pur-
14
poses in establishing the correction board system and
negates procedural due process rights otherwise afforded
by the Fifth Amendment. In this regard, we show that,
as a practical consequence of the decision below, a plain-
tiff can prevail in these cases only if the government
confesses error as to the accuracy of a military record.
Our point here is that the issues raised by the decision
below have broad impact. The critical statutory remedy
standing between those Americans who have been or are
under arms to this Nation and a prejudicial error in
their military records is the relief afforded by the mili-
tary services’ civilian correction boards and, when back
pay and retirement benefits in excess of $10,000 are in-
volved, the corresponding review of board decisions in
the Court of Claims. See n. 6, swpra. While other courts
have occasion to review correction board decisions, the
Court of Claims is the principal forum for these cases,
because of the substantial breadth of its jurisdiction. As
the D.C. Circuit has acknowledged: “The most pertinent
judicial decisions interpreting the nature of these Boards
have arisen in litigation before the United States Court
of Claims.” Ogden, supra, 298 F.2d at 315. Accordingly,
when the Court of Claims describes this case as raising
“important questions concerning [its] jurisdiction and
permissible scope of review,” it acknowledges that the
issues raised are of general importance, and thus worthy
of this Court’s attention.
Finally, as we show below, the restrictive scope of
review enunciated by the Court of Claims in this case
places it at odds with at least one Circuit’s rulings
on the way in which correction board decisions should be
judicially reviewed. See pp. 18-19, infra.
B. THE COURT OF CLAIMS’ USE OF A SUBSTAN-
TIAL EVIDENCE TEST TO REVIEW FACTS
FOUND DE NOVO AFTER TRIAL CONFLICTS
DIRECTLY WITH DECISIONS OF THIS COURT.
1. Right To Trial De Novo. The Court of Claims has
recognized that, by enacting the correction board statute
(10 U.S.C. § 1552), Congress imposed upon correction
15
boards “a duty as well as the power to afford service-
men proper relief.” Sanders, supra, 594 F.2d at 812
(emphasis added). Yet, that court has also recognized
that, despite the critically important role played by these
boards and subsidiary military fact finding tribunals in
military pay cases, the correction process is fraught with
procedural infirmities. See, e.g., Brown v. United States,
396 F.2d 989, 994-99 (1968). The facts of this case
clearly illustrate the point."
Because of these infirmities, the Court of Claims has
long held that [iln military pay cases such as this
judicial review is not limited to the administrative rec-
ord,” and that a plaintiff, “in this court, is entitled to
a trial on the merits, as a matter of right, so that he
may have a judicial determination of the disputed factual
issues involved in his claim.” Bray, supra, 515 F.2d at
1390 (emphasis added). Accord, McGahey v. United
States, 213 Ct. Cl. 717, 719 (1977) ; Montilla v. United
17 As we have shown in the statement above, petitioner, contrary
to Army regulations, was not informed of the identity of his OER
rater prior to the preparation of the OER here in dispute, and the
rater was, in fact, an officer for whom petitioner had not worked.
Neither the OER rater nor indorser had ever conveyed any criti-
cism to petitioner while he was at Fort Greely. Indeed, petitioner
did not learn of the adverse OER until four years after it had been
rendered, and thus subsequent to its use by an Army selection
board determining his fitness for promotion.
Petitioner was accorded no opportunity for a hearing in order
to refute the OER before the selection boards which passed him
over for promotion. Nor was he entitled to an oral hearing before
the special review board which reviewed the accuracy of his OER.
Indeed, the review board resolved his claim on the basis of an
unsigned case summary, which, in turn, was premised almost
exclusively upon an ex parte telephone call to the OER indorser.
The correction board also denied petitioner’s application in execu-
tive session without granting him an oral hearing and relied, for
its decision, upon the review board’s analysis. Indeed, on the same
day it considered and disposed of petitioner’s application, it con-
ducted three “formal” hearings and resolved 110 applications for
the correction of militiary records. The substantive analysis of
petitioner’s requests for relief by both the review board and the
correction board consumed only a single page of discussion.
16
States, 457 F.2d 978, 982-83 (Ct. Cl. 1972); Brown,
supra, 396 F.2d at 992-1001; Beckham v. United States,
375 F.2d 782, 785 (Ct. Cl. 1967). In this regard, the
Court of Claims has concluded that the “non-adversary
records of the kind we have before us in a large segment
of the [correction board] cases cannot form the sole basis
for a judicial decision. They are too infirm and incom-
plete.” Brown, supra, 396 F.2d at 997 (emphasis added).
See also, e.g., Camp v. Pitts, 411 U.S. 138, 142 (1973);
Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 415 (1971) (sanctioning the taking of de novo
evidence when “agency fact finding procedures are in-
adequate”). Thus, in the Court of Claims’ view, intro-
duction of de novo “evidence has proved invaluable in
fully understanding and evaluating the basis—or dack of
basis—for the administrative decision.” Brown, supra,
396 F.2d at 997. Accordingly, a trial de novo was held
below without any objection from the government.
2. De Novo Scope of Review. Decisions of this Court
clearly establish that a trial court reviewing agency
action de novo “should make an independent determina-
tion” of the facts based upon the evidence adduced be-
fore it. United States v. First City National Bank, 386
U.S. 361, 368 (1967). Accord, Citizens to Preserve
Overton Park, Inc., supra, 401 U.S. at 415 (de novo
review entails “independent judicial factfinding”) ; Wood-
by v. Immigration & Naturalization Service, 385 U.S.
276, 278 n. 2 (1966) (de novo review entails an “inde-
pendent determination of the factual issues. See
also, e.g., Chandler v. Roudebush, 425 U.S. 840, 852-64
(1976). Indeed, in Renegotiation Board v. Bannercraft
18 This Court has also held in this regard that while adminis-
trative findings “may, of course, be admitted as evidence” in the
judicial proceedings, Chandler, supra, 425 U.S. at 863-64 & n.39;
Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 & n.21 (1974),
such findings will be “accorded [only] such weight as the court
deems appropriate” after a consideration of all evidence pre-
sented. Id. at 60; Weahkee v. Perry, 587 F.2d 1256, 1263 (D.C.
Cir. 1978) (Robb, J.).
*
17
Clothing Co., 415 U.S. 1, 23 (1974), this Court explicitly
recognized that a “de novo proceeding” in the Court of
Claims is one “unfettered by any prejudice from the
agency proceeding and free from any claim that the
[agency’s| determination is supported by substantial evi-
dence. ... [T]he parties are not bound by a prior de-
termination made at [the agency] level. (Emphasis
added.) The Court of Claims, by virtue of its own rules,
has acknowledged these precepts by mandating that
“(djue regard [be given] to the circumstances that the
trial judge had the opportunity to evaluate the credibility
of the witnesses,” and by requiring that “the findings
made by the trial judge shall be presumed to be correct.”
Ct. Cl. Rule 147(b).
3. Substantial Evidence Test Applied to De Novo
Findings. Had the Court of Claims followed this Court’s
explicit precedents pertaining to de novo review, there
can be little doubt that the trial judge’s decision in this
case would have been affirmed. But the Court of Claims
has refused to permit its trial judges in military pay
cases to make a “fresh determination of the facts and
issues” even though de novo evidence has been taken.
Weahkee, supra, 587 F.2d at 1263. Instead, that court,
contrary to this Court’s direction that Court of Claims’
de novo review should be “free from any claim that the
[agency’s] determination is supported by substantial evi-
dence,” has insisted upon “applying its substantial evi-
dence test to the findings of the Board.” Beckham, supra,
375 F.2d at 785. Accord, Brown, supra, 396 F.2d at 992;
Bray, supra, 515 F.2d at 1391. The Court of Claims
therefore felt it sufficient to conclude in this case that
the Officer Efficiency Report (“OER”) in question “con-
stituted [the] substantial evidence” (A. 18a) upon which
the correction board decision could be sustained and held
that the trial judge erred in considering any de novo evi-
dence to the contrary.
It has been widely acknowledged that the Administra-
tive Procedure Act (“APA”) governs review of civilian
18
correction board decisions. See, e.g., Neal v. Secretary of
Navy, 639 F.2d 1029, 1036 (3d Cir. 1981); Roelofs v.
Secretary of Air Force, 628 F.2d 594, 599 (D.C. Cir.
1980); Buchanan v. United States, 621 F.2d 373, 384
(Ct. Cl. 1980) ; Sanders, supra, 594 F.2d at 812. Section
706 (2) (E) of that Act makes clear that the “substantial
evidence” test is used only when a court is reviewing
agency fact finding made pursuant to a trial-type hearing
required by statute. Camp v. Pitts, supra, 411 U.S. at
140-41; Citizens To Preserve Overton Park, Inc., supra,
401 U.S. at 414-15. No statute required that petitioner
be granted an adjudicatory hearing before the correction
board, and, to say the least, the consideration afforded
to his application for correction cannot be characterized
as a formal, trial-type proceeding. The Court of Claims’
use of the substantial evidence test in situations such as
the present case, where a de novo trial is necessitated
because the record presented to that court is “too infirm
and incomplete,” Brown, supra, 396 F.2d at 997, con-
stitutes a dramatic departure from the mandates of the
APA and the requirements of this Court.
The use of the substantial evidence test in this type of
situation is aggravated by the Court of Claims’ ruling in
this case which, as we show in detail in the following
section, effectively sustains the correction board except
in those rare instances where the government has con-
fessed that a military record is inaccurate. As a result,
the de novo trial afforded in § 1552 cases in the Court of
Claims is rendered almost meaningless since, absent a
concession of error, none of the plaintiff’s evidence can
be considered to determine whether the correction board
should be overturned.
As a result of the Court of Claims’ decision below, there
now exists among federal appellate courts a wide diver-
gence of opinion concerning the scope of review of correc-
tion board decisions. The Third and Ninth Circuits have
ruled that de novo trials should not be granted by district
courts reviewing correction board decisions. Ragoni v.
United States, 424 F.2d 261, 263 (3d Cir. 1970); San-
19
ford v. United States, 399 F.2d 693, 694 (9th Cir. 1968).
Yet, the Fifth Circuit affords de novo trials in this
context. Nolen v. Schlesinger, 492 F.2d 787 (5th C*r.
1974). The Court of Claims grants de novo trials “as a
matter of right,” Bray, supra, 515 F.2d at 1390, but,
by virtue of the restrictive scope of review enunciated
in this case, renders these proceedings virtually meaning-
less. See pp. 19-23, infrau.“
This substantial confusion within the federal appellate
courts as to the manner in which to review correction
board decisions makes the Court of Claims’ decision at
issue fully worthy of this Court’s attention.
C. THE COURT OF CLAIMS’ REFUSAL TO EXAMINE
CORRECTION BOARD DECISIONS ON THE BASIS
OF THE “WHOLE RECORD” CONFLICTS WITH
THE APA AND DECISIONS OF THIS COURT.
Even if application of the substantial evidence test
were appropriate here, the Court of Claims has seriously
misapplied it. Section 706 of the APA provides that,
when using the substantial evidence test to determine the
adequacy of agency fact finding, a court must “review the
whole record or those parts of it cited by a party... .”
(Emphasis added.) This provision was included within
the APA to defeat the pre-APA practice employed by
19In Nolen, the Fifth Circuit, in granting de novo review, at-
tempted to harmonize its ruling with the Ninth Circuit’s Sanford
decision (denying de novo proceedings) on the ground that the
evidence the plaintiff sought to adduce in Sanford concerned issues
not raised before the correction board. 492 F.2d at 787. In San-
ford, however, the Ninth Circuit squarely held that the trial
“court’s function . . [is] confined to a review of the evidence
submitted to the [Army] Board for Corrections.” 399 F.2d at 694.
On remand, the Nolen court, although applying a substantial
evidence test to the de novo record for purposes of determining the
validity of the Board’s findings, made clear by its analysis that
courts reviewing correction board determinations must examine
the entire administrative and de novo record before reaching a
decision, and thus, its analysis conflicts with that of the Court of
Claims. Nolen v. Rumsfeld, 525 F.2d 888, 889-90 (5th Cir. 1976),
cert. denied, 429 U.S. 1104 (1977).
20
some courts, which was to “ ‘read only one side of the
case and, if they [found] any evidence there, the admin-
istrative action [was] sustained and the record to the
contrary ignored.’” Schwartz, Administrative Law § 210
at 593 (1976) (quoting Report of the Attorney General’s
Committee at 210-11 (1941)) (emphasis added). Under
“this [pre-APA] interpretation, substantial evidence
meant, in effect, such evidence as standing alone would be
sufficient to support a finding,” no matter “how heavily
the countervailing evidence [might] preponderate .. . .”
Id. (Emphasis added.)
In the landmark case of Universal Camera Corp v.
NLRB, 340 U.S. 474, 487-88 (1951), this Court em-
phatically rejected the so-called “any” evidence test,
stating:
“Whether or not it was ever permissible for courts
to determine the substantiality of evidence support-
ing [an agency] decision merely on the basis of
evidence which in and of itself justified it, without
taking into account contradictory evidence or evi-
dence from which conflicting inferences could be
drawn, the [APA] definitively precludes such a
theory of review and bars its practice. The sub-
stantiality of evidence must take into account what-
ever in the record fairly detracts from its weight.
This is clearly the significance of the requirement
. . that courts consider the whole record.” (Em-
phasis added.)
By virtue of the decision below, the Court of Claims,
contrary to the holding of Universal Camera Corp., has
reverted to the practice of upholding agency fact finding
whenever the record contains “any” evidence to support
the agency decision. Thus, en route to its decision con-
cerning the substantiality of the evidence before the
correction board, the Court of Claims focused al-
most exclusively upon the very document in dispute and
characterized as error the trial judge’s consideration of
evidence refuting it.
The Court of Claims discounted any examination in
cases of this sort of such documentary evidence as “the
21
Army Electronics Command commendation of [petition-
er's] work and the letter by [his] commander, Col. Na-
bors, which forwarded that commendation to plaintiff” on
the ground that [t] hose personnel were not legally re-
sponsible for . . making an evaluation of that work for
the military,” (A. 13a) “ and dismissed as “self serving”
(A. 16a) the testimony of petitioner, his wife, and Captain
Cook—all of which contradicted the indorser’s ex parte
comments that petitioner had “spent most of [his] time
and energy attempting to get out of the Nam assign-
ment,” “practically quit work,” and possessed a very
negative attitude. See pp. 8, 10, supra. Finally, the
Court of Claims characterized as “slight variations” (A.
15a) from the record before the correction board, Lt.
Colonel Williams’ concessions at trial that petitioner had,
in fact, completed his assignments, that the final reports
submitted to the Army Test and Evaluation Command
were authored by petitioner, and that Lt. Colonel Wil-
liams had no personal knowledge of petitioner spending
his “time and energy attempting to get out of the Nam
assignment.” See pp. 11-12, supra.
In dismissing, for purposes of correction board review
cases, the worthiness of such evidence as Captain Cook’s
testimony discrediting petitioner’s OER and petitioner’s
commendations from superiors generously praising his
work, the Court of Claims conveniently chose to ignore
the fact that presentations of this nature are exactly the
kind of evidence required by Army regulations to demon-
state an inaccuracy in an OER.”
20 This highly technical conclusion disregards the obvious fact
that as commander of Arctic Test Center, Col. Nabors had “legal
responsibility” for evaluating petitioner’s work and, indeed, was
quite familiar with it in that he directly oversaw the preparation
of petitioner’s OER for the period immediately preceding the rating
period in question. PX. 27.
21 AR 623-105 (1974) provided that an officer, in order to in-
validate an OER, had to provide “statements from third parties
who were in official positions which enabled them to observe
directly the manner in which the [rated officer] performed his
In short, the Court of Claims, in express contradiction
of this Court’s mandate in Universal Camera Corp., held
that its trial judges should “determine the substantiality
of the evidence” by relying upon only the “evidence
which in and of itself justified” the correction board de-
cision, and should refuse to “tak[e] into account contra-
dictory evidence or evidence from which conflicting in-
ferences could be drawn.“ 340 U.S. at 487-88. Indeed, the
Court of Claims expressly criticized the trial court for
doing exactly that which Universal Camera requires,
taking] into account whatever in the record fairly de-
tracts from” the evidence upon which the agency relied.
Id.”
duties during the rated period, and/or other pertinent documentary
evidence from official sources.” Id., § 8-1(c). The current version
of AR 623-105 calls for a substantially similar evidentiary showing.
AR 623-105 at §9-7(c) (1979).
22 The harshness of the Court of Claims’ application of the
substantial evidence test below is illustrated most clearly by its
total disregard of the trial judge’s finding that “the evidence in
the record does not disclose any factor, other than the unfair and
unjust OER .. „ which might have caused the plaintiff's pass-overs
[for promotion] by the. . . selection boards.” A. 30a. This finding
was supported, inter alia, by the conclusion within the unsigned
case summary before the Army Special Review Board that it
appeared that the “contested report was a major factor in his
non-selection.” PX. 93 at 4. (En phasis added.)
The Court of Claims concluded on review that there was no
“clear nexus“ between the OER and plaintiff's passovers by the
selection boards. A. 16a-17a. Yet, it was not able to point to any
evidence in the record suggesting that there were other factors
involved in petitioner’s failure to be promoted. In any event, the
Court of Claims has frequently held that the “most critica] item in
an officer’s selection folder is his OER,” Skinner v. United States,
594 F.2d 824, 831 n.4 (1979) and that once it is found that an
OER is in error, the burden is on the government to show by
“substantial evidence . that it was unlikely that the officer
would have been promoted in any event.’” Riley v. United States,
608 F.2d 441, 444 (1979) (quoting Sanders, supra, 594 F.2d at
818). Again, no evidence was introduced or relied upon at any level
of review showing that anything other than the adverse OER
formed the basis of petitioner’s failure to be promoted.
23
In applying this unduly restrictive standard of re-
view, the Court of Claims correctly recognized that
t jhe cold reality of the situation is that it will always
be difficult to overcome the discretionary judgments and
evaluations by the rater and indorser....” A. 15a. It
suggested that the only evidence which could refute an
OER would be a “concession by the rater or indorser
that the rating [is] factually wrong.” A. 16a. Indeed,
under the Court of Claims’ scope of review, the “cold
reality” is that, unless the government confesses error,
review of correction board factual determinations as to
the accuracy of a military record is “a hopeless formality
for the litigant. . . . It reduces the judicial process in
such cases to a mere feint.“ SEC v. Chenery Corp., 332
U.S. 194, 210 (1947) (Jackson, J., dissenting).
On the one hand, the Court of Claims has determined
that service personnel have a right to a trial de novo on
appeal from correction board determinations because:
(1) “the administrative record consists, as here, simply
of the official military records plus the written materials” ;
(2) even when oral hearings are granted by the correc-
tion board, they are not “adversary with the right to cross
examine all opposing witnesses . . . as is now normal for
the regulatory agencies and the boards of contract ap-
peals”; and (3) de novo “evidence has proved invaluable
in fully understanding and evaluating the basis—or lack
of basis—for the [board] decision.” Brown, supra, 396
F.2d at 995, 997, 998. By virtue of the decision at issue,
however, the Court of Claims has removed completely the
meaningfulness of a de novo proceeding because the cor-
rection board will always be sustained unless the evi-
dence supporting that tribunal’s determination “carries
its own death wound.” NLRB v. Robbins Tire & Rubber
Co., 161 F.2d 798, 800 (5th Cir. 1947).
The Court of Claims’ departure from the accepted
method of applying the substantial evidence test is a fur-
ther issue deserving the attention of this Court.
24
D. THE RESTRICTIVE SCOPE OF REVIEW APPLIED
BELOW CONFLICTS WITH THE REMEDIAL IN-
TENT OF CONGRESS IN ESTABLISHING CIVIL-
IAN CORRECTION BOARDS.
The Court of Claims has frequently held that the duty
imposed upon correction boards to correct “errors” and
“injustices” in military records constitutes “ ‘an abiding
moral sanction to determine insofar as possible, the
true nature of an alleged injustice and to take steps to
grant thorough and fitting relief.’” Sanders, supra, 594
F.2d at 813 (quoting Duhon v. United States, 461 F.2d
1278, 1281 (Ct. Cl. 1972)) (emphasis added). It has, ac-
cordingly, been emphasized that the correction board stat-
ute is “remedial and to be liberally construed, rather than
[read] narrowly or technically,” Oleson, supra, 172 Ct. CI.
at 18.
The scope of review applied by the court below flies in
the face of the remedial purposes of § 1552. The Court
of Claims has concluded that a correction board finding
that there is no “error” or “injustice” in an OER can be
overturned only if military personnel demonstrate a
gross material error of fact?” or a “gross injustice”
in the board’s decision, by showing, for example, “a con-
cession by the rater or indorser that the [OER] was
factually wrong.” A. 15a, 16a (quoting Sanders, supra,
594 F.2d at 813 and Skinner, supra, 594 F.2d at 830)
(emphases added). In effect, then, through its restric-
tive scope of review the Court of Claims has substantially
narrowed the situations involving errors or injustices in
which it will grant relief. The Court of Claims has thus
ignored the standards established in § 1552 and de-
feated completely Congress’ remedial intent in enacting
that provision.
Given the importance of § 1552 to service personnel and
the predominant role the Court of Claims plays in that
statute’s construction, the question whether that court
can alter the terms of § 1552 by application of a scope of
25
review test is a matter which should also be addressed by
this Court.
E. THE RESTRICTIVE SCOPE OF REVIEW APPLIED
BY THE COURT BELOW NEGATED PETITION-
ER’S DUE PROCESS RIGHT TO AN ORAL HEAR-
ING AND TO CONFRONT ADVERSE WITNESSES.
A majority of this Court has concluded that federal
civil service employees, because they can be discharged
only “for cause,” have a property interest in continued
employment sufficient to trigger due process protections.
Arnett v. Kennedy, 416 U.S. 134, 166 (1974) (Powell,
J., concurring) ; id. at 185 (White, J., concurring and
dissenting) ; id. at 209 (Marshall, J., dissenting). See
also Rolles v. Civil Service Comm’n, 512 F.2d 1319, 1327
& nn.20-21 (D.C. Cir. 1975) (Wilkey, J.) (construing
Arnett). Army officers, such as petitioner, below the
rank of lieutenant colonel have employment entitlements
similar to those granted civil service employees. While
the statute under which petitioner was terminated man-
dated the discharge or retirement of any officer twice
passed over for promotion to captain, major, or lieutenant
colonel (10 U.S.C. § 3303 (d) (1976)), Congress, when
enacting that provision, made it clear that the promotion
system was intended “to force out incompetent officers
only” and that “every qualified Army officer is, in effect,
assured of a career up to and including lieutenant colonel
grade. H.R. Rep. No. 640, Soth Cong., Ist Sess.,
reprinted at [1947] U.S. Code Cong. Serv. 1647, 1651.“
23 Indeed, the record below shows that, during a period recog-
nized by the Court of Claims as “highly competitive” for Army
officers, Sanders, supra, 594 F.2d at 821 (Nichols, J., concurring),
the three selection boards which passed over petitioner promoted,
respectively, 90.6, 82.1, and 80.8 percent of the candidates con-
sidered by them for promotion for the first time. A. 17a.
2 Section 3303(d), under which petitioner was terminated, was
recently repealed by § 204 of the Defense Officer Personnel Man-
agement Act and replaced by new statutory provisions which con-
tinue to require that twice-passed over officers be discharged or
Given this entitlement, due process requires, at the
very least, that petitioner be accorded the right to a full
post-termination trial to challenge the lawfulness of his
termination when his case is in a reviewing court.”
While the Court of Claims, on wholly separate grounds
(see pp. 14-16, supra), affords such a hearing, it has,
by refusing to give any weight to petitioner’s case, ren-
dered this procedural protection meaningless.
The question whether military personnel are entitled
to any procedural due process upon termination from the
armed services has been the subject of much debate in the
lower courts.“ The conflicting approaches by federal
retired. See note 13, supra. Under the new statute, however, if on
the date an officer would otherwise be discharged pursuant to these
provisions, he is within two years of qualifying for retirement, he
must be retained until qualified for retirement. Id., § 105, 10
U.S. C. A. §§ 631(a) (3), 632 (a) (3) (West Supp. 1980). Moreover,
captains and majors twice passed up for promotion may, in the
discretion of the Secretary and subject to the needs of the military,
be continued on active duty. Id., 10 U.S.C.A. § 637 (a). This new
statute thus provides expectations of continued employment over
and above the entitlements granted under pre-1980 law, which
“assured” competent officers “a career up to and including lieu-
tenant colonel grade.” [1947] U.S. Code Cong. Serv., supra, at 1651.
25 See, e.g., Vitek v. Jones, 445 U.S. 480, 494-97 (1980) (ad-
versarial hearing must be provided to prisoner prior to his in-
voluntary transfer to State mental hospital); Ingraham v. Wright,
430 U.S. 651, 672, 674-82 (1977) (due process is satisfied where
students subject to corporal punishment have available common law
judicial remedies to redress injuries should punishment be exces-
sive); Wolff v. McDonnell, 418 U.S. 539, 563-68 (1974) (prior to
taking of disciplinary actions against prisoners, prisoners must be
provided oral hearing with right to call witnesses and present
documentary evidence in their defense); Morrissey v. Brewer,
408 U.S. 471, 487-90 (1972) (prior to revocation of parole, parolee
must be accorded opportunity for adversarial hearing).
26 Compare Neal, supra, 639 F.2d at 1041 n.12 (dictum) (sug-
gesting due process rights); Buchanen, supra, 621 F.2d at 375-
80 (dictum) (showing entitlement to continued employment of
regular and reserved Naval officers); Rolles, supra, 512 F.2d at
1326-28 & n.19 (D.C. Cir. 1975) (dictum) (Wilkey, J.) (§ 1552
27
courts to this issue and the issue’s interrelationship with
the scope of review applied below are additional reasons
why this question is worthy of resolution by this Court.
CONCLUSION
For the foregoing reasons, this petition for a writ of
certiorari should be granted.
Respectfully submitted,
I. MICHAEL GREENBERGER *
MICHAEL S. GIANNOTTO
SHEA & GARDNER
1800 Massachusetts Ave., N.W.
Washington, D.C. 20036
(202) 828-2000
NEIL B. KABATCHNICK
Suite 860
1800 M Street, N.W.
Washington, D.C. 20036
(202) 872-1051
Attorneys for Petitioner
* Counsel of Record
Of Counsel:
SHEA & GARDNER
1800 Massachusetts Ave., N.W.
Washington, D.C. 20036
October 10, 1981
procedures are “constitutionally suspect”); Suro v. Padilla, 441
F. Supp. 14 (D.P.R. 1976) (finding due process right) with Lane
vy. Secretary of Army, 504 F. Supp. 39 (D. Md.), aff'd mem.,
639 F.2d 780 (4th Cir. 1980) (no right); Blevins v. Plummer,
613 F.2d 767 (9th Cir. 1980) (no right); Diliberti v. Brown, 583
F.2d 950 (7th Cir. 1978) (no right); Knehans v. Alexander, 566
F.2d 312 (D.C. Cir. 1977), cert. denied, 435 U.S. 995 (1978) (no
right); Pauls v. Secretary of Air Force, 457 F.2d 294 (ist Cir.
1972) (dictum) (no right). See also Colm v. Vance, 567 F.2d
1125, 1127-32 (D.C. Cir. 1977) (remand in similar statutory con-
text (i.e., foreign service officers) for property right determina-
tion). For a scholarly analysis contending that regular Army
officers are entitled to procedural due process, see Ford, Officer
Selection Boards and Due Process of Law, 70 Military L. Rev.
137 (1975).
xipuaddy
— |
f ourt, U.S.
R 1 — 6 s 5 Office 1 3
No. 81- ocT 9 1981
ALEXANDER L. STEVAS.
IN THE CLERK
Supreme Court of the United States
OCTOBER TERM, 1981
JOHN M. GRIEG,
Petitioner,
v.
UNITED STATES OF AMERICA
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF CLAIMS
I. MICHAEL GREENBERGER *
MICHAEL S. GIANNOTTO
SHEA & GARDNER
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036
(202) 828-2000
NEIL B. KABATCHNICK
Suite 860
1800 M Street, N.W.
Washington, D.C. 20036
(202) 872-1051
Attorneys for Petitioner
* Counsel of Record
Of Counsel:
SHEA & GARDNER
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036
October 10, 1981
— — —
WILSON - Erts PrinTtiNG Co.. INc. - 789-0096 - WASHINGTON. D.C. 20001
APPENDIX TABLE OF CONTENTS
A. Grieg v. United States, No. 258-78 (Ct. Cl., January
28, 1981)
Grieg v. United States, No. 258-78 (Tr. Div. Ct. Cl.,
April 14, 1980) 6 T
In re: Grieg, (Army Board for Correction of Mili-
tary Records, 1977) 9 od
. Letter to John M. Grieg from Major J. Slone, Eval-
uation Report Branch, U.S. Army Military Person-
nel Center (February 27, 1974) (informing peti-
tioner of decision of Army Special Review Board)..
. Grieg v. United States, No. 258-78 (Ct. Cl., May 15,
1981) (denying petitioner’s motion for rehearing
and rehearing en bane)
Grieg v. United States, No. A-80 (U.S. Sup. Ct.
August 3, 1981) (extending time to file — for
writ of certiorari)
G. Excerpts from Relevant Statutes
. Excerpts from Department of the Army Regula-
7
. Excerpts from S. Res. 274, 96th Cong., Ist Sess.,
125 Cong. Rec. 816588 (daily ed. Nov. 14, 1979),
as amended by S. Res. 389, 96th Cong., 2d Sess., 126
Cong. Rec. 82942 (daily ed. March 25, 1980)
Page
la
67a
la
APPENDIX A
IN THE UNITED STATES COURT OF CLAIMS
No. 258-78
(Decided January 28, 1981)
JOHN M. GRIEG
v.
THE UNITED STATES
Neil B. Kabatchnick, attorney of record, for plaintiff.
Louis R. Davis, with whom was Assistant Attorney
General Alice Daniel, for defendant. Lynn J. Bush, at-
torney of record. Major Scott Magers, Department of
the Army, of counsel.
Before KASHIWA, BENNETT, and SMITH, Judges.
OPINION
BENNETT, Judge, delivered the opinion of the
court:
This is a military pay case in which plaintiff seeks to
have the court void an OER and then grant further re-
lief as a result of that correction of plaintiff’s military
records. We conclude that it would be improper to void
the OER. Therefore, we hold for defendant. In doing
so, we reverse the decision of the trial judge but accept
2a
most of his findings. Such findings of fact as are neces-
sary to our decision are stated herein. This case again
presents to the court important questions concerning our
jurisdiction and permissible scope of review. It is on the
interpretation and application of guidelines which have
been laid down for the resolution of these cases that we
respectfully differ with the learned trial judge. We think
he has exceeded the court’s authority. On the appealing
facts of plaintiff’s case, it is tempting to do so. But,
we must be ever mindful that this is a court of limited
jurisdiction.
Plaintiff entered on extended active duty on October 4,
1958, as a second lieutenant in the Army Reserve. He
served on active duty thereafter continuously until No-
vember 1, 1973, reaching the rank of temporary
major. He was an officer in the Regular Army almost
all of this time and achieved a record noted for com-
petent and faithful discharge of duty. He was dis-
charged on November 1, 1973, pursuant to statute, after
he was twice considered but not selected for promotion
to the permanent grade of major. His claim is that the
promotion nonselections were due to an erroneous officer
effectiveness report (OER) covering the period from
November 17, 1967, to February 20, 1968. He seeks back
pay, correction of his records, promotion, placement on
the retired list, and ancillary relief. Plaintiff has sought
and been denied administrative relief by the Army under
AR 623-105 and by the Army Board for the Correction
of Military Records. The board considered plaintiff's
application in executive session. He was not granted a
hearing until he came to the court. His suit is timely.
The court rejects the trial judge’s findings numbered 43(c)
through 43(i), 44, 48(b) through 48(k), and his conclusion of law.
The court’s task in review of the record has been made unneces-
sarily difficult by defendant's failure to comply with our Rule
143(c) which requires that, “At the end of each exception to find-
ings of fact, appropriate references shall be made to the parts of
the record relied upon in support thereof.”
Plaintiff was an Infantry officer who performed two
tours of duty in Vietnam, and as leader of a Special
Forces team was awarded the Bronze Star Medal, among
others. Thereafter, and after completing an advanced
Infantry officer career course at Fort Benning, Georgia,
he was assigned to the Army Arctic Test Center at Fort
Greely, Alaska. There he was made a test officer in the
Infantry Airborne and Individual Equipment Test Divi-
sion. Lt. Col. Alfred E. Williams was his division chief.
Maj. Herbert Lee Gregg was senior test officer of the
division and was plaintiff's OER rater. Lt. Col. Wil-
liams was plaintiff’s OER indorser.
While at Fort Greely in August 1967, plaintiff re-
ceived alert orders that he was being assigned to Viet-
nam for a third tour there and that he was to report
no later than December 28, 1967. Plaintiff’s wife and
infant child had accompanied him to Fort Greely. His
wife was upset at the prospect of a third tour in Viet-
nam because she was expecting another child in Decem-
ber 1967. She also knew of other officers who had not
been called upon to do so much duty in Vietnam and
resented what she believed was unjust treatment of her
husband. Plaintiff was made aware of these feelings in
no uncertain terms and, agreeing with her, tendered his
resignation from the Army. The resignation was not
accepted because of the continuing military need for his
special qualifications. However, supplemental orders
were issued changing his reporting date for the Vietnam
assignment to March 25, 1968. He performed that third
tour with distinction, winning two Oak Leaf Clusters
for his Bronze Star.
There is no dispute about the high quality of plaintiff’s
service prior to receipt of the Vietnam alert notice. The
OER rendered on his performance of duty from Novem-
ber 17, 1967, to February 20, 1968, however, contained
some criticism. While praising plaintiff’s superior tech-
4a
nical competence and stating that in the rating period
he had performed his assigned duties in a superior man-
ner, the rater’s comment also stated, in pertinent part:
After the tests were completed, MAJ Greig failed
to prepare the reports of tests in the proper format
or within the required time frame. When ques-
tioned about the progress that he was making on
the reports, he displayed a very negative attitude.
Plaintiff’s indorser, Lt. Col. Williams, added the fol-
lowing comments on the OER:
MAJ Grieg was a superior officer until he received
his orders to Vietnam. The last 30 days that he was
assigned to this Test Division his dependability was
seriously affected. He conducted two arctic service
tests during the test season and gathered adequate
test data. One of the test reports he wrote had to
be completely rewritten by other officers of this Test
Division; the other test report had to have major
modifications and corrections made on it. MAJ
Grieg is capable of producing superior test reports
as indicated by the reports he submitted for the
previous test season. During MAJ Grieg’s last 30
to 45 days that he was assigned to this test division
he displayed a very negative attitude toward the
The rater and indorser testified at the court trial and
reiterated their views as expressed on plaintiff’s OER.
Plaintiff’s testimony denied the factual accuracy of these
comments and represented that because of his prospective
departure from the Test Center that he, in fact, acceler-
ated his work and completed it in proper form and content
well before his scheduled departure date, and in sufficient
time for its review by the division review board. At the
trial, plaintiff’s testimony was supported by that of a
former subordinate, Jack C. Cook, Jr., and by Mrs. Grieg.
5a
It is a fact that the review board found with respect to
one of plaintiff’s reports that it should include certain ad-
ditional data plaintiff had developed, and amended it ac-
cordingly. Also, the reports were prepared in final form
for distribution prior to plaintiff’s departure from the
Test Center.
The Army Electronics Command in a communication
dated February 5, 1968, commended plaintiff’s perform-
ance, referring among other things to his “great personal
sacrifice’ and to the “outstanding manner“ in which
plaintiff and his assistant cooperated to prevent delay
and overcome technical difficulties. The communication
concluded with the statement, “The very eminently satis-
factory manner in which this mission was accomplished
reflects most highly on Major Grieg’s * * * capabilit[y]
and * * * devotion to our nation’s defense.” The fore-
going commendation was forwarded to plaintiff by the
commanding officer of the Test Center, Col. Nabors, with
a covering communication which praised plaintiff’s per-
formance and congratulated him “for a job outstandingly
well done.”
Plaintiff was considered but not selected for promotion
to the permanent grade of major by Army selection
boards that convened on January 24, 1972, and January
31, 1973. He was passed over for promotion to the tem-
porary grade of lieutenant colonel, AUS, by a selection
board that convened on September 5, 1972. Pursuant
to law he was therefore discharged on November 1, 1973.
On plaintiff’s application he was appointed a major in
the Army Reserve on October 12, 1973. The trial judge
found that the principal factor in plaintiff’s being passed
over for promotion was the comparatively low OER that
was rendered on him for the last 3 months of this tour
of duty as a member of the division at the Test Center,
Fort Greely, Alaska. Plaintiff received three OERs while
at the Test Center. His composite score on the first one
6a
was 203.7. The second was 209.1. The third one, here
in issue, was 166.0. This represented a decline of 37.7
points compared with the first OER and 43.1 points when
compared with the second. The low OER was the lowest
composite score on any OER for plaintiff during his
entire military service. Excluding this one OER, his com-
posite scores for his entire service averaged 202.2. The
low OER was prepared after plaintiff left Fort Greely
and he did not see it until 1972 when he made inquiry
after being passed over for promotion in that year.
Plaintiff’s first challenge to the OER for the period
November 17, 1967, to February 20, 1968, was on October
5, 1973, when he sought a correction of his record under
the provisions of 10 U.S.C. § 1552 (1976) and AR 15-
185 by an appeal to the Army Board for the Correction
of Military Records. He did not pursue this appeal im-
mediately because, as later discussed, he first sought to
exhaust other administrative relief within the Army
itself. However, he amended his appeal to the board when
the other avenue of relief was unsuccessful and his ap-
plication was considered on October 19, 1977, by the
board in executive session. By letter of November 23,
1977, plaintiff was advised that the application for cor-
rection of his records was denied. The board decision
stated, in part:
DISCUSSION: From a review of the applicant’s entire
OER file it does appear that the OER in question
i. e., for the period from 17 November 1967 to 20
February 1968] may have been the determining
factor for his non-selection to the grades of Major-
RA and LTC-AUS.
The board memorandum concluded with the remark
that “the OER reflects a valid appraisal of the appli-
cant’s manner of performance during the period.”
Plaintiff also filed, on February 7, 1974, an appeal
under the provisions of AR 623-105 seeking to void the
Ta
low OER. The Infantry Branch of the Army did not
support the appeal. A special review board in the office
of the Deputy Chief of Staff for Personnel considered the
appeal and rejected it on Febraury 27, 1974. It had be-
fore it plaintiff’s representations and his record, and con-
sidered a memorandum furnished by Lt. Col. Williams,
which was abbreviated in a so-called case summary that
was very derogatory. In part it stated:
b. MAJ Grieg was truly outstanding until he re-
ceived word that he was to be reassigned to Viet-
Nam, then he practically quit work. He spent most
of time and energy attempting to get out of the Nam
assignments. He spent considerable working time
in telephoning DA and congressmen, and writing
letters. “He flat went to pieces.” Appellant told LTC
Williams that he (MAJ Grieg) had a way out in
that his wife would divorce him and refused to take
their child; therefore, the Army would not send him
to Viet-Nam. His attitude was negative.
e. With respect to appellant’s test reports, they
were late in submission and in such condition that
they had to be worked over. In fact LTC Williams
had to redo some of the testing because the data was
not complete. The format wasn’t the problem, it was
the substantive deficiencies that appellant was
faulted for, LTC Williams did not ask MAJ Grieg
to redo any of the work because it would not have
done any good. The rework was done by several
officers including the rater and indorser.
When the trial judge considered the documentary record
in the case and the testimony presented to him, he re-
jected everything that did not support plaintiff’s claim.
He found the adverse statements on the OER by the
rater and indorser factually inaccurate and as indicating
a “prejudicial state of mind” toward plaintiff, “evidently
due to the Vietnam assignment and the plaintiff’s attempt
to avoid it by submitiing his resignation.” He found
8a
that the OER for the contested period “did not represent
an accurate, objective, fair, or just evaluation of plain-
tiff’s performance during such period.” He concluded
that the OER was “unfair and unjust” and “prejudicial”
and that the record did not disclose any factor other than
the challenged OER that might have caused plaintiff's
passovers by the 1972 and 1973 permanent major selec-
tion boards. In this connection he noted the correction
board’s own statement that the weak OER “may have
been the determining factor for his non-selection.” Upon
these determinations the trial judge reached this con-
clusion: “Therefore, legal error was committed when the
1972 and 1973 permanent major selection boards based
their pass-overs of the plaintiff on records which contained
the unfair and unjust OER for the period from November
17, 1967, through February 20, 1968.” [Emphasis sup-
plied.] The trial judge has recommended that the court
award plaintiff back pay for active duty he would have
performed had he not been illegally discharged, for back
retired pay, and for the correction of his records to re-
move the contested OER and passovers. Promotion, of
course, was correctly denied as beyond the court’s
jurisdiction.
The trial judge has repeatedly referred to the result
in plaintiff’s case before the correction board and selec-
tion boards as “unfair and unjust,” i.e. an “injustice”
which he equates with legal error, as shown by the above
quotation from his opinion. He cites just two cases in
support of his proposition. Riley v. United States, 221
Ct. Cl. . , 608 F.2d 441, 443 (1979), and Skin-
ner V. United States, 219 Ct. Cl. 322, 330-31, 594 F.2d
824, 829 (1979). Those cases do not support the proposi-
tion that the court can overturn selection boards and cor-
rection boards because something that they have done or
failed to do is simply “unfair and unjust.” Those were
cases in which pure legal error was committed and there
are many cases proclaiming our jurisdiction to correct
such errors. Capt. Riley was passed over for promo-
tion because of two OERs which were voided by a review
board. The correction board refused his request to
remove the passovers. This was legal error because un-
der the statutes, 10 U.S.C. §§ 3442 (e), 8442(c) (1976),
an officer is entitled to be considered on a record that
accurately portrays his career. The record was erroneous
by the decision and admission of the Air Force itself. It
was also shown that with these illegal OERs out of his
file plaintiff was in the competitive zone for promotion.
The legal error in Skinner was the illegal use of com-
mand influence on the rater, arising from information
the rater and indorser confessed was erroneous. This
violated the same statutes as in Riley. The court in
Skinner ruled:
* * * It takes more than an unfair rating or simple
injustice to merit our consideration or judicial relief.
It must be an unlawful act made so by violation of
statute, or regulation, or published mandatory pro-
cedure, or unauthorized act, or so unsupported by
the evidence as to be a gross injustice, unlawful be-
cause of clear legal or factual error, manifest abuse
of discretion, or arbitrary and capricious action
amounting to bad faith or fraud, and seriously preju-
dicial. [Citations omitted.] [219 Ct. Cl. at 333, 594
F.2d at 830.]
The same day that Skinner was decided, the court en
banc decided Sanders v. United States, 219 Ct. Cl. 285,
594 F.2d 804 (1979). In that case there was also plain
legal error. The correction board removed certain im-
proper OERs from Capt. Sanders’ file but did not re-
move, as he requested, the passovers that they had oc-
casioned. Had it done so, it was evident he would have
been promoted because he was next in line for it. The
court unanimously concluded that he had been discharged
by reason of legal error. An officer is entitled to the pay
of the position to which he was appointed until legally
removed. 37 U.S.C. § 204 (1976).
10a
The Sanders court did not entirely rule out the possi-
bility that somewhere down the road in the future there
might be such an error or injustice so shocking to the
conscience and ignored by a correction board that evi-
dence could show it rose to the level of legal error neces-
sary for the court to remedy it. As yet, the court has
encountered no such cases, post Sanders and Skinner.
One thing is clear, the court cannot itself correct a simple
injustice or direct a correction board to do so, without
the correction implementing a money judgment. Black
v. United States, Ct. Cl. No. 238-74 (order entered April
18, 1980). Correction boards have the authority by stat-
ute to remove or correct an error or injustice. 10 U.S.C.
§ 1552(a) (1976). The statute says: “Except when pro-
cured by fraud, a correct under this section is final and
conclusive on all officers of the United States.” An ex-
ample of the correction of an injustice may be illustrated,
for instance, where the board orders a promotion or
changes the character of a soldier’s discharge from dis-
honorable to honorable as a matter of clemency to cor-
rect a factual but not necessarily a legal error. The
court cannot do this because it does not involve a mone-
tary claim, but is equitable in nature. The court said
in Sanders:
Once a plaintiff has sought relief from the
Correction Board, such plaintiff is bound by that
board’s determination unless he can meet the diffi-
cult standard of proof that the Correction Board’s
decision was illegal because it was arbitrary, or ca-
pricious, or in bad faith, or unsupprted by substan-
tial evidence, or contrary to law, regulation, or
mandatory published procedure of a substantive na-
ture by which plaintiff has been seriously preju-
diced, and money is due. [219 Ct. Cl. at 298, 594
F.2d at 811.]
lla
The court also said in that case:
* * * To recover for failure to correct an alleged
injustice, such as perhaps based on gross material
error of fact or an action contrary to all evidence,
it must be proved that such failure was arbitrary
and capricious, or in bad faith, or contrary to law,
or without rational basis, seriously prejudicial to
plaintiff, and with monetary consequences. In such
event, the abuse of administrative discretion rises to
the level of legal error which merits judicial relief.
These are comparatively rare cases. [Citations
omitted.] Perhaps they are infrequent because the
proof must overcome the strong, but rebuttable, pre-
sumption that administrators of the military, like
other public officers, discharge their duties correctly,
lawfully, and in good faith. [Citations omitted.]
Strong policies compel the court to allow the widest
possible latitude to the armed services in their ad-
ministration of personnel matters. * * * Thus, while
we may disagree with a correction board about
whether or not a specific situation was unjust, we
will not substitute our judgment for the board’s
when reasonable minds could reach differing conclu-
sions. Snell v. United States, 168 Ct. Cl. 219, 227
(1964). [Sanders, 219 Ct. Cl. at 301-02, 594 F.2d
at 813-14.]
Ccacurring in the Sanders result but writing sepa-
rately, Judge Nichols, joined by Judge Smith, would not
admit that there was any right to judicial review except
for legal error. Claims of “injustice” were described as
moral claims for clemency, but not within the court’s
jurisdiction to decide or to require the correction board
to decide “no matter how arbitrary or capricious, in
merely moral cases.” 219 Ct. Cl. at 319, 594 F.2d at
823 (Nichols, J., concurring). The majority opinion ac-
knowledged this difficulty in stating:
12a
Where a correction board fails to correct an in-
justice or a passover is challenged but a back pay
claim has not arisen, plaintiff’s remedies, if any,
would be in the district court by mandamus, 28
U.S.C. § 1361, or declaratory judgment, 28 U.S.C.
§ 2201. [Sanders, 219 Ct. Cl. at 296 n.10, 594 F.2d
at 810 n.10.]
It is unnecessary here to belabor these now well-settled
rules of law and to cite or discuss the cases supporting
the same, as set forth in the precedents cited above. What
is necessary now is to see if plaintiff has met the strict
and difficult tests of Skinner and Sanders, subsequently
reaffirmed in several decisions, including the recent one
of Hary v. United States, 223 Ct. Cl. -—, 618 F.2d
704 (1980).
We think without doubt that plaintiff has failed to
meet the tests. The trial judge has not shown us that
what he found to be an unjust OER amounted to legal
error. He weighed the testimony of plaintiff and his
wife, of plaintiff’s friend and subordinate, Mr. Cook, and
the evidence of the commendation of the Electronics Com-
mand and its indorsement by an officer not in the rating
chain for this particular OER, compared the challenged
OER with others plaintiff received, and concluded that
there was substantial evidence of prejudice and error of
fact so as to make an “unfair and unjust” OER into one
written in legal error. He also gave weight to the specu-
lation of the correction board that the OER “may have
been the determining factor for his nonselection” to the
grade of major, but he did not note that the correction
board also said that the OER constituted a “valid ap-
praisal” of plaintiff’s performance of duty during the
rating period which it covered. “A finding of probable
error or injustice cannot be based on mere speculation.”
Hary v. United States, supra, 223 Ct. Cl. at —— n.18,
618 F.2d at 711 n.18.
13a
The trial judge heard the evidence, evaluated plain-
tiff’s performance, and concluded that the OER for the
period in dispute did not accurately reflect plaintiff’s
performance. A contrary conclusion would have been
equally plausible and well supported. As defendant per-
suasively argues, the Army Electronics Command com-
mendation of plaintiff’s work and the letter by the Test
Center commander, Col. Nabors, which forwarded that
commendation to the plaintiff, do not represent an evalu-
ation of plaintiff’s performance for officer effectiveness
report purposes. Those personnel were not legally re-
sponsible for monitoring plaintiff’s work from day to
day, and making an evaluation of that work for the
military.
Similarly, plaintiff’s record for prior and subsequent
periods cannot negate the evaluation for the OER period
in dispute. The rater and indorser recorded their evalua-
tion of plaintiff’s performance for that period. These
were the individuals who had the legal responsibiilty to
rate plaintiff and who were in a position to observe his
performance on a daily basis. They exercised their dis-
cretion and judgment in rendering the evaluation, and
their evaluation is entitled to a presumption of correct-
ness. Hary v. United States, supra, 223 Ct. Cl. at ——,
618 F.2d at 707; Guy v. United States, 221 Ct. Cl. ——,
——, 608 F.2d 867, 870 (1979); Sanders v. United
States, supra, 219 Ct. Cl. at 302, 594 F.2d at 813. The
rater and indorser reiterated and reaffirmed their criti-
cism of plaintiff’s performance during the rating period
in issue when they testified in this court. As the court
stated in Guy v. United States, supra, 221 Ct. Cl. at
——, 608 F. ad at 870-71:
perfect objectivity in the rating process can-
not be expected or even hoped for. The process of
evaluating officers by other officers is an inherently
subjective process which neither the military boards
14a
nor this court will interfere with unless there is elear
and convincing evidence of factors adversely affect-
ing the ratings which had no business being in the
rating process. * [Emphasis in original.]
See also, Hary v. United States, supra, 223 Ct. Cl. at
——, 618 F.2d at 708. There is no evidence that such
improper factors affected the challenged OER.
In addition, the trial judge seems to have approached
this case as one in which he could evaluate the plaintiff’s
performance during the period from November 17, 1967,
to February 20, 1968, and reach a conclusion based
solely on the weight of evidence as he saw it. However,
the Army Board for the Correction of Military Records
decided that the OER in question represented a “valid
appraisal” of the plaintiff’s performance for the period
in question. That conclusion is entitled to finality un-
less arbitrary, or capricious, or unsupported by the evi-
dence. Skinner v. United States, supra, 219 Ct. Cl. at
332, 594 F.2d at 830. As the court stated in Cooper v.
United States, 203 Ct. Cl. 300, 304-05 (1973): +
* * * This court cannot overturn the * * de-
cisions of the Army Board for the Correction of
Military Records unless they are found to be ar-
bitrary, capricious, and not based upon substantial
evidence, or are contrary to applicable laws and reg-
ulations. Dorl v. United States, 200 Ct. Cl. 626, cert.
denied, 414 U.S. 1032 (1973). This showing re-
quires cogent and clearly convincing evidence. New-
man V. United States, 185 Ct. Cl. 269, 276 (1968) ;
Stephens v. United States, 174 Ct. Cl. 365, 372, 358
F.2d 951, 954 (1966). There is a strong presump-
tion that the board and the Secretary faithfully dis-
charged their duties and the burden is upon plain-
tiff to prove otherwise. Callan v. United States,
196 Ct. Cl. 392, 450 F.2d 1121 (1971); Biddle v.
United States, 186 Ct. Cl. 87 (1968). * * *
15a
The trial judge does not appear to have evaluated the
evidence in light of that standard of review. The failure
of the trial judge to analyze the evidence within the
proper scope of review deprives his recommended opin-
ion of the presumption of correctness to which it would
otherwise be entitled. In addition, the passage of years,
11 years from the performance evaluated to the date of
trial in this court, weighs heavily against the plaintiff’s
efforts to overcome the OER. Slight variations between
the evaluation 11 years ago and the rater and indorser’s
testimony in this court must be expected, given the lapse
of time and the frailty of human memory. But, the
plaintiff must establish a “misstatement of a significant
hard fact,” Hary v. United States, supra, 223 Ct. Cl.
at ——, 618 F.2d at 708, or “gross material error of
fact or an action contrary to all evidence,” Sanders v.
United States, supra, 219 Ct. Cl. at 301, 594 F.2d at
813, or that the decision of the correction board is “so
unsupported by the evidence as to be a gross injustice,”
i.e., clearly erroneous, Skinner v. United States, supra,
219 Ct. Cl. at 333, 594 F.2d at 830. Plaintiff has simply
failed to meet its burden in this case in order to over-
come the OER and the correction board decision.
The cold reality of the situation is that it will always
be difficult to overcome the discretionary judgments and
evaluations by the rater and indorser, especially many
years after the performance was reported. However, this
is as it should be. This court is not here to second-guess
them. Further, “we will not substitute our judgment for
the board’s when reasonable minds could reach differing
conclusions.” Sanders v. United States, supra, 219 Ct. Cl.
at 302, 594 F.2d at 814. We do not run the military
services. Orloff v. Willoughby, 345 U.S. 83 (1953). The
court said in Reale v. United States, 208 Ct. Cl. 1010,
1013, cert. denied, 429 U.S. 854 (1976) :
Plaintiff sees us as made into a sort of super
Correction Board by Pub. L. 92-415, supra. We do
l6a
not agree. We are given power to order correction
of records, and reinstatement but only to make the
relief complete as to matters within our jurisdiction,
not to exercise discretion for the Service Secre-
taries and take over the functions of Correction
Boards.
Any course other than the one stated would permit an
officer to challenge his OERs by bringing in his self-
serving testimony and that of his wife and friends not
in the rating chain, to upset those OERs, and thus render
the entire military promotion and rating system a farce
by destroying its integrity. Show us a clear, legal error
and we can cope with it. We do not have one here. There
was substantial evidence to support the OER as given
to plaintiff. It was not, therefore, arbitrary and ca-
pricious for the correction board not to change it. It is
the rater’s view that counts in the end, absent legal
error. OERs are discretionary matters in which the
court must be scrupulous about its intervention. Boyd
v. United States, 207 Ct. Cl. 1, cert. denied, 424 U.S. 911
(1976). In the face of the presumption that the OER
is correct because the rater is presumed to have acted
in good faith, “plaintiffs must do more, to invoke court
intervention, than merely allege or prove that an OER
seems inaccurate, incomplete, or subjective in some
sense.” Hary v. United States, supra, 223 Ct. Cl. at
——, 618 F.2d at 708. And, as further stated in the
latter case, “merely because the Correction Board voids
an OER, it is not automatically obligated to void any
passover emanating from a selection board that had a
defective OER before it. The officer must show that the
presence of the defective OER made his whole record
before the selection board something less than ‘substan-
tially complete and fair.’” Here, unlike in Skinner, for
instance, there is no concession by the rater or indorser
that the rating was factually wrong. Also, this case is
17a
unlike Sanders because in that case the correction board
had voided four OERs. Further, there is no showing
of plaintiff’s relative standing to others waiting in line
for promotion or at what point there was a “cutoff.”
The best we have is the correction board’s speculation
that the challenged OER might have made a difference.
But, since it stated also that the OER was correct we
cannot give plaintiff back pay. Except for an inference
of potential prejudice by the rater, not supported by this
record, the fact that this fine officer had better ratings
before and after the challenged OER is of no legal mo-
ment nor of probative value as to the rating period cov-
ered by the one OER with which he is dissatisfied. A
clear nexus between the OER and plaintiff’s serious pos-
sibility of promotion is lacking in the record. Cf. Guy
v. United States, supra. The statistics supplied in the
findings of the trial judge show that several hundred
officers were considered but not selected by the permanent
major selection boards that considered plaintiff for pro-
motion on January 24, 1972, and January 31, 1973, as
follows:
1972 1973
CO a 1917 1922
ET eS 1652 1480
Percent selected “ 86.2 77.0
“Fresh Zone” considered? 1721 1774
“Fresh Zone” selected ............... 1560 1457
Percent “Fresh Zone” selected .........................- 90.6 82.1
* Officers considered for the first time.
The statistics for the September 5, 1972, temporary
lieutenant colonel selection board that considered, but did
not select, plaintiff are even more striking:
Number considered sta — =
Number selected = Se
Percent selected . Se
“Fresh Zone“ considered . SS OE Oe 850
“Fresh Zone” selected ——
Percent “Fresh Zone” selected n 80.8
18a
We think plaintiff can derive small comfort from these
statistics. Plaintiff’s main argument is that since the
trial judge saw the witnesses and had a chance to judge
their credibility, and the correction board had no hear-
ing, the presumption in favor of the decision and findings
of the trial judge has to be decisive. Indeed, it would
be if he found a legal error. But, his conclusion that
what he believed to be an “unfair and unjust” OER is
necessarily legal error is not supported by the statutes,
regulations, or prevailing case law. In his zeal to do
justice as he saw it, he innocently went beyond the per-
missible scope of review by acting as a correction board
and by substituting his judgment of plaintiff’s perform-
ance of duty for that of the plaintiff’s rating and in-
dorsing officers, reflected on the OER, which constituted
substantial evidence before the board, even though some
aspects thereof might be subject to differences of opinion
between reasonable minds.“ Under the law, as set forth
in our cases, this is not good enough to constitute legal
error which would permit the court to overturn the ad-
ministrative determination, as plaintiff here requests.
Plaintiff argued this case to the trial judge as if this
court were sitting as a super correction board with
authority to correct what are merely alleged inaccuracies
in a challenged OER. We read the trial judge’s opinion
as adopting that view. The trial judge said that:
A military officer is legally entitled to be con-
sidered by a selection board for promotion on the
basis of a record that fairly portrays the career of
the officer in the military service.
2 When the trial judge drafted his recommended opinions, he had
the benefit of the plaintiff's 276-page proposed findings of fact and
brief. However, he did not have before him any proposed findings,
brief, or response from the defendant. See the court’s previous
order in this case. Grieg v. United States, Ct. Cl. No. 258-78 (order
entered May 9, 1980). Thus, the one-sidedness of the record before
the trial judge may have contributed to the outcome below.
19a
In this he was correct. The law provides that appoint-
ments to higher grades are to be made on a “fair and
equitable basis,” 10 U.S.C. §§ 3442 (e), 8442 (e) (1976).
However, this laudable, legal standard does not auto-
matically convert every factual error to legal error. The
plaintiff’s claim in this case relies upon proof that the
challenged OER was materially in error so as to war-
rant judicial relief. But, as we have shown, reasonable
minds can differ on the evidence here. Where that is
so, we can go no further. We have analyzed the case
under the proper standards for granting relief for factual
error and conclude that the evidence was insufficient to
overturn the presumptions which support the OER in
this case. Therefore, the petition is dismissed.
20a
APPENDIX B
IN THE UNITED STATES COURT OF CLAIMS
TRIAL DIVISION
No. 258-78
(Filed April 14, 1980)
JOHN M. GRIEG
v.
THE UNITED STATES
Military pay; officer efficiency rating; selection
board pass-overs; release from active duty; cor-
rection board; damages.
Neil B. Kabatchnick, attorney of record, for plaintiff.
LeRoy Southmayd, Jr., with whom was Assistant At-
torney General Alice Daniel, for defendant.
OPINION *
WHITE, Senior Trial Judge: The plaintiff, who served
on extended active duty as an Army officer for more
than 15 years, sues in the present case because of the
allegedly wrongful termination of his extended active
duty on November 1, 1973. At the time of such termina-
tion, the plaintiff was a member of the Regular Army,
* The trial judge’s recommended decision and conclusion of law
are submitted in accordance with Rule 134(h).
21a
serving in the permanent grade of captain and in the
temporary grade of major. He was released from active
duty because he had been passed over twice by selection
boards, first in 1972 and subsequently in 1973, for pro-
motion to the permanent grade of major in the Regular
Army.
The plaintiff alleges that the two pass-overs mentioned
in the preceding paragraph, and the resulting release
from active duty, where due to an erroneous and unjust
officer efficiency rating (“OER”) which was rendered
on the plaintiff for the period from November 17, 1967,
to February 20, 1968, and which was among the papers
before the 1972 and 1973 selection boards when they
considered the plaintiff for promotion to the permanent
grade of major.
On October 5, 1973, the plaintiff filed with the Army
Board for Correction of Military Records (“the Board“)
an application for the correction of his military records
under the provisions of 10 U.S.C. § 1552 and Army Reg-
ulation 15-185. In the application, as amended, the plain-
tiff requested (among other things): the voiding of the
OER for the period from November 17, 1967, to Feb-
ruary 20, 1968; the voiding of the plaintiff’s failure of
selection for promotion to the permanent grade of major
by the 1972 and 1973 selection boards; and the correction
of the plaintiff’s military records to show that he was
selected for promotion to the permanent grade of major
by the 1972 selection board and was thereafter promoted
to the permanent grade of major, with a designation of
an appropriate date of rank.
The plaintiff’s application was considered on October
19, 1977, by the Board in executive session. The applica-
tion was denied by the Board, without granting the plain-
tiff a hearing on this application.
22a
The present action was instituted by the plaintiff on
May 26, 1978.
During the critical period that is involved in the pres-
ent litigation (i.e., from November 17, 1967, to February
20, 1968), the plaintiff was assigned to duty as a test
officer in the Infantry, Airborne, and Individual Equip-
ment Test Division (“the Division”) at the Army’s
Arctic Test Center (“the Test Center“), Fort Greely,
Alaska. This assignment began in June 1966.
Before reporting to the Test Center in June 1966, the
plaintiff’s professional career as an Army officer had
been quite successful. This had included two tours of
duty in Vietnam. The first tour of duty there was as
an Infantry officer from December 2, 1961, until No-
vember 26, 1962. The second tour of duty in Vietnam
was for a 6-month period that began in the latter part
of 1963 and extended into 1964. During this 6-month
period, the plaintiff was the leader of a Special Forces
team operating in the Vietnamese jungle (the Army
Special Forces being an elite element that specializes in
counter-insurgency operations in hostile territory). On
the basis of his performance as the leader of the Special
Forces team, the plaintiff was awarded the Bronze Star
Medal for “distinguishing himself by outstanding meri-
torious service in connection with ground operations
against a hostile force.”
After completing in June 1965, a tour of duty in
Okinawa as a member of the Ist Special Forces Group,
the plaintiff was assigned to Fort Benning, Georgia,
where he took and successfully completed the advanced
Infantry Officers Career Course. Upon graduating from
this course, the plaintiff was assigned to the Test Cen-
ter; and, as previously indicated, he reported for duty
there in June 1966.
23a
The plaintiff was accompanied to Alaska by his wife
and their one child, who was approximately 2 months
old at the time.
The plaintiff’s work as a test officer at the Test Cen-
ter prior to November 17, 1967, was highly regarded by
his superiors. The OER that was rendered on the plain-
tiff for the period from June 2, 1966, to June 1, 1967,
gave the plaintiff a composite score of 203.7; and his
OER for the period from June 2, 1967, to November
16, 1967, gave him a composite score of 209.1.
By contrast, the OER that was rendered on the plain-
tiff for the period from November 17, 1967, to February
20, 1968, gave the plaintiff a composite score of only
166.0, which was, by a substantial margin, the lowest
composite score on any OER for the plaintiff during his
entire military service. Adverse comments were added
to the OER by the rater and the indorser. These com-
ments related to events which occurred after the plain-
tiff learned in August 1967 that he was being ordered
back to Vietnam for further duty and would be required
to report there not later than December 28, 1967.
As the plaintiff’s wife was expecting to give birth to
their second child in December 1967 (when the plaintiff
was supposed to go to Vietnam for the third time), as
their first child was not yet 16 months old, and as the
plaintiff's wife was acquainted with other Army officers
who had less service in Vietnam than the plaintiff, the
plaintiff's wife was upset and angry over what she
regarded as the unfair and unjust treatment of her hus-
band on being ordered back to Vietnam for a third
tour of duty. She conveyed her feelings to the plaintiff.
On August 14, 1967, the plaintiff tendered to the
Department of the Army, through channels, his unquali-
fied resignation as an Army officer, “to be effective by
June 1968 or earlier.”
24a
After submitting his formal resignation, the plaintiff
telephoned the Infantry Officers Assignment Branch at
Army Headquarters in Washington, D.C., and orally in-
formed that office regarding the submission of his resig-
nation. The Assignment Branch responded that the plain-
tiff’s resignation would not be accepted. The plain-
tiff then orally requested that the date for his reporting
to Vietnam be postponed in view of the expected birth
of a child to his wife in December 1967; and the plain-
tiff was advised that a postponement of his reporting
date would be granted. Later, the plaintiff’s resigna-
tion as an Army officer was formally rejected by the
Department of the Army.
On October 18, 1967, supplemental orders were issued
which changed the date on which the plaintiff was to
report in Vietnam from December 28, 1967, to March
25, 1968. These orders further provided that the plain-
tiff and his dependents were to depart from Fort Greely
on February 20, 1968, for Chicago, Illinois; and that the
plaintiff, after a month’s leave, was to report on March
23, 1968, to a designated Army base on the West Coast
for transportation to Vietnam.
When the plaintiff learned definitely that his resigna-
tion from the Army was not accepted, and that it would
be necessary for him to go back to Vietnam for another
tour of duty in any event, he undertook to accelerate
the completion of the assignments on which he was work-
ing at the Test Center, so that they could be completed
before February 20, 1968, the date on which he and his
family were to leave Alaska.
The plaintiff’s principal assignments at the time re-
lated to the testing under arctic conditions, evaluating,
and reporting on a “starlight scope,” which was a night-
vision system to enhance the ability of Infantry per-
sonnel to see in the nighttime, and a survival kit for use
by Infantry personnel. The plaintiff was in charge of
25a
these projects. Under normal operating conditions at the
Test Center, the testing of the items mentioned would
have been accomplished during the winter months of
1967-68, and the preparation of the reports would have
been undertaken in about April 1968, after the end of
the severe winter weather in the Fort Greely area of
Alaska. Because of the plaintiff’s prospective departure
from the Test Center on February 20, 1968, the plain-
tiff, after completing the testing of the starlight scope
and the survival kit in the field, promptly began the
preparation of his reports. By accelerating the work, he
was able to complete the reports in draft form well in
advance of his February 20 departure date, and in suf-
ficient time for the Division review board (which con-
sisted of all the Division officers, other than the chief
of the Division, and included the plaintiff) to review the
reports, in accordance with the customary procedure,
prior to the plaintiffs departure.
The Division review board (which included the plain-
tiff) devoted a period of days to the draft reports which
the plaintiff had prepared on the starlight scope and on
the survival kit. The review board found the draft re-
port on the starlight scope to be satisfactory, both as to
format and as to content. With respect to the draft
report on the survival kit, the review board found it
to be satisfactory as to format, but concluded that it
did not include certain data which the plaintiff had de-
veloped during the testing process and which other mem-
bers of the review board regarded as pertinent to the
evaluation of the item. Such data were included in the
report by the review board.
By virtue of the plaintiff’s action in accelerating the
preparation of the draft reports on the starlight scope
and the survival kit, and the intensive work on the re-
ports done by the Division review board (which included
the plaintiff), the reports were completed in final form
26a
and typed on mats (for reproduction and distribution)
prior to the time when the plaintiff left the Test Center.
The work done by the plaintiff (and another officer
who assisted him) in connection with the testing of the
starlight scope was commended by the Army Electronics
Command in a communication dated February 5, 1968.
This communication referred (among other things) to
the “great personal sacrifice” of the plaintiff (and his
assistant) and to the “outstanding manner” in which the
plaintiff (and his assistant) cooperated to prevent delay
and overcome technical difficulties. The communication
concluded with the statement that “The very eminently
satisfactory manner in which this mission was accom-
plished reflects most highly on Major Grieg’s * * * ca-
pabilit[y] * * * and * * * devotion to our nation’s
defense.”
The commendation mentioned in the preceding para-
graph was forwarded to the plaintiff by the command-
ing officer of the Test Center, with a covering
communication which stated in part as follows:
2. It is apparent from the attached correspondence
that your contribution to these tests does indeed
merit recognition. You can be justifiably proud to
have completed the tests with the many unexpected
difficulties due to major design deficiencies. Your
resourcefulness and tenacity in the collection of ad-
ditional data will permit the design engineers to
improve upon the items tested.
3. I add to Mr. Thonen’s comments that your
entire tenure as a test officer has been worthy of
such recognition, all tests having been conducted
under adverse conditions which you overcame to suc-
cessful'y complete your assignments. Please accept
my congratulations for a job outstandingly well done.
The plaintiff’s career-low OER for the period from
November 17, 1967, to February 20, 1968 (which was
27a
prepared after the plaintiff’s departure from Alaska and
not shown to him) was, of course, inconsistent with the
commendations from the Army Electronics Command and
from the commanding officer of the Test Center that
covered the plaintiff’s performance during the same period
of time.
As previously stated, the OER in question contained ad-
verse comments by the rater and indorser. Such com-
ments will be set out separately and commented on in the
light of the evidence adduced at the trial.
The rater stated (among other things) that “after the
tests [on the starlight scope and the survival kit] were
completed, MAJ Grieg failed to prepare the reports of
tests in the proper format or within the required time
frame.” This statement was not correct. The Division
review board found that both reports were prepared in
the proper format. Also, the reports, instead of being
delinquent as to time, were prepared by the plaintiff
ahead of the customary time schedule.
The rater also stated on the OER that “When ques-
tioned about the progress that he [the plaintiff] was
making on the reports, he displayed a very negative at-
titude.” This statement was not correct. The plaintiff
made a special effort to complete the reports ahead of the
usual time schedule; he made good progress in this re-
spect; there was no occasion to question him about
progress; and the statement that he displayed a nega-
tive attitude in the matter is contradicted by the evidence
in the record.
The indorser stated (among other things) on the OER
that “The last 30 days that he [the plaintiff] was as-
signed to this Test Division his dependability was seri-
ously affected.” This statement was not correct. It is
contradicted by the evidence in the record.
28a
The indorser also stated on the OER that “One of the
test reports he [the plaintiff] wrote had to be completely
rewritten by other officers of this Test Division * * *.”
This statement was not correct. Neither of the plaintiff's
draft reports was completely rewritten by other officers
of the Division.
The indorser further stated that “the other test report
had to have major modifications and corrections made on
it.” This statement was misleading. What happened was
that the Division review board decided that additional
data, which the plaintiff had developed, should be in-
cluded in one report, and this was done.
The indorser also stated on the OER that “During
MAJ Grieg’s last 30 to 45 days that he was assigned to
this test division he displayed a very negative attitude
toward the Army.” This statement was not correct. It
was evidently based on the circumstance that the plain-
tiff submitted his unqualified resignation as an Army
officer under the circumstances previously outlined in the
opinion, i. e., the plaintiff understood that he would have
to leave for a third Vietnam tour of duty in the same
month when his wife was expected to give birth to their
second child, and he was acquainted with other Army
officers those length of service in Vietnam did not equal
the time that he had already spent there.
The several adverse statements on the OER by the
rater and the indorser that were factually inaccurate
indicate a prejudicial state of mind at the time toward
the plaintiff; and this was evidently due to the Vietnam
assignment and the plaintiff’s attempt to avoid it by sub-
mitting his resignation. It was not any actual deficiency
in the plaintiff’s performance of duty during the period
from November 17, 1967, to February 20, 1968, that
led the rater and indorser to give the plaintiff a career-
low OER for such period.
29a
The evidence in the record shows, and it is found, that
the OER for the period from November 17, 1967, to
February 20, 1968, did not represent an accurate, ob-
jective, fair, or just evaluation of plaintiff’s performance
during such period.
It perhaps should be mentioned that the plaintiff, after
leaving the Test Center, actually served in Vietnam on a
third tour of duty from March 25, 1968, to March 10,
1969. During this tour of duty, he was assigned to the
82nd Airborne Division; and he was awarded two Oak
Leaf Clusters for his Bronze Star Medal on the basis
of meritorious service.
Upon concluding his 1968-69 tour of duty in Vietnam,
the plaintiff served for approximately 4 years in Europe,
first with the Seventh Army in Germany and then with
the Southern European Task Force of the Army in
Italy.
After the plaintiff was passed over twice by selection
boards for promotion to the permanent grade of major,
he was returned to the United States in order that his
required release from active duty might be accomplished
in this country. The release occurred on November 1,
1973.
A military officer is legally entitled to be considered by
a selection board for promotion on the basis of a record
that fairly portrays the career of the officer in the mili-
tary service. Sanders v. United States, 219 Ct. Cl. ——,
——, 594 F.2d 804, 814 (1979); Riley v. United States,
221 Ct. Cl. ——, ——, 608 F.2d 441, 443 (1979). There-
fore, legal error was committed when the 1972 and 1973
permanent major selection boards based their pass-overs
of the plaintiff on records which contained the unfair and
unjust OER for the period from November 17, 1967,
through February 20, 1968. Skinner v. United States,
219 Ct. Cl. » , 594 F.2d 824, 829 (1979); Riley
v. United States, supra, 221 Ct. Cl. at ——, 608 F.2d
at 443.
Of course, a harmless error committed in the selection
process would not be actionable. Guy v. United States,
221 Ct. Cl. » , 608 F.2d 867, 872 (1979); Riley
v. United States, supra, 221 Ct. Cl. at ——, 608 F.2d at
443-44. Harmless error, in this respect, means that, ac-
cording to the evidence, it is unlikely that the officer
against whom an error in the selection process was com-
mitted would have been promoted in any event. Sanders
v. United States, supra, 219 Ct. Cl. at ——, 594 F.2d
at 818.
In the present case, the evidence in the record does not
disclose any factor, other than the unfair and unjust OER
for the period from November 1“, 1967, to February 20,
1968, which might have caused the plaintiff’s pass-overs
by the 1972 and 1973 permanent major selection boards.
As previously stated, the plaintiff’s composite rating of
166.0 on that OER was, by a substantial margin, the
lowest composite rating ever received by the plaintiff
during his entire service as an Army officer. Excluding
the OER for the period from November 17, 1967, to Feb-
ruary 20, 1968, the composite scores on the OER’s that
were rendered on the plaintiff during his entire active
military service averaged 202.2. In this situation, it
must necessarily be concluded that the 1972 and 1973
pass-overs by the permanent major selection boards were
due to the unfair and unjust OER for the period from
November 17, 1967, to February 20, 1968, and therefore,
that this OER was highly prejudicial to the plaintiff in
causing the two pass-overs and his release from extended
active duty. Cf. Sanders v. United States, supra, 219 Ct.
Cl. at ——, 594 F.2d at 815; Riley v. United States,
supra, 221 Ct. Cl. at ——, 608 F.2d at 444.
In this connection, it may appropriately be noted that
the Board, in denying the plaintiff’s application for
the correction of his military records with respect to the
pass-overs by the 1972 and 1973 permanent major selec-
3la
tion boards, stated that “the OER in question i. e., for
the period from November 17, 1967, to February 20,
1968] may have been the determining factor for his non-
selection * 2
Under the circumstances, the failure of the Board to
void the unfair and unjust OER and to remove from
the plaintiff’s records the two pass-overs by the 1972 and
1973 permanent major selection boards must be regarded
as constituting arbitrary and capricious action, as un-
supported by substantial evidence, and as contrary to law.
Yee v. United States, 206 Ct. Cl. 388, 397, 512 F.2d 1383,
1387 (1975) ; Riley v. United States, supra, 221 Ct. Cl. at
, 608 F.2d at 444.
As the plaintiff’s two pass-overs for promotion to the
permanent grade of major were based upon the illegal
decisions of the 1972 and 1973 selection boards, the plain-
tiff's release from active duty because of such pass-
overs was illegal. Yee v. United States, supra, 206 Ct.
Cl. at 398, 512 F.2d at 1388; Riley v. United States,
supra, 221 Ct. Cl. at ——, 608 F.2d at 443.
The plaintiff, having been illegally released from active
duty on November 1, 1973, is entitled under 37 U.S.C.
§ 204 to recover an amount representing the active duty
pay and allowances of the grade (major) in which he
was then serving, such pay and allowances to cuver the
period beginning on November 2, 1973, and extending
until such time as he would have been released from
active duty in the absence of the illegal pass-overs by the
1972 and 1973 permanent major selection boards, less
proper off-sets. Sanders v. United States, supra, 219 Ct.
Cl. at ——, 594 F.2d at 810. It appears, in this con-
nection, that the plaintiff, in the absence of the two illegal
pass-overs from promotion to the permanent grade of
major, would not have been released from active duty
32a
until he qualified on October 4, 1976, for retired pay on
the basis of length of service.
The plaintiff is also entitled to recover an amount rep-
resenting the retired pay of a major from the date on
which he would have been retired—i.e., October 5, 1976—
until the date of judgment.
In the petition, the plaintiff seeks an order from the
court directing the Secretary of the Army to correct the
plaintiff’s military records so as to show that the plaintiff
was selected for promotion to the permanent grade of
major by the 1972 permanent major selection board and
was thereafter promoted to the permanent grade of
major; that the plaintiff was selected for promotion to
the temporary grade of lieutenant colonel by the tem-
porary lieutenant colonel selection board that met on Sep-
tember 5, 1972, and was subsequently promoted to the
temporary grade of lieutenant colonel; and that the
plaintiff thereafter retired in the grade of lieutenant
colonel on October 5, 1976. These portions of the
prayer in the plaintiff’s petition cannot be granted by
the court. As the plaintiff has not shown that he was en-
titled, as a matter of legal right, to the promotions
which he now seeks, the court does not have jurisdiction
to grant such promotions. Yee v. United States, supra,
206 Ct. Cl. at 399, 512 F.2d at 1388; Sanders v. United
States, supra, 219 Ct. Cl. at ——, 594 F.2d at 816; Guy
v. United States, supra, 221 Ct. Cl. at ——, 608 F.2d
at 874.
1 The temporary lieutenant colonel selection board of September
1972, in considering and passing over the plaintiff for promotion
to temporary lieutenant colonel, did so on the basis of records
that contained the unfair and unjust OER for the period from
November 17, 1967, to February 20, 1968.
33a
FINDINGS OF FACT
1. Plaintiff is a citizen of the United States and a
resident of the State of Maryland.
2. (a) Plaintiff was born on 21 July 1931 in Chicago,
Illinois. He was 46 years of age at the time of the
filing of the petition on 26 May 1978.
(b) Plaintiff is married and has two children.
(e) Plaintiff’s social security number and service
number is 3 34-26-9139.
3. (a) Plaintiff served in an enlisted status in the
Army Reserve (but not on active duty) from 25 No-
vember 1952 to 25 February 1954.
(b) Plaintiff served on extended active duty in an en-
listed status from 26 February 1954 to 24 February
1956.
4. (a) Following the period of active military duty
referred to in finding 3(b), plaintiff served in an enlisted
status in the Army Reserve (but not on active duty) from
25 February 1956 to 13 June 1958. During the latter
period, plaintiff was a student at Iowa State University.
He was a member of the Army Reserve Officers’ Training
Corps (“ROTC”) at that institution.
(b) Plaintiff graduated from Iowa State University
in 1958 with a bachelor of science degree in agriculture.
(e) By virtue of his work in the ROTC program,
plaintiff was rated as a Distinguished Military Graduate
upon his graduation from Iowa State University; and on
14 June 1958 he was appointed a 2nd Lieutenant in the
Army Reserve.
5. (a) Plaintiff entered on extended active duty on
4 October 1958 as a 2nd Lieutenant in the Army Reserve.
He served on active duty thereafter continuously until 1
November 1973.
34a
(b) Plaintiff was appointed a 2nd Lieutenant, Regu-
lar Army, on 27 April 1959, with date of rank of 21
July 1958.
(e) Plaintiff was promoted to the temporary and
permanent grade of Ist Lieutenant on 1 February 1960
and 21 July 1961, respectively.
(d) Plaintiff was promoted to the temporary and perm-
anent grade of Captain on 30 November 1962 and 21
July 1965, respectively.
(e) Plaintiff was promoted to the temporary grade of
Major on 3 February 1967.
6. Plaintiff’s extended active duty was terminated on
1 November 1973 under circumstances that will be out-
lined in subsequent findings. At the time of his release,
he had completed 17 years, 0 months, and 27 days of
active military service.
7. (a) Plaintiff’s basic branch is Infantry.
(b) Among others, plaintiff has been awarded the
following Military Occupational Specialties (“MOS”):
Field Artillery Unit Commander (1193), awarded 6
October 1958; Infantry Unit Commander (1542),
awarded 29 March 1960; Training Center Unit Officer
(2622), awarded 9 May 1960; Special Forces Officer
(31542), awarded 8 May 1964; Adjutant (2110),
awarded 26 July 1964; Nuclear Weapons Training
Officer (51542), awarded 19 November 1965; Operations
and Training Staff Officer (2162), awarded 22 September
1969; Service Test Officer (2040), awarded 10 August
1970; Ranger Parachutist (81542), awarded 14 March
1972; and Personnel Staff Officer (2260), awarded 12
September 1972.
8. (a) Plaintiff completed the following course work
while serving on extended active duty: Field Artillery
35a
Officers Basie Course (17 weeks), completed 1959; In-
fantry Officers Basie Course (10 weeks), completed 1959;
Ranger Course (9 weeks), completed 1961; Motor Trans-
port Officers Course (9 weeks), completed 1961; Air-
borne Course (4 weeks), completed 1961; Counterinsur-
gency Officers Course (6 weeks), completed 1961; and
Infantry Officers Career Course (36 weeks), completed
1966.
(b) Plaintiff has also completed Phase III of the Com-
mand and General Staff College course.
9. Plaintiff was awarded the Ranger Tab (31 March
1961) and Parachutist Badge (20 September 1961).
10. Among others, plaintiff has been awarded the Com-
bat Infantryman Badge (1964); Bronze Star Medal
(1964), with two Oak Leaf Clusters (1968 and 1969);
Army Commendation Medal (1968), with Oak Leaf
Cluster (1973) ; Air Medal (1969) ; and Meritorious Serv-
ice Medal (1973, for service during the period from 30
April 1969 to 6 August 1973).
11. Plaintiff was sent to Vietnam in the latter part of
1961 for an initial tour of duty in that country. This
tour of duty began on 2 December 1961 and continued
until 26 November 1962.
12. Upon completing the 1961-62 tour of duty in Viet-
nam, plaintiff volunteered for service in the Special Forces
of the Army, an elite element whose primary assignment
is to train for and, if necessary, to participate in counter-
insurgency operations in hostile territory. Plaintiff's ap-
plication was accepted, and he was assigned to the Ist
Special Forces Group in Okinawa. His tour of duty in
Okinawa extended from 26 November 1962 to 22 June
1965.
13. (a) During the period while Okinawa was plain-
tiff’s regular duty station, he was sent back to Vietnam
on a 6-month temporary tour of duty as the leader of a
36a
Special Forces team. The members of the team para-
chuted into the Vietnamese jungle; and thereafter they
engaged in combat operations during the 6-month tour of
duty, which covered the last 3 months of 1963 and the
first 3 months of 1964.
(b) Plaintiff was awarded the Bronze Star Medal for
“distinguishing himself by outstanding meritorious serv-
ice in connection with ground operations against a hostile
force in the Republic of Vietnam during” the period men-
tioned in paragraph (a) of this finding. The citation
for the award further stated:
Through his untiring efforts and professional ability,
he consistently obtained outstanding results. He
was quick to grasp the implications of new prob-
lems with which he was faced as a result of the ever
changing situations inherent in a counterinsurgency
operation and to find ways and means to solve those
problems. The energetic application of his extensive
knowledge has materially contributed to the efforts of
the United States Mission to the Republic of Vietnam
to assist that country in ridding itself of the com-
munist threat to its freedom. His initiative, zeal,
sound judgment and devotion to duty have been in
the highest tradition of the United States Army and
reflect great credit on him and on the military
service.
14. While in Okinawa, plaintiff married his wife, an
American citizen who was working in Okinawa at the
time as a school teacher. The marriage occurred on 1
June 1963. It was the first marriage for both.
15. (a) Upon concluding the 1962-65 tour of duty
in Okinawa, plaintiff was assigned to Ft. Benning,
Georgia, where he took and completed the advanced In-
fantry Officers Career Course over a period of 36 weeks.
(b) A son, the first child of the plaintiff and his wife,
was born at Ft. Benning, Georgia, on April 29, 1966.
37a
16. (a) After graduating from the Infantry Officers
Career Course at Ft. Benning in 1966, plaintiff was as-
signed to the Arctic Test Center of the Army at Ft.
Greely, Alaska (“the Test Center’’).
(b) Plaintiff and his family arrived at Ft. Greely in
June 1966.
(e) Plaintiff’s assignment to the Test Center began on
22 June 1966 and continued to 21 February 1968.
(d) The plaintiff was accompanied to Alaska by his
wife and infant son.
17. (a) Upon reporting to the Test Center, plaintiff
was assigned to duty as a Test Officer in the Infantry,
Airborne, and Individual Equipment Test Division (“the
Division”) at the Test Center.
(b) The Division was subdivided (at least de facto)
into four branches: i.e., the Small Arms Branch, which
was concerned with direct-fire weapons used by the In-
fantry; the Mortar Branch, which was concerned with
indirect-fire weapons used by the Infantry; the Individ-
ual Equipment Branch, which was concerned with items
of equipment to be worn by an individual soldier; and
the Airborne Branch, which was concerned with special
items of equipment to be utilized by Airborne personnel.
(e) Throughout the period while plaintiff was assigned
to the Division, Lt. Colonel Alfred E. Williams (“LTC
Williams”) was Chief of the Division.
(d) Throughout the period while plaintiff was as-
signed to the Division, he was Chief of the Mortar (or in-
direct fire) Branch. During the latter part of plaintiff's
assignment to the Division, he was also Chief of the Air-
borne Branch, and thus for a time supervised two
branches of the Division.
(e) Another branch chief in the Division was Major
Herbert Lee Gregg (“Major Gregg”), who was Chief of
38a
the Small Arms Branch. Effective 17 November 1967,
Major Gregg was also designated as Senior Test Officer
in the Division, because he was, by virtue of his date of
rank as Major, the senior officer in the Division (except
for LTC Williams, Chief of the Division).
18. (a) As the mission of the Division was to test
and evaluate various items of equipment under arctic
conditions, the customary procedure was to conduct the
tests at field stations within the Ft. Greely area during
the winter months, when the most severe weathe condi-
tions (50° below zero, or lower) prevailed in Alaska, and
then to begin the preparation of test reports in late
April or May, after the weather began to moderate.
(b) The customary procedure within the Division for
the preparation of a test report was for the branch chief
who had conducted or supervised the testing to type a
rough draft of the proposed report. The draft would be
considered by a review board (sometimes referred to as
the “murder board”), consisting of all the officers in the
Division, including the drafter of the report but exclud-
ing the Division Chief. The members of the review board,
meeting together, would consider, make comments on, and
suggest changes in the report with respect to matters
of content, grammar, ete. After the review board finished
with the report, it was customarily presented to the Di-
vision Chief for approval or disapproval. If approved by
the Division Chief, the report would be sent to the Test
Center’s typing pool, which would type the report on
mats for reproduction. After the mats were checked
within the Division for typographical errors, the report
would be signed by the Commanding Officer of the Test
Center, and it would then be forwarded to the Army’s
Test and Evaluation Command at Aberdeen Proving
Ground, Maryland, for reproduction and distribution.
19. (a) Plaintiff and his family made a trip from
Alaska to Japan in the summer of 1967. They returned
to Ft. Greely in August 1967.
39a
(b) When plaintiff returned to Ft. Greely in August
of 1967 from the trip to Japan, he found awaiting him
an official notice from the Department of the Army alert-
ing him to the fact that he was being ordered to Vietnam
for further duty, and that he was to report there not
later than 28 December 1967. As plaintiff had already
served in Vietnam on two occasions, once for a l-year
tour of duty and again for a 6-month tour of duty, and
as he knew other Regular Army officers with less service
in Vietnam, plaintiff believed that the message concern-
ing a prospective third tour of duty in Vietnam for him
had been issued by the Department of the Army through
an administrative mistake. He went to the Personnel
Office at Ft. Greely to discuss the matter, and was in-
formed that an inquiry would be made to the Depart-
ment of the Army about the possibility of a mistake.
A day or two later, plaintiff was informed by the Per-
sonnel Office that the alert notice was valid, and that he
was supposed to go to Vietnam in December 1967.
20. (a) At the time when plaintiff was notified in
August 1967 that he would be sent to Vietnam for an-
other tour of duty beginning in December 1967, plain-
tiff’s wife was pregnant with their second child. This
was a planned pregnancy, as plaintiff and his wife an-
ticipated that, in accordance with Army policy, plain-
tiff’s assignment to Ft. Greely would continue for at
least 2 years and that the family would be together at
the time of the birth and during the early infancy of
the second child. It was expected that the second child
would be born in December 1967.
(b) The first child of plaintiff and his wife was ap-
proximately 15 months old at the time when plaintiff and
his wife learned in August 1967 that plaintiff would
be sent back to Vietnam in December 1967.
21. (a) Plaintiff's wife was upset and angry over
what she regarded as the unfair and unjust treatment
40a
of her husband in being ordered back to Vietnam for
a third time, when other officers of her acquaintance
had less service in Vietnam. This feeling was inten-
sified because of the family situation, i. e., her first child
was only about 16 months old and she was pregnant
with the second child, whose birth was expected in De-
cember 1967, the month when her husband was supposed
to go back to Vietnam.
(b) Plaintiffs’ wife conveyed her feelings to plaintiff.
22. Under the date of 14 August 1967, plaintiff ten-
dered to the Department of the Army, through channels,
his unqualified resignation as an Army officer, “to be
effective by June 1968 or earlier.” The letter of resigna-
tion stated in part as follows:
2. I desire to tender my resignation because of
extreme compassionate circumstances and personal
family problems.
6. I do desire appointment in the United States
Army Reserve. Application attached.
23. (a) After plaintiff submitted his formal resigna-
tion to the Department of the Army through channels,
he telephoned the Infantry Officers Assisgnment Branch
at Army headquarters in Washington, D.C., and orally
informed the Assignment Branch regarding the submis-
sion of his resignation.
(b) Plaintiff was advised orally by the Assignment
Branch that his resignation would not be accepted.
(e) Plaintiff then orally requested that the date for
his reporting in Vietnam be postponed in view of the
expected birth of a child to his wife in December 1967.
Plaintiff was orally advised by the Assignment Branch
that a postponement of his reporting date would be
granted.
4la
(d) The telephone call referred to in this finding was
the only telephone call that plaintiff made to the Depart-
ment of the Army with respect to his prospective assign-
ment to Vietnam.
24. Plaintiff did not make any telephone call to any
Member of Congress with respect to his prospective as-
signment to Vietnam.
25. On 21 September 1967, plaintiff’s wife wrote a
letter to Senator Everett McKinley Dirksen in Wash-
ington, D.C. The letter stated in part as follows:
Too many [other officers] have never been
[to Vietnam] to merit my husband risking his life
once again for a situation that truly cannot be con-
sidered in defense of America itself. We are both
proud to do our part, both as a soldier in combat and
as a wife waiting at home, trying to be both mother
and father, trying to make his assignment go by
more quickly, and trying to keep his personality and
warmth alive for this [sic] babies, but enough is
enough. We feel we have met our commitment in
this current crisis more than amply. I feel it is
time that all families in the military circuit should
do their part, but that this particular hardship
should be passed around and shared. If, indeed, this
isn’t enough, perhaps it is time part of our stand-
ing reserve force help out the professional forces
158 04 while I still have my husband. I feel, too,
it is time for some of the other ladies to do their
share as I have done, with their husbands to put in
eighteen months as mine has done, before there is
another involuntary assignment to Viet Nam from
our family. It is this very situation of inequity of
combat assignments among career army officers and
the callous manner and lack of consideration for our
personal family problems shown to us by the in-
42a
fantry assignment branch which prompted my hus-
band to put in his resignation.
I am writing to you personally as we have ex-
hausted all other possibilities for help. I am sick
with fear that my having written to you will result
in my husband still having to go to Viet Nam, but
having his assignment altered so he will be in con-
stant danger. Please help us, Sir.
26. The letter referred to in finding 25 was replied
to by Senator Dirksen on 28 September 1967, as follows:
Although I can understand the concern expressed
in your good letter of the 21st, because of your hus-
band’s status as a commissioned officer and his
length of service I would be most reluctant to in-
itiate any official inquiry on his behalf without a
specific request from him.
However, if he feels there is some manner in
which I can be helpful with regard to the situation
you described, I would be happy to have him so
advise me.
27. Following the receipt of the letter from Senator
Dirksen, plaintiff wrote the following letter to Senator
Dirksen on 2 October 1967:
I have read the letter you sent my wife on 28
September 1967. We have the feeling you are try-
ing to warn us about something without stating so.
There are two specific questions I have about your
letter: Are you saying that if an official inquiry
were made, it would have an adverse effect on my
present situation while on active duty and that in
reality it wouldn’t do anything constructive in get-
ting my resignation accepted? Am I doing some-
thing illegal which could result in a dishonorable
43a
discharge or a court martial by seeking Senatorial
help?
If the answers to my questions are “no”, then I
request that you make an official inquiry about my
resignation. The point in question is why the army
won’t accept my resignation when I have met all
of the requirements of the army regulation for
resignation. I feel it unjust to keep me on active
duty when neither a national emergency nor a
declaration of war has been made. It is in the best
interests of my family that I leave the service at
this time; however, the army seems unconcerned
with my reasons for resignation, insisting that I be
separated from my family.
Please advise me.
28. Except for the letter referred to in finding 27,
plaintiff did not write any letter to any Member of
Congress with respect to his prospective assignment to
Vietnam.
29. (a) Plaintiff’s resignation as an Army officer was
rejected by the Department of the Army in a communi-
cation dated 28 September 1967 from the Adjutant Gen-
eral to plaintiff. This communication stated in part as
follows:
1. Current military requirements mke [sic] it
necessary that the Department of the Army exercise
a selective retention program for officer personnel.
* *
2. Vour resignation was considered in light of
that poliey and it was determined that overriding
military needs in your grade and branch required
your retention on active duty. You have therefore
been retained until June 1969. You may, if in the
future you still desire to be separated, resubmit your
resignation through channels in accordance with AR
44a
635-120 to be effected on or after the mentioned
date. *
(b) The communication from the Adjutant General
was transmitted to plaintiff through channels, and was
received by him on or about 17 October 1967.
30. On 18 October 1967, supplemental orders were
issued which changed the date on which plaintiff was
to report in Vietnam from 28 December 1967 to 25
March 1968, These orders further provided that plain-
tiff and his dependents were to depart from Ft. Greely,
Alaska, on 20 February 1968 for Chicago, Illinois; and
that plaintiff, after a month’s period of leave, was to
report on 23 March 1968 to a designated Army base on
the West Coast for transportation to Vietnam.
31. On 14 November 1967, plaintiff submitted to the
Adjutant General of the Army, through channels, a re-
quest that his unqualified resignation as an Army officer
be withdrawn.
32. The second child of plaintiff and his wife was
born in Alaska on 18 November 1967.
33. When plaintiff learned definitely that his resigna-
tion from the Army was not accepted, and that it would
be necessary for him to go to Vietnam for another tour
of duty in any event, he undertook to accelerate the
completion of the assignments on which he was working
at Ft. Greely, so that they could be completed before
20 February 1968, the date on which he and his family
were to leave Alaska.
34. (a) Plaintiff’s principal assignments at Ft. Greely,
as of the time when he learned that he would be leaving
that installation on 20 February 1968, related to the
testing under arctic conditions, evaluating, and report-
ing on a “starlight scope,” which was a night-vision sys-
tem to enhance the ability of Infantry personnel to see
45a
in the nighttime, and a survival kit for use by Infantry
personnel. Under normal operating conditions (see find-
ing 18), the testing of these items would have been ac-
complished during the winter months of 1967-68, and
the preparation of the reports would have been under-
taken in about April 1968. Due to plaintiff’s prospective
departure from Ft. Greely on 20 February 1968, plain-
tiff, after completing the testing of the starlight scope
and survival kit in the field, promptly began the prepara-
tion of his reports and, by accelerating the work, was
able to complete the reports in draft form well in ad-
vance of his 20 February 1968 departure date and in
sufficient time for the Division review board (or “murder
board“) to review the reports, in accordance with the
customary procedure, prior to plaintiff’s departure.
(b) The Division review board, which was under the
chairmanship of Major Gregg and which included plain-
tiff but did not include the Division Chief, devoted a
period of days to the draft reports which plaintiff had
prepared on the starlight scope and on the survival kit.
The review board found plaintiff’s draft report on the
starlight scope to be satisfactory, both as to format and
as to content. With respect to the draft report pre-
pared by plaintiff on the survival kit, the review board
found it to be satisfactory as to format, but concluded
that it did not include certain data which plaintiff had
developed during the testing process and which other
members of the review board regarded as pertinent to
the evaluation process. Such data were included in the
report by the review board.
(e) On one or two occasions while the review board
was considering plaintiff’s draft reports on the starlight
scope and the survival kit, plaintiff suggested that mem-
bers of the board should quit work at 5:00 o’clock and
go home. When such suggestion was made, Major Gregg,
as chairman of the review board, responded that it was
46a
necessary to complete the preparation of the reports in
final form before plaintiff left Ft. Greely and, conse-
quently, board members should resume work on the re-
ports in the evening, after supper. Board members, in-
cluding plaintiff, returned to the Division building after
supper and resumed work on the reports.
(d) By virtue of plaintiff’s action in accelerating the
preparation of draft reports on the starlight scope and
the survival kit, and the intensive work on the reports
done by the Division review board, including plaintiff,
the reports were completed in final form and typed on
mats prior to the time when plaintiff left Ft. Greely on
20 February 1968, so that the reports could be repro-
duced and distributed.
35. (a) The work done by plaintiff and another of-
ficer in connection with the testing of the starlight scope
was commended by the Army Electronics Command in
a communication from that command dated 5 February
1968. The communication stated in part as follows:
2. As test officers during the testing of the
AN/PVS-2 and AN/TVS-4 by the Infantry Branch
these men were faced with many unexpected dif-
ficulties due to major design deficiencies. The na-
tural tendency would have been to stop all testing,
but these men exercising personal initiative and at
great personal sacrifice gave freely of their own
time in coordinating with the representative of this
office to resolve these deficiencies. The outstanding
manner in which Major Grieg and Captain Bar-
tholomew cooperated with the technical representa-
tive of this office was significant in the resolution of
problem areas in the equipments and permitted cor-
rective actions that prevented extensive delay in
overcoming technical difficulties.
3. Without the extra effort and disregard for
personal comfort and convenience shown by Major
47a
Grieg and Captain Bartholomew, this work could not
have been accomplished. The very eminently satis-
factory manner in which this mission was ac-
complished reflects most highly on Major Grieg’s and
Captain Bartholomew’s capabilities and their devo-
tion to our nation’s defense.
(b) The communication referred to in pargraph (a)
of this finding was forwarded to plaintiff by the Com-
manding Officer of the Test Center, with a covering
communication which stated in part as follows:
1. It is with pride and pleasure that I forward
the attached correspondence from Robert E. Thonen,
* * * concerning the outstanding manner in which
you conducted the testing of the AN/PVS-2 and the
AN/TVS-4.
2. It is apparent from the attached correspondence
that your contribution to these tests does indeed
merit recognition. You can be justifiably proud to
have completed the tests with the many unexpected
difficulties due to major design deficiencies. Your
resourcefulness and tenacity in the collection of ad-
ditional data will permit the design engineers to im-
prove upon the items tested.
3. I add to Mr. Thonen’s comments that your
entire tenure as a test officer has been worthy of
such recognition, all tests having been conducted
under adverse conditions which you overcame to
successfully complete your assignments. Please ac-
cept my congratulations for a job outstandingly well
done.
36. (a) Plaintiff served in Vietnam on a third tour
of duty from 25 March 1968 to 10 March 1969. During
this tour of duty he was assigned to the 82nd Airborne
Division.
(b) Plaintiff was awarded two Oak Leaf Clusters for
his Bronze Star Medal on the basis of meritorious service
48a
during two separate periods while serving in Vietnam
from March 1968 to March 1969.
37. (a) Upon concluding his 1968-69 tour of duty in
Vietnam, plaintiff was assigned to the Seventh Army in
Germany. He was accompanied by his family. Plaintiff
served in Germany for 3 years.
(b) Plaintiff volunteered for a continuing overseas
assignment, and was transferred from Germany to the
Southern European Task Force of the Army in Italy.
(e) The European assignments referred to in this
finding lasted from 3 May 1969 to 2 July 1973.
38. (a) Plaintiff was considered, but not selected, for
promotion to the permanent grade of Major in the
Regular Army by an Army selection board that con-
vened on 24 January 1972.
(b) Plaintiff was considered, but not selected, for pro-
motion to the temporary grade of Lt. Colonel, AUS, by
a selection board that convened on 5 September 1972.
(c) Plaintiff was considered, but not selected, for pro-
motion to the permanent grade of Major in the Regular
Army by a selection board that convened on 31 January
1973.
39. Upon being notified that he had been passed over
a second time for promotion to the permanent grade of
Major in the Regular Army and that he would be re-
leased from active duty because of this, plaintiff was,
at his request, reassigned to Aberdeen Proving Ground,
Maryland, to await his release from active duty.
40. On 1 November 1973, plaintiff’s extended active
duty in the Army was terminated because he had been
considered, but not selected, on two occasions for pro-
motion to the permanent grade of Major in the Regular
Army.
41. (a) On plaintiff’s application, he was appointed
a Major in the Army Reserve on 12 October 1973, in con-
nection with his release from extended active duty.
49a
(b) As a Major in the Army Reserve (not on active
duty aintiff's military assignment at the time of the
filing of the petition was as Group 8-4, 11th Special
Forces Group, lst Special Forces, Fort Meade, Maryland.
42. (a) The major factor in the plaintiff's being
passed over for promotion (see finding 38) was the com-
paratively low Officer Efficiency Rating (“OER”) that
was rendered on the plaintiff for the last 3 months of his
tour of duty as a member of the Division at the Test
Center, Ft. Greely, Alaska.
(b) Three OER’s were rendered on plaintiff in con-
nection with his performance as a Test Officer in the
Division at the Test Center. The first covered plain-
tiff’s performance from 2 June 1966 to 1 June 1967; the
second covered plaintiff’s performance from 2 June 1967
to 16 November 1967; and the third (i.e., the OER of
critical importance in the present case) covered plain-
tiff’s performance from 17 November 1967 to 20 February
1968.
(e) Plaintiff’s composite score on the first OER men-
tioned in paragraph (b) of this finding was 203.7.
(d) Plaintiff’s composite score on the second OER men-
tioned in paragraph (b) of this finding was 209.1.
(e) Plaintiff’s composite score on the third OER men-
tioned in paragraph (b) of this finding was 166.0, which
represented a decline of 43.1 points when compared with
the OER for 2 June - 16 November, 1967, and a decline
of 37.1 points when compared with the OER for 2 June
1966 - 1 June 1967.
43. (a) In the OER covering plaintiff’s performance
from 17 November 1967 to 20 February 1968, the rater,
Major Gregg, made the following comments:
MAJ John Miline [sic] Grieg, 085417, has per-
formed his assigned duties in a superior manner
during the rating period.
50a
MAJ Grieg displayed superior technical compe-
tence in conducting arctic winter environmental tests
on the Individual Aid and Survival Kit and the
Weapon-sight, Night Vision. Each test was con-
ducted in a manner that assured comprehensive use
of the test items under arctic winter conditions. The
thoroughness of these tests is reflected by the test
data that was recorded.
After the tests were completed, MAJ Grieg failed
to prepare the reports of tests in the proper format
or within the required time frame. When questioned
about the progress that he was making on the re-
ports, he displayed a very negative attitude.
This officer is exceptionally well versed in numer-
ous military respects and is proficient in the areas
that he enjoys or agrees with.
(b) The indorser, LTC Williams, on the OER for 17
November 1967 to 20 February 1968 made the following
comments:
MAJ Grieg was superior officer until he received
his orders to Vietnam. The last 30 days that he was
assigned to this Test Division his dependability was
seriously affected. He conducted two arctic service
tests during the test season and gathered adequate
test data. One of the test reports he wrote had to
be completely rewritten by other officers of this Test
Division; the other test report had to have major
modifications and corrections made on it. MAJ
Grieg is capable of producing superior test reports
as indicated by the reports he submitted for the pre-
vious test season. During MAJ Grieg’s last 30 to
45 days that he was assigned to this test division he
displayed a very negative attitude toward the Army.
(e) The statement by the rater that plaintiff failed to
prepare the reports of tests in the proper format was not
correct.
5la
(d) The statement by the rater that plaintiff failed to
prepare the reports of tests within the required time
frame was not correct.
(e) The statement by the rater that plaintiff, when
questioned about the progress that he was making on the
reports, displayed a very negative attitude was not
correct.
(f) The statement by the indorser that plaintiff’s de-
pendability was seriously affected during the last 30 days
of his assignment to the Division was not correct.
(g) The statement by the indorser that one of the test
reports prepared by plaintiff had to be completely rewrit-
ten by other officers of the Division was not correct.
(h) The statement by the indorser that the other test
report had to have major modifications and corrections
made on it was misleading, although the review board
decided that additional data which plaintiff had developed
should be included in one report.
(i) The statement by the indorser that plaintiff dis-
played a very negative attitude toward the Army during
the last 30 to 45 days of his assignment to the Division
was not correct.
(j) The OER for the period from 17 November 1967
to 20 February 1968 was prepared after plaintiff’s de-
parture from Ft. Greely, and plaintiff did not see it until
1972. After plaintiff learned that he had been passed over
for promotion to permanent Major in 1972, plaintiff
visited Army Headquarters in Washington, D.C., exam-
ined his personnel file, and noted the relatively poor OER
for the period from 17 November 1967 to 20 February
1968.
(k) Neither Maj. Gregg nor LTC Williams ever dis-
cussed with plaintiff while he was at Ft. Greely any sup-
posed deficiencies in his performance.
52a
44. The OER for the period from 17 November 1967
to 20 February 1968 did not represent an accurate, ob-
jective, fair, or just evaluation of plaintiff’s performance
during such period.
45. (a) The composite score of 166.0 on plaintiff’s
OER for the period from 17 November 1967 to 20
February 1968 was, by a substantial margin, the lowest
composite score on any OER for plaintff during his entire
military service.
(b) Excluding the OER for the period from 17 No-
vember 1967 to 20 February 1968, the composite scores
of the OER’s that were rendered on plaintiff during his
active military service averaged 202.2.
46. (a) On 5 October 1973, plaintiff filed with the
Army Board for Correction of Military Records (“the
ABCMR”) an application for the correction of his mil-
itary records under the provisions of 10 U.S.C. § 1552
and Army Regulations (“AR”) 15-185.
(b) In the application, plaintiff requested: the voiding
of his failure of selection for promotion to the permanent
grade of Major by the 24 January 1972 and 31 January
1973 selection boards; the correction of his records to
show that plaintiff was selected for promotion to the
permanent grade of Major by the 24 January 1972 selec-
tion board and thereafter promoted to the permanent
grade of Major, with a designation of an appropriate
date of rank; the voiding of plaintiff’s failure of selec-
tion for promotion to the temporary grade of Lieutenant
Colonel by the 5 September 1972 selection board; the
correction of plaintiff’s records to show that plaintiff was
selected for promotion to the temporary grade of Lieu-
tenant Colonel by the 5 September 1972 selection board
and thereafter promoted to the temporary grade of Lieu-
tenant Colonel, with a designation of an appropriate date
of rank; and such other and further relief as might be
deemed necessary or appropriate in order to accord
plaintiff full and complete relief.
53a
47. (a) On 7 February 1974, plaintiff filed an appeal
under the provisions of AR 623-105, in which he re-
quested that the OER for the period from 17 November
1967 to 20 February 1968 be voided and expunged from
his records.
(b) On 15 February 1974, plaintiff’s AR 623-105 ap-
peal was transmitted from the Evaluation Report Branch
of the United States Army Military Personnel Center,
thru the Infantry Career Branch, to the Special Review
Board in the Office of the Deputy Chief of Staff for
Personnel.
(e) In a comment dated 19 February 1974, the Chie
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