Petition for Writ of Certiorari — Weide v. United States, 106 S. Ct. 74 (1985) (No. 84-1873)

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U Office -Supieme Court, US

84-1873 PPE

MAY 29 1995

ALEXANDER oT

L STEVAS

IN THE a CLERK

ee.

SUPREME COURT OF THE UNITED STATES

October Term, 1984

GEORGE JOSEPH WEIDE, JR., Petitioner

THE UNITED STATES, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Homer A. Walkup

Counsel of Record

Homer A. Walkup

2501 Ridge Road Drive

Alexandria, VA 22302

(703) 836-8281

Counsel for Petitioner

QUESTIONS PRESENTED

(1) May a secretary of a military department

lawfully subdelegate -- subject to no prescription

of standards and with no provision for review after

the fact -- the responsibility imposed upon such

secretary, designated by office, by Section 207

of the Legislative Reorganization Act of 1946

(later reenacted and codified without here per-

tinent change as §1552(a) of Title 10, U. S. Code),

to make a judgmental determination as to whether

correction of a military record in a particular

instance is "necessary" in order to correct an

asserted error?

(2) Does any presumption of regularity and

validity obtain as to acts by government officers

and the written records made thereof, in the face

of impeaching allegations which are of a nature

to permit objective investigation and analysis?

(3) Does the Due Process Clause of the Fifth

Amendment require that factual allegations, not

on their face improbable as contrary to common

experience, which are contained in a petition in-

stituting an action in a court of the United

States, be accepted as the basis for decision by

the court to the extent that such allegations have

not been specifically countered by the defendant

and the plaintiff has not been given any oppor-

tunity to present evidence in support of such

allegations?

(4) Consonant with the Due Process Clause of

the Fifth Amendment, may the equitable doctrine of

laches be validly asserted as a basis for moving

to dismiss a petition addressed to a court of the

United States, in the absence of any assertions by

the defendant, (a) that it:-may reasonably be in-

ferred, from specified allegations contained in

the petition that the plaintiff delayed institu-

ting the action, motivated by inequitable consid-

erations; and (b) that the defendant has been

harmed by such delay by the plaintiff in specified

particulars which are set forth in the plaintiff's

petition?

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED.

TABLE OF AUTHORITIES

PETITION FOR CERTIORARI.

OPINION BELOW.

JURISDICTION.

CONSTITUTIONAL PROVISIONS INVOLVED.

STATUTORY PROVISIONS INVOLVED.

PROVISIONS OF REGULATIONS INVOLVED.

STATEMENT OF FACTS.

REASONS FOR GRANTING CERTIORARI.

APPENDIX

TABLE OF AUTHORITIES

CASES CITED

Adkins v. United States, 228 Ct. Cl.

909 (1981).. rae

United States ex rel. Arant v. Lane,

249 U. S. 367 (1919).

Brundage v. United States, 205 Ct. Cl.

502, 504 F 2d 1382 (1974),

cert. denied 421 U.S. 198

(1975). rey oceans

Cason v. United States, 198 Ct. Cl.

650, 461 F 2d 782 (1972).

Cason v. United States, 200 Ct. Cl.

424, 471 F 2d 1225 (1973).

Chappell et al. v. Wallace, et al.

462 U. S. 296 (1983).

Feres v. United States, 340 U.S. 135

(1950). : ee

Joint Anti-Fascist Refugee Committee

v. McGrath, 341 U.S. 123

I ol lag ekg io ales cee

Sanders v. United States, 219 Ct. Cl.

285, 594 F 2d 604 (1979).

Weide v. United States, 4 Cl. Ct. 432

(1984). nk as Goes

Page

23, Aaa

lla

an, &30

af, +28

a fe My 2

26, 28, 13a

18, 20n

20, 26

L368, ice,

3, l6a

TABLE OF AUTHORITIES

(Continued)

CONSTITUTIONAL PROVISIONS CITED

Art. I, Section 8, Clause 14. .... 5

a Poe lO Re eee 3

SS, ty ee ee eo ee A 5

STATUTORY PROVISIONS CITED

Civil Service Reform Act of 1978

Pas DOs ws ts ek st wl lla

Defense Officer Personnel Management

Act, PL 96-513, 94 Stat.

2835-2866 (1980). .... 5

Legislative Reorganization Act of 1946,

c. 753, 60 Stat. 830

Section 131, 60 Stat. 831,

2 U.S.C. 190g.

Section 207, 60 stat 837. . 2s

Title 10, U. S. Code, § 1552(a). a ae

Title 10, U. S. Code (1976), § 3061. 6, 80a

w 1 tt wt tt ? § 3062 6, 80a

BY tt ! tt LA tT § 3063 6, 80a

tt " " " " " § 3297. 14, 82a

wt tt wv tw tt it § 3303. 6, 84a

Title 28, U. S. Code § 1254(1). 4

tT tt tt w tt § 1491 4

Lal 1 tw tt tf § 2101 : ; 4

Titie 37, U. &. GCoG@e, 8 206. ..... Sa

TABLE OF AUTHORITIES

(Continued)

PROVISION OF REGULATIONS CITED

Army Regulations (AR) 614-6,

January 8, 1963.

Army Regulations (AR) 623-105,

September 10, 1970.

OTHER AUTHORITIES CITED

Wigmore, On Evidence, §2534 (3rd ed.,

Little, Brown & Co., Boston

(1940).

Page

8, 85a

Meters = 2 |= = ee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

George Joseph Weide, Jr., Petitioner

The United States, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Petitioner, George Joseph Weide, Jr., seeks

a writ of certiorari through this petition to

present this Honorable Court with an opportunity

to establish that intramilitary procedures for

the adjustment of civil conflicts between an in-

dividual member of the Armed Forces and a mili-

tary personnel class or the service as a whole,

were intended by the Congress to be substantive

in nature, and are governed by basic require-

ments of Due Process of Law, especially oppor-

tunity to present issues, to have issues pre-

sentec given two-sided consideration by an im-

partial person or body, and to have presented

issues decided on the record, subject to review

by a politically appointed Secretary, for whose

decision both he and the appointing Administra-

tion may be held publicly accountable. Chappell

et al. v. Wallace, et al., 462 U.S. 296 (1983),

indicates the statutory procedure followed by

the petitioner to be the sole means whereby

judicial review may be accorded to a member of

the Armed Forces denied direct access to United

States Courts by reason of the Feres principle,

necessarily implying that such procedure and the

review thereof were intended to be of a meaning-

ful quality. Petitioner respectfully requests

that a Writ of Certiorari issue to review the

final judgment of the United States Court cf

Appeals for the Federal Circuit, decided January

18, 1985, petition for rehearing denied February

28, 1985, affirming a decision of the United

States Claims Court rendered February 17, 1984,

So Ci. Ge. 252, Copy of Judgment Order, Appx. i a.

OPINION BELOW

Appendix la through 10a sets forth a copy

of the unpublished opinion of the Court of Appeals

for the Federal Circuit. Appendix lla through

15a sets forth the issues presented upon that

appeal, which are identified in the opinion only

by Roman numerals. The opinion of the Claims

Court, 4 Cl. Ct. 432, is copied in the Appendix,

16a through 27a. The petition of the plaintiff

(Petitioner here) which initiated the action is

essential to demonstrate that the issues raised by

the plaintiff were not considered, and is copied

in the Appendix, 28a through 79a.

JURISDICTION

This petition for a writ of certiorari is

filed within ninety days of the denial by the

Court of Appeals for the Federal Circuit of the

Appellant's petition for rehearing (Appx.,' i a)

in accordance with subsection (c) of Section

2101, Title 28, U. S. Code, and Rule 20.2 of the

Rules of this Court. The jurisdiction of this

Court is invoked under § 1254(.) of Title 28, U.S.

Code. The initial jurisdiction of the United

States Court of Claims [becoming the United States

Claims Court as of October 1, 1982] was founded

upon § 1491 of Title 28, U. S. Code, providing,

in pertinent excerpt:

The Court of Claims shall have juris-

diction to render judgment upon any claim

against the United States founded either

upon the Constitution, or any Act of Con-

gress, or any regulation of an executive

department. . .To provide an entire rem-

edy and to complete the relief afforded

by the judgment, the court may, as an in-

cident of and collateral to any such judg-

ment, issue orders directing restoration

to office or position, placement in appro-

priate duty or retirement status, and

correction of applicable records, and such

orders may be issued to any appropriate

official of the United States. In any

case within its jurisdiction, the court

shall have the power to remand appropriate

matters to any administrative or executive

body or official with such direction as it

may deem proper and just.

CONSTITUTIONAL PROVISIONS INVOLVED

Article I, fection 8, Clause 14, provides

that the Congress shall have power:

To make Rules for the Government and

Regulation of the land and naval Forces;

Article II, Section 2, Clause 2, relating

to powers of the President of the United States,

provides in pertinent excerpt:

- « « he shall nominate, and by and with

the Advice and Consent of the Senate, shall

appoint. . . all other officers of the

United States, whose Appointments are not

herein otherwise provided for, and which

shall be established by Law. ..

Amendment V provides, in pertinent excerpt:

No person shall. .. be deprived of

life, liberty, or property, without due

process of law...

STATUTORY PROVISIONS INVOLVED

All events constituting the basis of the

Petitioner's initial claim took place prior to

December 12, 1980, the date of approval of the

Defense Officer Personnel Management Act (PL 96-

513, 94 Stat. 2835-2866). References are therefore

made to statutes which in several instances were

greatly modified or repealed by the 1980 legis-

lation. For convenience of reference, the pertin-

ent text of such statutes is set forth in the

Appendix, page 80a et seq.

The Petitioner was appointed as a Second

Lieutenant in the Regular Army, by the President of

the United States, by and with the advice and con-

sent of the Senate, pursuant to Art. II, Sec. 2,

Cl. 2 of the Constitution, and was subject to sep-

aration (otherwise than by direct dismissal by

the President, acting individually and personally)

only as provided by statutory law. After such ap-

pointment, the Petitioner was assigned by the

Secretary of the Army to a basic branch -- the

Signal Corps, in accordance with 10 U.S.C. § 3063

(Appx. 80a - 8la), and § 3283 (b) (Appx. 82a).

Promotion of Petitioner was governed by § 3297

(82a). Particular attention is invited to the

provisions of subsection (e) of § 3297 (82a),

which prohibited officers from addressing to selec-

tion boards considering their records, any reflec-

tion upon the character, conduct of motives of any

officer, or criticism of any officer. The later

enacted 1980 officer personnel legislation con-

tains no such prohibition (82a-83a). § 3303 man-

dated discharge of certain Regular Army officers

who had twice failed of selection and were not

eligible for retirement under any provision of

law. (84a)

The statute with which Petitioner's claim is

principally concerned is Section 207 of the Legis-

lative Reorganization Act of 1946, later reenacted

and codified without here pertinent change as Sub-

section 1552(a) of Title 10, U. S. Code. The

essential effect of that statute was to delegate,

to the secretary of a military department, the

power which had theretofore been exercised exclus-

ively by the Congress and the President, through

the enactment and approval of private relief

legislation, to correct military records of that

department. The statute has from the outset

specified that the secretary shall act "through"

a civilian board in exercising that delegated

authority, and permits a correction of a record

only when the secretary considers it necessary

to correct an error or to remove an injustice.

PROVISIONS OF REGULATIONS INVOLVED

The Appendix, beginning at 85a, sets forth

pertinent provisions of Army Regulations. These

are Army Regulation (AR) 614-6 of January 8, 1963,

governing assignments of personnel, and requiring

"clearance" by the central Department of the Army

Headquarters branch before effecting a permanent

transfer of a member assigned to that branch, and

specifying detailed justification which shall be

submitted in writing in requesting such "clearance; ”"

and AR 623-105, governing submission of effective-

ness reports, making record evaluations of officers.

STATEMENT OF FACTS

As a Distinguished Military Graduate of the

University of Scranton in 1970, the Petitioner re-

ceived the distinction of being tendered an Appoint-

ment in the Regular Army, which he accepted. He

was assigned by the Secretary of the Army to the

Signal Corps basic branch (Appx. 80a), and after

completing basic training was assigned to duty

appropriate to that branch, as the sole authorized

Communications Officer of a mechanized infantry bat-

talion at Fort Carson, Colorado. The Battalion was

one of sixty-some units under the Commanding Gener-

of the Fourth Infantry Division, headquartered ne

Fort Carson. The Fourth Infantry Division had auth-

Le a a a

ority to reassign officers among component units

of that Division, but was regulated by AR 614-6

(86a) as being required to obtain central depart-

mental branch "clearance" in advance of making a

permanent reassignment of a member of that branch.

Special skill of Petitioner as a rifle marks-

man (acquired prior to entering the service) made

it appear locally desirable to utilize his services

in that capacity rather than in performing communi-

cations duties appropriate to his Signal Corps

branch assignment. He was removed from the

communications position in the Battalion and re-

placed by another Signal Corps officer, and was,

as it was thought at the time, permanently trans-

ferred to another command unit under the Fourth

Infantry Division, which unit was exclusively

concerned with maintenance, development, and

administration of rifle marksmanship teams.

No "clearance" for Petitioner's transfer

was obtained from Signal Corps Branch in Headquar-

ters of the Department of the Army. Entries made

in Petitioner's military record at the time: made

no mention of the transfer or of the circumstances

which had motivated it. Petitioner was successful

in the new assignment. Possibly due to the fact

that his success might attract attention to his

incompatible position, he was removed from that

assignment. When he was removed, there was no Sig-

nal Corps position for an officer of his grade in

any of the Fourth Infantry Division units. He

was reassigned to the Battalion from which he had

been transferred over 100 days before, with the

understanding that he would perform general service

duties only until such time as a proper Signal

Corps position became available in another command

unit.

Petitioner was in the Battalion on his second

assignment from March 7 through July 11, 1971. For

the first 33 days of that period, he occupied a desk

outside the personnel office (adjutant or S-1) and

performed such tasks as the personnel officer as-

signed. He was then directed by the Battalion

Commander to p*»sform the newly created function

of VOLAR (Volunteer Army) Officer,. under the

Operations Section (S-3). This entailed his moving

to a different building, and he had absoiutely no

Anca ehrerh

contact with the personnel officer thereafter.

The remaining 92 days that he served in the Battal-

ion on his second assignment were exclusively

devoted to duties as VOLAR Officer. During the

first 76 days, he was supervised exclusively by

Major Park as the S-3; as of June 25, 1971, Major

Park became the Executive Officer of the Battalion,

and a then Captain Sowa was assigned to the S-3

position. In early July, 1971, Petitioner was in-

formed that a Signal Corps assignment had become

available, and he was ordered to that position on

eucy i232 or i2. He was warmly congratulated upon

leaving the Battalion upon the fine job he had

done in establishing the position of VOLAR Officer.

Some six months later, on reviewing his rec-

ord while on leave in the Washington, D. C. area,

the Petitioner found that his military record had

been grossly falsified, with the apparent motive

of concealing the actions of officers superior

to him in effecting his transfer from the Battalion

in November, contrary to Army Regulations. Fal-

sification was effected through the medium of an

Officer Effectiveness Report (OER) which was down-

graded relative to one submitted when the Petitioner

had been transferred from the Battalion the previous

November, but the harm that has resulted was not

due to the lowered evaluation. The Department of

the Army; the Claims Court; and the Court of Appeals

for the Federal Circuit have taken a narrow view

of the Petitioner's contentions, and he has at

no time been given any hearing or opportunity to

introduce evidence as to the true nature of his

claim.

The Petitioner's record was falsified to con-

ceal the fact that he had been transferred from the

Battalion. It was falsely represented that he had

remained in the Battalion continuously, but as of

December 1, 1970, with no explanation was removed

from the position of Communications Officer and

made “Acting Assistant to the S-1" -- a nonexistent

position in the Battalion organization.

In 1973, as a result of an administrative pro-

test by Petitioner, the record was altered to re-

flect that he had been on Special Duty in another

unit from December 1, 1970 through March 6, 1971,

but no explanation was provided as to how he hap-

pened to be assigned to such duty, or why it was

that the Battalion could better function (apparent-

ly) without the single Communications Officer it

was authorized to have than with the Petitioner --

both during the December - March period when he

was indicated as having been in the other unit, and

from March to July, after he returned to the Battal-

ion. The comment contained in the evaluation, to

the effect that he had tried hard, but was handi-

capped by working out of his specialty, and had

been assigned to another command for that reason,

further added to the questions arising in the mind

of any reviewer of his record.

The possible implications that Petitioner's

removal from the Communications Position may have

been due to some blunder or suspected character

defect on his part, provided a defensible justifi-

cation for nonselection of Petitioner for Regular

Army retention, to anyone who might have entertained

bigoted resentment of Petitioner -- as a member

of the ethnic majority -- having later served super-

latively as Race Relations/Equal Opportunity Of-

ficer with the First Signal Group, 9th Infantry

Division at Fort Lewis, Washington.

Petitioner was not selected for Regular Army

retention, notwithstanding a 100% selection oppor-

tunity. Implications of record entries relating

to his initial ten months of duty at Fort Carson

are the only discreditable matter contained in

Petitioner's military record. He was precluded by

the prohibition of § 3297 (e) (Appx. 82a) from

himself inviting attention to the falsification

of his record, and efforts to obtain administra-~

tive correction resulted only in changes to the

extent of eliminating readily demonstrable fal-

sification by three officers superior to him.

Petitioner made repeated applications to

the Secretary of the Army for exercise of the

delegated legislative authority conferred upon

the Secretary by Section 207 of the Legislative-

Reorganization Act of 1946 (10 U.S.C. § 1552 (a)),

but no such application was referred to a political-

ly appointed secretary. Petitioner has at no

time been given a hearing, nor have his asser-

tions of error been discussed on the merits,

either in the Department of the Army or in the

Claims Court or Court of Appeals for the Federal

Circuit.

REASONS FOR GRANTING CERTIORARI

(1) Determination of Petitioner's applications

to obtain correction of his military record have

essentially been made by military personnel admin-

istrators “acting through” the Army Board for Cor-

rection of Military Records, rather than a polit-

ically appointed secretary so acting, as contem-

plated by § 1552 (a). Such was the result that

the Congress intended to preclude by requiring

that the military department secretary act through

a civilian board. In the absence of supervision

or review by a politically appointed secretary

on a continuing basis, a civilian employee of a

military department cannot afford to act counter

to the wishes of military officers. The officers

will be there after the secretaries have all been

replaced, and they have long memories. The only

way in which a civilian can follow the dictates of

his own conscience is through being able to point

out that the action cannot get through the civ-

ilian secretary who consistently reviews the cases

and makes up his own mind concerning them.

Blanket delegation of the authority to de-

termine which %1552(a) applications are, and

which are not, brought to the attention of a

politically appointed civilian secretary, is

tantamount to placing full control in the hands

of military personnel administrators, who are

rarely inclined to acknowledge any fault or error

in “the system," and whose tendency is to

prefer the “brush off" to analytical inquiry.

In the absence of a civilian control presence --~-

as existed when military personnel administrators

might be called to account by having to justify

their positions before a Congressional ‘mrbtom-

mittee considering a private relief bill -- the

considerable sums spent in all services on

records correction administration, will be

largely wasted.

(2) The so-called “presumption of due performance

———————

of official duty" was exploded by Wigmore many

years ago.* as being "more often mentioned than

enforced, and its scope as a real presumption is

indefinite and hardly capable of reduction to

rules." Where no other evidence is available,

then obviously the record must stand unless it

relates something contrary to notorious physical

fact. Once the record is challenged, however,

then the process becomes one of weighing respec-

tive probabilities.

In this case, in which military personnel

administrators tacitly recognized and "covered

up" blatant falsehoods of three responsible

officers, e. g., that an officer had been in

"daily contact” with Petitioner during a period

when the officer so representing had been in

Vietnam and the Petitioner at Fort Carson, Colo-

rado, in another command, then to such extent as

there may be any controlling "presumption," it

should be the maxim, "falsus in uno, falsus in

omnibus."

The net effect of record falsification

* Wigmore, On Evidence, (3rd ed., Little, Brown

& Co., Boston, 1940), § 2534

in this instance has been to cast upon the Petition-

er the onus for poor command judgment on the part

of his far more experienced superiors. The offi-

cers who made the errors have indicated a willing-

ness to acknowledge them, short of donning sackcloth

and ashes. The mythical “presumption of regularity”

should no longer preclude listening to what they

have to say.

(3) In failing to make the allegations of

the plaintiff's petition (Appx. 28a) the point of

departure for judicial inquiry, the Claims Court

denied the Petitioner basic due process of law.

Joint Anti-Fascist Refugee Committee v. McGrath is

squarely in point. Quoting from the principal

opinion of Mr. Justice Burton, in which Mr. Jus-

tice Douglas joined, 341 U. S. 123 (1951), at 126:

We conclude that if the allegations of

the complaints are taken as true (as they

must be on the motion to dismiss) the

Executive Order does not authorize the

Attorney General to furnish. ..a list

containing such designations as he gave

to each of these organizations. . . Under

such circumstances his own admissions

render his designations patently arbitrary

because they are contrary to the alleged

and uncontroverted facts constituting the

entire record before us. The Complaining

organizations have not been afforded any

Opportunity to substantiate their allega-~

tions but at this stage of the proceedings

the Attorney General has chosen not to deny

their allegations and has not otherwise

placed them in issue.

In a separate concurring opinion of Mr. Justice

Frankfurter, 341 U. S. 123, 169-172, and a

separate opinion of Mr. Justice Douglas, 342 U. s.

123, 170, notice and Opportunity to be heard are

indicated as being fundamental to due process

of law.

As in Chappell et al. v. Wallace, et ak.

462 U. S. 296 (1983), there is an argument to

be made from the standpoint of preserving military

discipline, for not giving military subordinates

free and open access to United States courts to

challenge their superiors. But, as Chappell

points out, the Congress has specifically provided

the §1552(a) records correction procedure as an

available intramilitary forum, and the civilian

politically appointed secretary is in an ideal

position to reconcile the competing interests

among maintenance of command authority, preserving

a sound recruiting climate, and presenting a

Suitable public image. Chappell notes the avail-

ability of limited judicial réview under the doctrine

of Sanders v. United States, 219 Ct.

Cl. 285,

594 F. 2d 804 (1979), in cases in which undue empha-

sis may have been placed upon the interests of the

group as opposed to individual concerns.

For the intramilitary procedure of § 1552(a)

to function as a satisfactory alternative to

direct United States Court access, the observation

must be heeded that "when Congress has given an

administrative agency discretion to determine its

own procedure, the agency has rarely

dispose of the rights of individuals

hearing, however informal.* Being given a

chosen to

without a

"hearing"

in a meaningful sense, means more than being given

an opportunity to speak or write. It implies also

being listened to or read, and receiving a response.

In cases such as that of Petitioner,

certainable issue of fact and of the

pretation and application of service

directives and procedures, it is the

involving as-

proper inter-

administrative

essence of

arbitrariness and capriciousness to refuse to

hear out and answer a complainant.

Certainly if

* Mr. Justice Frankfurter, separate concurring op-

inion in Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U. S. 123, 168-169 (1951)

instances of claimed deprivation of civil rights

are to be presented and determined under the

§ 1552(a) procedure, as indicated by Chappell,

then those who have presented grievances in a re-

spectful manner must receive something more infor-

mative than: "Applicant has failed to submit suf-

ficient relevant evidence to demonstrate the exis-

tence of probable material error or injustice to

warrant a formal hearing." That boilerplate rep-

resents the sum total of return thus far for an

eight-year investment of effort and resources on

the part of the Petitioner.

(4) The very fact that the Claims Court did not

decide the case of Petitioner on the basis of laches,

provides one of the strongest arguments for examin-

ing the abuses which are being perpetrated by

misapplication of that doctrine. It is, at histor-

ical base, nothing more than a means of applying

statutes of limitations to equitable causes, and

the rules are that one bringing a suit after the

period when a comparable action at law would be

barred, bears a burden of showing cause why his

suit in equity should not be barred also. One

bringing a suit, within the period of limitations

may also be barred by laches, but the reason is

that he lacks clean hands, in that he delayed

bringing his suit when he could have filed ear-

lier, and it may well have been that such delay

was deliberate, either to gain an advantage for

himself or to prejudice the ability of the oppon-

ent. In the latter instance, it is the opponent

who bears the burden of establishing both probable

inequitable motivation of the delay, and specific

harm that has been suffered by reason of the

delay.

In Brundage v. United States, 205 Ct. cl.

502, 504 F. 2d 1382 (1976), cert. denied, 421 U.S.

198 (1975), the Court of Claims fell into the

error of presuming harm to the government from

delaying the filing of a military pay case, with-

out requiring that the government show either

probable inequitable motivation in delaying or

specific resulting harm, and such ratio decidendi

was carried to a new height in Adkins v. United

States, 228 Ct. Cl. 909 (1981).

There is a basic inconsistency between hold-

ing that one may be chargeable with laches, even

though his delay has been occasioned by pursuing

a §1552 application for correction of his record,

and Sanders v. United States, supra, holding that

arbitrary and capricious action on a §1552 appli-

cation is the sole basis on which the Claims

Court may review such action. One basis cited

for charging Adkins with laches, even though he

had filed within the statutory six-year period of

limitations, was that with respect to some of the

earlier subject matter, ". . .He could, however,

have brought a mandamus action in district’ court

before that date to challenge his record and

passovers." (228 Ct. Cl. 909, 911). The 1983

decision of this Court in Chappell v. Wallace,

Supra, renders very dubious the authority of a

District Court to entertain an action on matters

thus involved with military discipline, and

would indicate that if another Adkins were to

file such an action to-day, he would be told to

seek relief by way of a § 1552 application, and

then might find that he would be denied Claims

Court review of the §1552 action -- no matter

how arbitrary and capricious it may have been --

because the military department had delayed too

long in processing that application.

The practical vice of this misguided

position is that the period of delay that is

too le:g is within the personal discretion of

each individual judge in each case. A lawyer

representing the government is constrained to

raise the laches issue in every case. Such

will represent a far simpler and quicker disposi-

tion than a trial on the merits. Since he or

she is not required to allege any basis other

than the mere fact of delay by the plaintiff in

instituting the action, no investigation is

required. By repeating platititudes concerning

laches, the necessity of thought, research, and

painstaking examination of records and knowledge-

able persons is delayed, and may be avoided alto-

gether.

By avoiding a decision on the issue of

laches, and granting a defense motion for summary

judgment, as was done in the Claims Court in the

instant case, a grossly unfair advantage is given

the defendant. The judge avoids reversal on the

laches issue, which the plaintiff has addressed

as the only one raised, and on appeal the plain-

tiff can do little more than reassert the factual

situation, which the appellate court assumes to

have been fully explored by the trial court and

resolved contrary to the plaintiff's assertions.

It is basic sound pleading practice to dis-

pose of one contested issue at a time, fF the

defense chooses to raise the laches defense, it

should be decided on the record, once and for all,

before going into the factual merits. fThere

should follow a pre-trial conference between

counsel to settle upon agreed facts, with trial

following as to issues in dispute. To such

extent as the Department of the Army did not

come forward with any showing that factors other

than plaintiff's erroneous record may have caused

plaintiff's nonselections, he was entitled to

rely upon the inference that such was the cause.

The Department of the Army had available to it

the data necessary to make such a showing if it

could be made. The laches issue was used to

obscure this basic proposition of procedural

fairness, thereby denying due process of law to

the petitioner.

CONCLUSION

A writ of certiorari should issue to the

Court of Appeals for the Federal Circuit to permit

full consideration by this Court of the questions

presented concerning constitutionally sound pro-

cedures for review by military departments of

administrative action completed in the past,

anc concerning the proper ambit of judicial review

thereafter and procedures for conducting such

review. Sanders v. United States, 219 Ct. Cl.

285, 594 F. 2d 504, broke new ground in 1979

in holding judicially reviewable determinations

made under Section 207 of the Legislative Reorgan-

ization Act of 1946, to such extent as those de-

terminations were found to have been arbitrary,

capricious, unsupported by substantial evidence,

or otherwise not in accord with law. Chappell

vy. Wallace, 462 U. S. 296 (1983), vastly enhanced

the importance of the general question by holding

~ flied lle

ETT, I NE EAT TCRTES eToe

that in situations where serious disruption of

military discipline might result from actions

filed by military personnel in courts of the

United States, access to such courts would be

denied, and the personnel concerned relegated

to such intramilitary relief procedures as the

Congress may have by law provided. The proce-

dure afforded by § 1552, U. S. Code, stemming from

Section 207 of the Legislative Reorganization Act

of 1946, is the only intramilitary procedure

which explicitly undertakes to give a member of

the armed forces a civilian approach to and

determination respecting problems encountered

in military administration. It is further the

only such procedure as to which an avenue of

possible review in courts of the United States,

however circumscribed such review, has been

opened.

The practice followed respecting the plea

of laches in military pay cases since the 1972

decision of the Court of Claims in Cason v. United

States, 198 Ct. Cl. 650, 461 F. 2d 782, has gone

far toward destroying military law practice in

the field of challenging administrative action

taken in the military departments. To such ex-

tent as Chappell v. Wallace may produce new

potential clients, counsel to represent them

will become unavailable unless this field of the

law is made one in which there is two-sided

procedural fairness and reasonable predictability

of result. Cases such as that of the instant

petitioner which present genuine issues of

factual and legal error -- as distinguished from

nebulous assertions of “injustice” -- are rela-

tively rare, and when one arises it is disheart-

ening to have it disposed of on the Procrustean

bed. For this reason, the case is believed to

merit a full review upon writ of certiorari.

Respectfully submitted,

Homer A. Walkup

Counsel of Record

Homer A. Walkup

Attorney at Law

2501 Ridge Road Drive

Alexandria, VA 22302

Ma‘ 29, 1985

“td 4 (703) 836-8281

Counsel for Petitioner

APPENDIX

INDEX TO APPENDIX

Copy of Judgment Order.

Opinion of Court of Appeals for the

Federal Circuit in Weide v.

United States, Appeal No.

84-1061. ~eik or Sela COP

Issues presented by Appellant on

Appeal from United States Claims

Court, No. 354-82C. Se

Opinion of Tidwell, J., United States

Claims Court, in Weide v.

United States, 4 Cl. Ct. 432

(1984). eee Se

Petition of Plaintiff to United States

Court of Claims in Weide v.

United States, No. 354-82C.

Text of Statutory Provisions Cited.

Text of Provisions of Regulations

Cited.

Page

lla

l6a

28a

80a

85a

Mar 23 1985 ia

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

No. 84-1061

354-82C

GEORGE JOSEPH WEIDE, JR.

Plaintiff-Appellant

THE UNITED STATES

Defendant -Appellee

JUDGMENT

ON APPEAL from the U. S. CLAIMS COURT

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED: AFFIRMED

DATED January 18, 1985

ENTERED BY ORDER OF THE COURT

George E. Hutchinson, Clerk

/s/ George E. Hutchinson

Clerk

Petition for Rehearing

Denied February 28, 1985

Suggestion for Rehearing

In Banc, Declined

March 11, 1985.

ISSUED AS A MANDATE: March 21, 1985

COSTS: Against Appellant

Prameam@. ... "337,60

co ee

APPENDIX

Note: This opinion will not be published

in a printed volume because it does not add

significantly to the body of law and is not

of widespread legal interest. It is a public

record. It is not citable as precedent. The

decision will appear in tables published

periodically

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 84-1061

George Joseph Weide, Jr.,

Appellant,

Vv.

The United States,

Appellee.

Appeal from United States Claims Court

decision in Weide v. United States, 4 Cl. Ct.

432 (1984), wherein the Claims Court granted

the Government's motion for summary judgment.

Argued: October 4, 1984

Decided: January 18, 1985

Petition for Rehearing Denied: February 28,

1985

Suggestion for Rehearing In Banc Declined:

March 11, 1985

Before DAVIS, KASHIWA, and NEWMAN, Circuit Judges

KASHIWA, Circuit Judge.

DECISION

George Joseph Weide, Jr. (Weide) appeals

from the decision in Weide v. United States,

4 Cl. Ct. 432 (1984), wherein the Claims Court

granted the Government's motion for summary judg-

ment. On the basis of the opinion of Judge Tid-

well of the Glaims Court, we affirm.

OPINION

We have reviewed the documents and briefs

submitted on this appeal, and frankly we are per-

plexed as to several of the issues Weide believes

are before this Court.

Judge Tidwell stated, 4 Cl. Ct. at 436, that

the court did not reach the issue of summary judg-

ment under the doctrine of laches, and therefore

this issue, Weide's issues I, II, and III, is not

before us. Furthermore, as we understand Weide's

Issue I, he is apparently asking wus to overrule

several prior decisions of the Court of Claims,

a proposition we are in no position to entertain.

{Petitioner's note: Appendix, lila Issues presen-

ted by Appellant's appeal.)

Similarly, Weide's Issue V is not properly

before this court for review inasmuch as the

Claims Court viewed the Government's motion to

dismiss for failure to state a claim upon which

relief can be granted as merged into its motion

for summary judgment since the Government had

submitted a certified administrative- record and

both parties had moved for summary judgment and

filed supporting briefs therefor.

Likewise, the Government contends that

Weide's Issues VIII and IX, that the Secretary

of the Army or some political appointee must

have personal cognizance of, and ensure the

preparation of a properly reviewable record for,

any issues raised by an applicant pursuant to

10 U.S.C. §1552, are not before this court inas-

much as they were not raised in the Claims Court.

It does not appear to us that these issues, as

framed on appeal, were presented for consider-

ation by the Claims Court, and this court has

held that it will not address on review impor-

tant issues withheld from a lower tribunal. Cf.

Lizut v. Department of the Army, 717 F.2d 1391,

1395-96 (Fed. Cir. 1983). Even assuming, argu-

endo that paragraph 23 of Weide's Complaint, as

filed in the Claims Court, put these issues be-

fore the court, a fair construction of 10 U.S.C.

$1552(a) is that the Army Board for Correction of

Military Records (ABCMR), once its procedures have

been established by the Secretary of the Army,

acts pursuant to the authority delegated to the

Secretary by Congress as his representative to

correct any military record when it is necessary

to rectify an error or remove an injustice.

There are no indicia, and Weide has presented no

factual evidence on this point, that Congress in-

tended to require that the Secretary, or a polit-

ical appointee, become perscnally involved in the

record correction procedure.

Moreover, Chappell v. Wallace , 103 S. Ct.

2362 (1983), a case cited by Weide, supports this

construction. Chappell involved the issue of

whether enlisted military personnel may maintain

suits to recover damages from superior officers

for injuries sustained as a result of violations

of constitutional rights in the cause of military

service. Id. at 2363-64. The Court recognized

that Congress had exercised its plenary consti-

tutional authority over the military to enact

statutes regulating military life and to provide

an internal comprehensive system of justice,

taking into account the special patterns that

define the military structure. Id. at 2366. As

one example of remedial administrative proced-

ures available to military personnel, the Court

noted that "“[t]he Board of Correction of Naval

Records, composed of civilians appointed by the

Secretary of the Navy, provides another means

with which an aggrieved member of the military

‘may correct any military record. . . when

{the Secretary of the Navy acting through the

Board] considers it necessary to correct an

error or remove an injustice.' 10 U.S.C. §1552(a).”

Id. at 2367 (emphasis added). The Court further

described actions under this statute, always

referring to actions taken by the Board, rather

than by the Secretary. The logical inference

from this is that Congress did not implicitly

mandate or intend that the Secretaries of the

various military departments become personally

involved in record correction procedures. Rath-

er, the ABCMR has been delegated the authority

to act in the Secretary's stead.

A rebuttable presumption of regularity,

correctness, and good faith attaches to adminis-

trative actions, including the actions of mili-

tary administrators. Crispino v. United States,

3 Cl. Ct. 306 (1983). Judge Tidwell, having

reviewed all party submissions including the

administrative record and summary judgment briefs,

concluded that Weide had not alleged sufficient

facts to show that the Army had failed to main-

tain a correct record of his assignments and

performance ratings, or to show that the ABCMR

had incorrectly performed its administrative

functions. The burden is on Weide to overcome

this presumption at the trial level, and on

appeal he must show how or where the Claims

Court erred in reviewing the evidence and reach-

ing its decision. Weide has presented only con-

clusory statements as to “the possibility if not

probability” of the falsity of his records, with-

out alleging any specificity as to facts wrongly

considered, ignored, or not yet before the court,

Or erroneous conclusions of law, and we will not

say therefore that the Claims Court erred in hold-

ing that Weide failed to overcome the presumption

of correctness of the ABCMR's actions.

Weide alleges that the Claims Court erred by

misinterpreting the regulation applicable to the

preparation of Officer Effectiveness Reports (OERs),

Army Regulation 623-105, paragraph 2-5(1) (10 Sept.

1970), by quoting only the exception to the gen-

eral rule, without referring to the general rule.

The pertinent portion of paragraph 2-5(1) reads

as follows (emphasis on the part quoted by Judge

Tidwell):

A report will be prepared by the

immediate superior in the rated

officer's chain of command or staff

who is in the best position to have

personal or official knowledge of

the duty performance of the rated

officer. In some cases the immediate

superior may not be an officer of the

unit to which the rated officer is

assigned but he may be the supervisor

of the rated officer's principal duty.

As we see it, the part of paragraph 2-5(1)

quoted by Judge Tidwell is the only portion of

the regularion which may be favorable to Weide's

position, and the general rule, far from support-

ing his position, is actually damaging to it.

The general rule requires that an OER be prepared

by an immediate superior in the rated officer's

chain of command who is in the best position to

have personal or official knowledge of the duty

performance of the rated officer. Weide was

assigned during the period in question to the

Tenth Infantry, with a principal duty as Acting

Assistant, S-1. Therefore, Captain Voris was his

immediate superior in his chain of command, and

was required by the general rule to prepare Weide's

OER. While still assigned to the Tenth Infantry,

with principal duty as Acting Assistant S-l1,

Weide was given the major additional duty as

VOLAR Officer, under the supervision of Major Park.

To prevail on this issue, the burden of proof was

on Weide to show that his principal duty was

VOLAR Officer, thereby allowing Major Park to

prepare his OER as the “supervisor for the rated

officer's pri-cipal duty.” The ABCMR concluded

that the 1971 OER prepared by Captain Voris was

properly submitted pursuant to Army Regulation

623-105. The Claims Court upheld the ABCMR

decision, noting that Weide had failed to show

that ABCMR's actions were illegal under Sanders

v. United States, 594 F. 2d 804, 219 Ct. Cl. 285

(1979), had failed to establish an adequate nexus

between the 1971 OER and his subsequent discharge,

and that he had not alleged sufficient facts

showing error which substantially affected the

Army's decision. Even though an inapposite

section of paragraph 2-5(1) may have been quoted,.

if this be error, it ic harmiess, and we likewise

perceive no error in Judge Tidwell's rationale

for upholding the decision of the ABCMR. More-

over, we note that Weide's reliance on Evensen

v. United States, 654 F.2d 683, 228 Ct. Cl. 207

(1981), is misplaced. In Evensen, the Court of

Claims noted that an OER prepared by the wrong

rater, which the correction board had previously

vound to be prepared by an improper rater, is

not a trivial, insubstantial, or technical error.

The conclusion that an improperly prepared OER

is harmful error does not go to Weide's burden

10a

to establish that the 1971 OER_ was prepared by

an improper rater in the first instance.

Finally, Weide alleges error in the fact

that Judge Tidwell stated at various points in

the opinion that Weide was not selected for

promotion. While we recognize that it would

have been technically more accurate to state

that Weide was not selected for the permanent

rank of Captain, we fail to see how there was

any harmful error in this. The net result is

the same whether we speak of not being promoted

to a grade or not being selected for a permanent

grade--Weide would be discharged.

[End of Court of Appeals Opinion]

lla

ISSUES PRESENTED BY APPELLANT

ON APPEAL FROM UNITED STATES CLAIMS COURT

TO COURT OF APPEALS FOR THE FEDERAL CIRCUIT

(Mentioned by Number

In Court of Appeals Opinion

Appendix, Pages Za and 3a)

I. RULES CONCERNING LACHES IN MILITARY

PAY CASES LAID DOWN IN CASON v. UNITED

STATES, 461 F. 2d 782 (1971) AND BRUNDAGE

v. UNITED STATES, 504 F. 2d 1382 (1974),

AND EXTENDED IN ADKINS v. UNITED STATES,

228 Ct. Cl. 909 (No. 420-80C, DECIDED

SEPTEMBER 29, 1981, PER CURIAM), ARE

UNSOUND ON BASIC PRINCIPLES OF EQUITY

JURISPRUDENCE.

+e THE CIVIL SERVICE REFORM ACT OF 1978

(PL 95-454 APPROVED OCTOBER 13, 1978),

OBVIATED CONTINUATION OF THE ABERRATION

OF UNITED STATES EX REL. ARANT v. LANE,

249 U. S. 367 (1919), FOLLOWED IN

NICHOLAS v. UNITED STATES, 257 U. S. 71,

AND NORRIS v. UNITED STATES, 257 U. S. 77

(BOTH 1921).

IIt. IT IS PROCEDURALLY UNSOUND TO PERMIT

LACHES TO BE ASSERTED AS A BASIS FOR

MOVING TO DISMISS A PETITION AS FAILING

TO STATE A CLAIM UPON WHICH RELIEF CAN

BE GRANTED.

Iv. THERE IS NO PRESUMPTION OF CORRECTNESS

AND REGULARITY OF OFFICIAL ACTS BY

EE en nen A a ee

VI.

Vil.

12a

GOVERNMENTAL AGENTS AND RECORDS OF

THE PERFORMANCE OF SUCH ACTS, IN THE

PRESENCE OF A PLAUSIBLE CHALLENGE TO

THE FACTUAL ACCURACY OF SUCH RECORD MADE

BY ONE WHO HAD AN OPPORTUNITY TO OB-

SERVE AND EXPERIENCE THE MATTER RECORDED.

IN CONSIDERING A MOTION TO DISMISS A

PETITION AS FAILING TO STATE A CLAIM

UPON WHICH RELIEF CAN BE GRANTED, IT IS

REQUIRED THAT EVERY FACT ASSERTED IN THE

PETITION BE TAKEN AS ESTABLISHED, AND

EVEN THEN THE PETITION MAY NOT BE DIS-

MISSED UNLESS IT APPEARS THAT THE PLAIN-

TIFF COULD PROVE NO FACTS WHICH WOULD

ENTITLE HIM TO RELIEF.

IN CONSIDRING A MOTION BY THE DEFENDANT

FOR SUMMARY JUDGMENT, EVERY FACT ASSERT-

ED IN THE PETITION MUST BE TAKEN AS ES-

TABLISHED, EXCEPT ONLY TO SUCH EXTENT AS

MATTER ADDUCED BY THE DEFENDANT HAS

AFFIRMATIVELY DEMONSTRATED THE CONTRARY.

IT IS OBLIGATORY UPON A SECRETARY OF A

MILITARY DEPARTMENT TO ASSURE THAT THERE

IS MAINTAINED A SYSTEM OF RECORDS WHICH

WILL CURRENTLY PRESENT ON A FAIR, EQUI-

TABLE AND IMPARTIAL BASIS, THE ASSIGN-

MENTS OF EACH OFFICER OF THE ARMED FORCES

OF THE UNITED STATES SERVING UNDER THAT

DEPARTMENT, AND THE QUALITATIVE PERFORMANCE

OF SUCH OFFICER IN EACH ASSIGNMENT.

VIII.

Ix.

l3a

IT IS OBLIGATORY UPON A SECRETARY OF

A MILITARY DEPARTMENT TO HAVE MADE

KNOWN TO HIM OR HER OR TO A POLITICALLY

APPOINTED UNDER SECRETARY OR ASSISTANT

SECRETARY, THE ISSUES RAISED BY AN AP-

PLICATION, MADE PURSUANT TO § 1552 OF

TITLE 10, U. S. CODE, TO THE SECRETARY

FOR CORRECTION OF THE MILITARY OR NAVAL

RECORD RELATED TO SERVICE UNDER THAT

DEPARTMENT BY ONE WHO AT THE TIME WAS A

DE JURE MEMBER OF THE U. S. ARMED FORCES.

THE DECISION OF THE SUPREME COURT OF

THE UNITED STATES ON JUNE 13, 1983, IN

THE CASE OF CHAPPELL et al. v. WALLACE

ee eee Se, | ee

586, 592-3, 51 LW 4733, 4735, INDICATES

THAT § 1552 OF TITLE 10, U. S. CODE, RE-

QUIRES COGNIZANCE BY A POLITICALLY AP-

POINTED SECRETARY OF A MILITARY DEPAR-

MENT OF EACH APPLICATION MADE TO THAT

DEPARTMENT, PURSUANT TO THAT STATUTE, TO

ASSURE THAT A RECORD HAS BEEN MADE OF THE

ISSUES PRESENTED BY SUCH APPLICATION AND

THE DECISION OF EACH SUCH ISSUE WHICH IS

ADEQUATE TO PERMIT LATER REVIEW THEREOF

BY THE UNITED STATES CLAIMS COURT OR A

UNITED STATES DISTRICT COURT IN ACCORD-

ANCE WITH THE CRITERIA OF SANDERS v. UNI-

TED STATES, 594 F. 2d 804, 812, AND BY

A UNITED STATES COURT OF APPEALS UPON

XI.

14a |

APPEAL OF THE DECISION OF THE CLAIMS

COURT OR DISTRICT COURT UPON SUCH |

REVIEW.

THE DECISION OF THE UNITED STATES CLAIMS |

COURT IN THE INSTANT CASE IS PREMISED

UPON A MISINTERPRETATION OF THE OBVIOUS

PLAIN MEANING OF A PROVISION OF ARMY

REGULATIONS APPLICABLE AT THE TIME,

CAUSED BY A QUOTATION BY A MILITARY PER-

SONNEL ADMINISTRATOR PRIMARILY RESPON- )

SIBLE FOR THE ADMINISTRATION OF SUCH |

REGULATION, OUT OF CONTEXT, OF A SEN- |

TENCE STATING AN EXCEPTION TO THE GENERAL

RULE, WITHOUT STATING THE GENERAL RULE

SET FORTH IN THE IMMEDIATELY PRECEDING

SENTENCE OF THE REGULATION. THE CLAIMS

COURT WAS MISLED BY THAT QUOTATION OUT OF

CONTEET . . « 14 C2. Ce. 832, 433, ZC

column, middle of page]. . .NOTWITHSTAND-

ING ITSHAVING BEEN PLAINLY POINTED OUT

AT PAGES 21-22 OF THE PLAINTIFF'S PETITION

- . -{Appendix reference]. . .

THE OPINION OF THE CLAIMS COURT PROCEEDS

UPON THE FALSE ASSUMPTION THAT THE PLAIN-

TIFF (HERE, THE APPELLANT) WAS “TWICE

NON SELECTED FOR PROMOTION.” .. .

(4 Cl. Ct. 432, initial sentence of

opinion]. . . THE APPELLANT HAD AT ALL

TIMES SINCE JUNE, 1974, HELD THE GRADE

15a

AND RECEIVED THE PAY AND ALLOWANCES

APPLICABLE TO THE GRADE OF CAPTAIN,

PAY GRADE 0-3, AS PROVIDED BY § 204

OF TITLE 37, U. S. CODE. THE SELEC-

TION FOR APPOINTMENT AS A CAPTAIN,

REGULAR ARMY, WHICH WOULD HAVE CARRIED

WITH IT NO CHANGE IN RANK OR PAY ENTITLE-

MENT, WAS, IN LEGAL EFFECT, AN ELIMIN-

ATIVE OR REVERSE SELECTIVE PROCEEDING TO |

DETERMINE WHETHER THE PLAINTIFF SHOULD

REMAIN ON ACTIVE DUTY IN THE GRADE CUR-

RENTLY HELD -- NOT WHETHER HE SHOULD BE

ADVANCED TO A HIGHER GRADE. UNITED

STATES v. TESTAN, 424 U. S. 392 (1976),

POINTS OUT AT 402 THAT THE ELIMINATIVE

ASPECT OF A SELECTIVE PROCEEDING [IS]

NOT IMMUNIZED FROM JUDICIAL REVIEW NOR

FROM JUDICIALLY DIRECTED RECORD CORREC-

TION WHEN SHOWN BY SUCH REVIEW TO HAVE

BEEN CONDUCTED OTHERWISE THAN IN ACCORD-

ANCE WITH GOVERNING LAW, AS IS NOTED IN

SANDERS v. UNITED STATES, 594 F. 2d 804,

810 (1979).

XII. THE ERRORS OF THE CLAIMS COURT POINTED

OUT IN X. AND XI., ABOVE, WOULD IN ALL

PROBABILITY HAVE BEEN OBVIATED HAD OPPOR-

TUNITY BEEN ACCORDED FOR ORAL ARGUMENTS

UPON DEFENDANT'S MOTION TO DISMISS THE

PETITION OR, IN THE ALTERNATIVE, FOR

SUMMARY JUDGMENT, AND THE PLAINTIFF'S

CROSS-MOTION FOR SUMMARY JUDGMENT.

16a

4 United States Claims Court Reporter 432

George Joseph WEIDE, Jr., Plaintiff

Vv.

The UNITED STATES, Defendant

No. 354-82C.

United States Claims Court

Feb. 17, 1984.

Former serviceman brought action for

review of decision of Army Board for the Correc~-

tion of Military Records not to correct certain

records. The Claims Court, Tidwell, J., held

that: (1) Court had jurisdiction to review the

determination, but (2) former serviceman did not

show failure to correct was cause of failure of

former serviceman to obtain promotion some five

to six years after the date of the records in

question.

Dismissed.

Homer A. Walkup, Alexandria, Va., for

plaintiff.

Alexander Younger, Washington, D. C., with

whom was Acting Asst. Atty. Gen. Richard Willard,

Washington, D. C., for defendant.

OPINION ON DEFENDANT'S MOTION TO DISMISS

AND ON CROSS-MOTIONS FOR SUMMARY JUDGMENT.

TIDWELL, Judge:

This is a military pay case in which

plaintiff, George Joseph Weide, was honorably

discharged from the United States Army after being

twice non selected for promotion. Plaintiff al-

17a

leges that he was not promoted because of an Of-

ficer Efficiency Report (OER) which he asserts

was completed by an improper rating officer in

violation of Army regulations. Plaintiff seeks

an order directing the removal of the offending

CER, setting aside his discharge, and restoring

him to active duty. Plaintiff also seeks an

order requiring certain corrections in his mili-

tary record and either promoting him to the grade

of Captain in the Army or establishing a special

selection board to consider him for promotion.

Defendant has moved to dismiss this

action on the ground that plaintiff has failed

to state a claim upon which relief can be granted

or in the alternative, for summary judgment on the

grounds that (1) there is no genuine issue of

material fact and defendant is entitled to judg-

ment as a matter of law and (2) plaintiff's ac-

tion is barred by the equitable doctrine of

laches. Plaintiff has filed a cross-motion for

summary judgment.

FACTS

In September of 1970, Plaintiff, then

a second lieutenant in the United States Regular

Army, was assigned as Communication Officer of

the Second Battalion, Tenth Infantry Division

at Fort Carson, Colorado (Tenth Infantry).

Shortly after his assignment to the Tenth In-

fantry, plaintiff was transferred to the

Marksmanship Training Unit (MTU) of the Fourth

18a

Infantry Division. Plaintiff performed special

duty with the MTU from November 23, 1970 until

March 6, 1971. Plaintiff was then reassigned to

the Tenth Infantry as a result of a reduction in

MTU personnel.

Upon his return, plaintiff was assigned

as Assistant S-1, reporting to Captain Stephen

M. Voris. On April 10, 1971 plaintiff was given

the additional duty of serving as a VOLAR (Vol-

unteer Army) officer, responsible for promoting

the all volunteer army. He was moved to a sep-

arate building and performed his VOLAR duties

under the supervision of Major Peter R. Park.

Major Park became the Executive Officer of the

Tenth Infantry on June 25, 1971 and was replaced

by Captain Sowa. Plaintiff served under Captain

Sowa until July 11, 1971. On July 11, 1971,

after having been promoted to First Lieutenant,

plaintiff was reassigned to the position of

Communication Officer of the First Battalion

of the 29th Field Artillery Division at Fort

Carson. Following this change of duty, an

Officer Efficiency Report (LER) was completed

evaluating plaintiff's performance. The rating

officer was Captain Stephen M. Voris, the indor-

ser was Major Peter R. Park, and the reviewer was

Lieutenant Colonel George J. Pierce, Commander

of Tenth Infantry. The OER covered the period

of December 1, 1970 to July 11, 1971. The rater,

Captain Voris, commented that the plaintiff "“per-

19a

formed his duties in an extraordinary manner,"

and ranked plaintiff in the 77th percentile of

officers of plaintiff's grade and branch known

by Captain Voris. He also recommended that

plaintiff be promoted along with his contempor-

aries and receive advanced course signal corps

education. Major Park, who signed plaintiff's

OER as indorser, stated that he was unable to

evaluate plaintiff's performance because plain-

tiff had not been under his supervision for a

60-day period. The OER was submitted in August

of 1971.

In early 1972, plaintiff reviewed his

military records and discovered a number of

errors. There was no record of his transfer

to the MTU or of his reassignment back to the

Tenth Infantry. The duration of his stay in the

Tenth Infantry in a non-signal corps capacity

was listed incorrectly and his OER for the period

of December 1, 1970 to July 11, 1971 had lower

markings than those on the immediately preceding

OER. Plaintiff first discovered these alleged

errors just prior to receiving orders for duty

Overseas. However, it was not until after his

return from overseas duty on September 18, 1973

that plaintiff appealed the errors in his mili-

tary record. The Military Personnel Center

granted plaintiff relief but limited it to the

insertion of a memorandum in plaintiff's record

indicating that plaintiff had served in the MTU

20a

from December 1, 1970 to March 7, 1971, that the

duration of the December 1, 1970 to July 11, 1971

OER should be reduced to cover only the period

from March 7, 1971 to July 11, 1971, and that

plaintiff's military record should be adjusted

so that the dates more accurately reflected the

number of days plaintiff spent in the Tenth In-

fantry in his non-signal corps capacity. The

gap in time left by this adjustment was filled

by the inclusion of the statement “not rated

period.” Plaintiff was informed that his appeal

would be reconsidered if he submitted additional

evidence, such as a copy of his assignment or

temporary duty orders, or an extract of a unit

morning report, or a4 certified copy of the rat-~-

ing scheme in effect at the time together with

a statement from Captain Voris.

Plaintiff alleges that he was not satis-

fied with the action taken by the Military Per-

sonnel Center but aside from consulting a career

counselor in early 1974, he took no further

action until December of 1977, when he applied

for relief to the Army Board for Correction of

Military Records (ABCMR).

Meanwhile, in June of 1974, plainciff

was temporarily promoted to the grade of Captain

in the Army of the United States (aus). The

1. 10 U.S.C. 3442(c).

ce ee eT i ce

21a

The following year, in 1975, plaintiff received

a letter from the Department of Army Headquar-

ters informing plaintiff that he was among 2700

Army officers of which 2200 were projected to be

separated from the Army. Plaintiff responded to

the notification by letter reminding the Army

among other things, that the unrated time in

his records was spent in the MTU. Later plain-

tiff was advised that he had been selected for

retention and that no reference to the projec-

ted reduction would be included in his military

records. Apparently, in the course of this cor-

respondence the memorandum that explained the

reduction in time of the 1971 OER was removed.

While plaintiff was not separated from the Army

during the following two years, 1976 and 1977,

neither was plaintiff selected for promotion.

In December 1977 and again in January

1978, plaintiff applied to the ABCMR requesting

that his non-selections for promotion be set

aside and that he be retained by the Army pending

correction of his military record. He also

requested that he be further considered for

promotion to the regular grade of Captain. These

applications were denied. Plaintiff was honor-

ably discharged from the regular Army on Febru-

ary 1, 1978 and appointed a Captain, U. S. Army

Reserve, Signal Corps Branch, but was not ordered

to active duty.

Beginning on June 20, 1978 plaintiff

made repeated applications with the ABCMR for

22a

correction of his military records. Plaintiff

sought the same basic relief in all of the ap- |

plications: removal of the 1971 OER_prepared by |

Captain Voris and substitution with a more fav-

orable OER prepared in 19/78 by Major Park’,

together with corrections in his record to re-

move evidence of his 1978 release from active

duty. |

Included with the applications were

written statemerts by Major Sowa, Major Park,

LTC Pierce, Captain Bell and Captain Voris. The

statements, while somewhat contradictory, gener-~

EEO

ally state that plaintiff was under Captain

Voris’ immediate supervision for less than 60

days.” The ABCMR repeatedly denied plaintiff's

application without a hearing, noting that the

plaintiff had ‘ failed to show probable material

error or injustice and that plaintiff had failed

to provide an official rating scheme or orders

showing that Captain Voris was not plaintiff's

2- The delayed 1978 OER covers the period of

time from March 7, 1971 to July 12, 1971

and rates plaintiff in the 98th percentile.

3. The applicable Army regulations at that time

required the rating officer to have super-

vised the officer to be rated for a minimum

of 60 days. Army Regulations 623-105

September 10, 1970).

23a

proper rater.‘ The ABCMR's third and last

denial was issued on September 2, 1981.

Plaintiff filed suit in this court on

July 19, 1982.” On July 27, 1983, defendant

moved for dismissal, or in the alternative, for

summary judgment. Jurisdiction is proper under

the Tucker Act, 28 U.S.C. § 1491.

DISCUSSION

We initially turn to Defendant's Motion

to Dismiss for failure to state a claim upon

which relief can be granted. RUSCC 12(b) pro-

vides that a motion to dismiss for failure to

state a claim upon which relief can be granted

is to be treated haan motion for summary judgment

when matters outside the pleadings are presented

and accepted by the court. Because defendant has

4. Plaintiff's application was referred several

times to the Evaluation Report Branch of the

United States Army Military Personnel Center

for an expert opinion as to the correctness

of the OER. The branch concluded that there

was nothing in the application and statements

submitted which suggested a change in the OER.

5. Plaintiff originally filed suit in the United

States Court of Claims on November 2, 1981,

however, the petition was dismissed without

prejudice for verbosity.

24a

submitted a certified administrative recora®

and both parties have moved for summary judg-

ment and have filed briefs in support thereof,

we will view Defendant's Motion to Dismiss as

having merged into its Motion for Summary

Judgment. See Moffett v. Commerce Trust Co.,

187 F. 2d 242, 249 (8th Cir.) cert. denied, 342

0. 8S. 818, 72 BS. Ct. 32, 96 Le. BG. 618 (1951).

Summary judgment is appropriate only

when there is no material issue of fact and the

moving party is entitled to judgment as a matter

of law. South Louisiana Grain Services, Inc. v.

United States, 1 Cl. Ct. 281, 289 (1982). After

careful review of all the party submissions,

including the administrative record, this court

concludes that there is no genuine issue of

material fact and this action is ripe for summary

judgment.

In this case, plaintiff is seeking re-

view of a decision of the ABCMR. Section 1552 (a)

of 10 U.S.C. empowers the Secretary of the Army,

acting through boards of civilians, to correct

the military records of that branch “when he

considers it necessary to correct an error or

remove an injustice. It is well settled that

this court has jurisidctivon to review such cor-

6. The certified administrative record con-

sists of plaintiff's official military

personnel file and the retained file of

the Army Board of Correction of Military

Records pertaining to plaintiff.

eee

25a

rections, or as alleged here, failure to correct;

however, the scope of review is narrow. Cris-

pino v. United States, 3 Cl. Ct. 306, 312 (1983);

Sanders v. United States, 219 Ct. Cl. 285, 300,

594 F. 2d 804, 812; Skinner v. United States, 219

Ct. Cl. 322, 333, 594 F. 2d 824, 831 (1979). As

this court has held on numerous occasions:

Once a plaintiff has sought relief

from the Correction Board, such plain-

tiff is bound by the board's determination

unless he can meet the difficult standard

of proof that the Correction Board's

decision was illegal because it was

arbitrary or capricious or in bad

faith, or unsupported by substantial

evidence, or contrary to law, regulation

Or mandatory pbulished procedure of a

substantive nature by which plaintiff

has been seriously prejudiced, and money

is due.

Sanders v. United States, 219 Ct. Cl. 285, 298,

594 F. 2d 804, 811 (1979). See Heisig v. United

States, 719 F. 2d 1153 (Fed. Cir. 1983). Ad-

ditionally, a decision of the Correction Board

which is in error or unjust is reversible only

if it is substantial and prejudicial to plaintiff.

Sanders v. United States, 219 Ct. Cl. at 329,

333, 594 F. 2d at 828, 830-831.

Plaintiff argues that because he was not

under the immediate supervision of Captain Voris

for the required 60 days while assigned as VOLAR

officer, the OER prepared by Captain Voris in

1971 should be invalidated in order to accept

the delayed OER prepared by Major Park in 1978.

26a

The ABCMR, after considering the statements by

Captain Voris, Major Sowa, Major Park,

LTC Pierce and Captain Bell as well as the

previous applications, concluded that the

1971 (Captain Voris) OER was submitted in

accordance with the provisions of Army Regulation

623-105 paragraph 2-5(1) (September 10, 1970)

which read in part: "In some cases the immed-

iate superior may not be an officer of the unit

to which the rated officer is assigned but he

may be the supervisor for the rated officer's

principal duty." The ABCMR further concluded

that the statements submitted by Captain Voris,

Major Sowa, Major Park, LTC Pierce and Captain

Bell were contradictory and that without a rat-

ing scheme or similar supporting documentation.

there was no basis for voiding the OER prepared

by Captain Voris in 1971. Even though Captain

Voris may not have been plaintiff's immediate

supervisor for VOLAR duty, it was not clear

to the ABCMR that Captain Voris was an improper

supervisor or rater for plaintiff's principal

duty.

We uphold the ABCMR's decision. Plaintiff

has not only failed to carry his burden of showing

that the ABCMR's decision was illegal under

Sanders, plaintiff has not alleged sufficient

facts to establish an adequate nexus between

the 1971 OER and his subsequent discharge. As-

suming arguendo that the 1971 OER or the non-

27a

rated period from March 7 to July 11, 1971 was

in error, plaintiff has not alleged sufficient

facts showing that the error(s) substantially

affected the decision of the Regular Army Selec-

tion Board to not promote plaintiff. See Hary

v. United States, 223 Ct. Cl.10, 17, 618 F. 2d

704 (1980). Rather, the record shows that

plaintiff received nine OER's subsequent to the

1971 OER in a variety of positions over a span

of six years during which time plaintiff was

twice promoted from Second Lievtenant to Captain

AUS. While the 1971 OER was not plaintiff's most

outstanding OER, nor was the unrated period and

time spent in the MTU necessarily helpful in

plaintiff's military advancement, those facts

alone do not appear to have substantially affec-

ted the Army's decision not to promote plaintiff.

CONCLUSION

In light of the foregoing reasons, the

court concludes that plaintiff is not entitled to

relief and that defendant is entitled to summary

judgment as a matter of law. Having decided that

defendant is entitled to judgment as a matter

of law, we do not need to reach Defendant's Motion

for Summary Judgment on the doctrine of laches.

Therefore, Defendant's Motion for Summary

Judgment is granted and Plaintiff's Cross-Motion

for Summary Judgment is denied. The complaint

is to be dismissed.

IT IS SO ORDERED.

28a

IN THE UNITED STATES COURT OF CLAIMS

GEORGE JOSEPH WEIDE, JR.,

Plaintiff,

No.-698-82€E-

THE UNITED STATES, 354-82C

)

Vv. )

)

Defendant. )

PETITION OF PLAINTIFF

1. A previous petition of the plaintiff

was dismissed upon motion of the defendant by an

order of the Court entered April 9, 1982, with-

out prejudice to plaintiff's filing a new peti-

tion in compliance with Rule 35, setting out

clearly and concisely plaintiff's claim, the

basis for jurisdiction in the Court, and a de-

mand for relief in accordance with plaintiff's

claim and jurisdictional basis. This petition is

filed in compliance with that order. [*]

{*) [Note 5, Opinion Judge Tidwell, 4 Cl. Ct.

432, 434, Appendix, Page 23a, supra. The

original petition, Docket No. 698-81C, was

filed December 2, 1981, rather than November

2, as stated by Judge Tidwell. During oral

argument on May 26, 1983, on a defense motion

to dismiss No. 354-82C (denied), Chief Judge

Kozinski held up the petition in No. 698-81C,

and said, "I'll never know why they dismissed

this!"] :

ae Z

29a

2. Plaintiff invokes the jurisdiction of

the Court in that he has been denied pay and

allowances attributable to his grade of Captain,

U. S. Army, Signal Corps Branch, 215-54-9428,

Since February 1, 1978, contrary to the Consti-

tution and statutes of the United States, and

claims entitlement to such Pay and allowances

under 37 U. S. Code section 204. Plaintiff

asks that in addition to awarding him the money

due him (subject to computation), the Court

direct that plaintiff be restored to his office

and that his military record be appropriately

corrected, in accordance with the authority giv-

en the Court by the Tucker Act, as amended,

Title 28, U. S. Code, Section 1491.

A. Statement of Facts

3. Plaintiff is 33 vears of age, a citizen

of the United States, born October 29, 1948, in

the District of Columbia. He was tendered an

appointment by the President of the United

States as a Second Lieutenant, U. Ss. Army, and

on June 3, 1970, accepted such appointment and

30a

executed oath of office. He was at that time

twenty-one years of age, and met all other qual-

ifications prescribed by Section 3285 of Title

10, U. S. Code, which was in effect at the time.

Section 3063 of Title 10, U. S. Code, provides

that the Secretary of the Army may assign mem-

bers of the Army to its basic branches. The

basic branches are (1) Infantry; (2) Armor; (3)

Artillery; (4) Corps of Engineers; (5) Signal

Corps; (6) Adjutant General's Corps; (7) Quar-

termaster Corps; (8) Finance Corps: (9) Ordnance

Corps; (10) Chemical Corps; (11) Transportation

Corps; (12) Military Police Corps; and (13) such

other basic branches as the Secretary considers

necessary. Under the authority of Section 3063,

the Secretary of the Army assigned plaintiff to

the fifth of the basic branches specified in that

statute, i. e., the Signal Corps. Subsection

3283(a) of Title 10, U. S. Code, provides that

appointments in commissioned grades in the Regu-

lar Army shall be made without specification of

branch, and subsection (b) provides that officers

sO appointed may be transferred and reassigned

3la

by the Secretary of the Army to other branches

“according to their professional qualifications

and the needs of the Army." Both provisions are

made subject to exceptions which are not appli-

cable to the particular situation of the plain-

tiff, but the existence cf which necessarily im-

ply a legislative intent that the transfer and

reassignment function could be exercised only by

a responsible central authority under the super-

vision of the Secretary of the Army to assure (a)

that any such action in a particular case satis-

fies the statutory conditions of professional

qualifications and needs of the service, and (b)

that a particular proposed transfer or reassign-

ment does not fall within one of the statutory

exceptions.

4. Plaintiff completed all prexcribed

training, and was assigned as a Second Lieutenant,

Signal Corps Branch, to the Second Battalion

(Mechanized), Tenth Infantry Division (hereinaf-

ter 2/10), one of several units under the Fourth

Infantry Division (Mechanized) at Fort Carson

Colorado, where he reported and performed duty,

32a

beginning in September, 1970. {*] Plaintiff

was assigned as Communications Officer of the

Battalion -- a duty appropriate to his grade

and assigned Branch -- and at that point, for

practical purposes, there began the compilation

of his “military record”, i. e., substantive duty

assignments and evaluation of performance in those

assignments, recorded in periodically submitted

Officer Evaluation Reports (OERs), universally

recognized as being “the single most important

documents in an officer’s re-ords”", Sanders v.

United States, 219 Ct. Cl. 285, 310, 594 F. 2a

804, 818.

[*] {[References, both by Judge Tidwell, 17a,

supra, and Judge Kashiwa, 8a, supra, to the

Tenth Infantry, and Weide'’s assignment to

the Tenth Infantry, are inaccurate and mis-~-

leading. Tenth Infantry (Division) reflects

a historical association only of the

Second Battalion, which is the command

unit here in question. That Battalion, dur-

ing all here relevant times, was one of

sixty-some command units under the Fourth

Infantry Division (Mechanized) at Fort Car-~

son, Colorado. The Marksmanship Training

Unit (MTU) (17a-18a) was another unit under

the Fourth Infantry Division, as was also

the First Battalion of the 29th Field Artil-

lery Division, to which Weide was reassigned

on July 11-12, 1971.]

33a

5. The provision of Army Regulations in ef-

fect at the time, which governed assignments, de-

tails, and transfers of all Army personnel, was

Army Regulations (AR) No. 614-6, of 8 January

1963, providing, in pertinent excerpt:

1. Purpose. These regulations establish

the conditions under which military per-

sonnel will be reassigned between com-

mands or units of the Army, establish the

procedures to be followed in processing

requests for reassignment. . .of Army

personnel both as individuals and as

members of units. (Underscoring for em-

phasis supplied)

3. Definitions. ..

Cc. »« « Subject to policies outlined

herein. . . commanders are authorized

to effect changes of assignment. .. of

military personnel between elements of

their commands. . .

* * *

6. . . officers may be assigned on

PCS [permanent change of station] within

conus ]Continental United States]...

However, reassignments under this authority

will not be directed without advance

approval (branch clearance) of Headquarters,

Department of the Army. . . Requests for

branch clearance will include the infor-

mation requested by paragraph 19a (1)

through (4)...

* *

19. . . Requests will contain the

following information:

* * *

(4) Full justification for the pro-

posed move and whether a replacement

will be required if the request is

34a

approved. The justification will include

information as to the availability for

reassignment of other similarly quali-

fied personnel for whom exceptions to

policy would not be necessary.

6. After plaintiff had served for a little

more than two months as Communications Officer

of the 2/10, he was reassigned by the Commanding

General of the Fourth Infantry Division to the

Marksmanship Training Unit (MTU) under that

Division. A replacement was required as Communi-

cations Officer of the 2/10, and another officer

of the Signal Corps Branch was ordered to that

position by the Commanding General. There was

no dissatisfaction with plaintiff's performance

indicated by any person in authority in the

2/10, and plaintiff was in fact given a very

high OER for the period he had served in the

2/10. That OER did not mention the circumstances

prompting the reassignment of the plaintiff, and

indicated the assignment of a new “rater”

(immediate superior) of the plaintiff as the

occasion for submitting an OER after so short

a period of service, without revealing that a

PCS (permanent change of station) was being

35a

effected between two units of the Fourth Infantry

Division at Fort Carson. Plaintiff dit not per-

form, and was not expected to perform, in the

Marksmanship Training Unit, any of the duties

usually assigned to an officer of the Signal

Corps Branch, but instead performed exclusively

duties associated with the Infantry Branch, i. e.,

rifle marksmanship competition, firing rifles and

servicing targets, scoring other marksmen.

7. Prior to his assignment, Plaintiff

questioned the Battalion Commander of the 2/10,

Lieutenant Colonel George J. Pierce, as to the

compatibility of the change of station with his

Signal Corps Branch career status, and was told

that it was the opinion of the Battalion Com-

mander that at so early a stage in plaintiff's

career, the reassignment should not adversely

affect the plaintiff. Plaintiff was not at the

time aware of the provisions of AR 614-6 quoted

above. Nothing was said to plaintiff by any

person as to any necessity for “advance approval

(branch clearance) of Headquarters, Department

of the Army”; nor as to any data being submitted

36a

to the Department of the Army concerning the

proposed move. No “justification” for the

proposed move in terms of interests of the

Signal Corps Branch, of the Army as a whole, or

of plaintiff individually as a would-be lifetime

career officer, was ever mentioned. The only

statement that plaintiff recollects hearing in

the nature of justification for the transfer is

one made by the Battalion Commander to the effect

that the 2/10 would receive extra “points” in

Fourth Infantry Division inter-unit competition

by reason of plaintiff's being selected (by

reason of rifle marksmanship prowess) for assign-

ment to the Marksmanship Training Unit, and by

being actually reassigned following such selec-

tion. Plaintiff's official record has at no

time contained any indication that the Signal

Corps Branch office in Headquarters, Department

of the Army, was in any way contemporaneously

advised that plaintiff was being considered for

reassignment, was being reassigned, or had been

reassigned to Infantry Branch duties in the

Marksmanship Training Unit. In fact, as is here-

37a

inbelow set forth, for some three years his rec-

ord was affirmatively falsified and did not re-

veal that he had been reassigned from the

Battalion at all, but implied that he had been

removed from a Signal Corps Branch position and

assigned duties in the Battalion in no way

appropriate to that Branch, with no indication

whatsoever as to the reason. Plaintiff believes,

and therefore alleges, that the Fourth Infantry

Division (Mechanized), a command authorized to

issue orders under AR 614-6 of 8 January 1963,

failed to comply with the requirements of that

regulation; did not obtain “branch clearance"

(viz., Signal Corps Branch approval) of his

reassignment to the Marksmanship Training Unit;

and that had such branch clearance been sought,

as required by the explicit terms of the govern-

ing regulation as well as by sound personnel

management principles, Signal Corps Branch ap-

proval would not have been given, at the very

least without counselling the plaintiff and

insisting upon his being transferred to another

basic branch, and his undergoing the further

38a

training required to qualify him for the branch

to which transferred.

8. Plaintiff served in the Marksmanship

Training Unit from December 1, 1970, through

March 6, 1971, a period of 97 days. Although

performing no duty appropriate to the Signal

Corps Branch while in that Unit, plaintiff did

not institute action looking toward a transfer

to another basic branch, and no suggestion was

ever made to him that he should do so. Plaintiff

was successful in the MTU in that he was assigned

to a Fort Carson rifle marksmanship team and was

Given orders to permit his traveling to parti-

cipate in a forthcoming match. Prior to his

beginning such travel, however, a 60% reduction

was ordered in MTU personnel, which required

that plaintiff be reassigned from that Unit.

Plaintiff sought reassignment to a Signal Corps

position in another unit of the Fourth Infantry

Division. He was told by a Division personnel

officer that there was then no Signal Corps pos-

ition open in any of the some sixty units of

the Division, but that he would be given a choice

et eget

NR mente oO tN a

39a

among such positions as might open in the future.

Pending such time as a Signal Corps position

might become available, plaintiff was reassigned

by the Commanding General of the Fourth Infantry

Division from the MTU to the 2/10, to which he

had been previously assigned as Communications

Officer and in which he was favorably regarded

by the principal Battalion officers.

9. Upon returning to the 2/10, plaintiff

was told that there was then no place in which

he could be utilized as a Signal Corps officer,

nor was there at the moment any position in the

S-3 (Operations) section of the Battalion (in

which he had served as Communications Officer

prior to his reassignment to the MTU) to which

plaintiff could be assigned. Plaintiff was

temporarily given a desk outside the office of

the Battalion S-1 (adjutant, personnel officer).

The S-1 was Captain Stephen M. Voris, who had

been assigned to the 2/10 in either December,

1970, or January, 1971, after returning from

Vietnam, and who hen ‘sates in the S-2 (Intelli-

gence) section until a few days prior to plain-

40a

tiff's reporting to the 2/10 upon reassignment,

i. e., March 7, 1971. In latter March or during

the first days of April, 1971, plaintiff was told

by the Battalion Commander that plaintiff was

being assigned as VOLAR (Volunteer Army) officer

of the Battalion, under the S-3, a Major Peter

R. Park, who had assumed the S-3 section a few

days before plaintiff had been reassigned the pre-

vious November from the position of Communications

Officer in the S-3 section of the Battalion.

Plaintiff moved from the desk he had occupied in

the Headquarters Building, outside the S-1 office,

to a building some distance away which contained

the S-3 offices, no later than April 10, 1971.

Plaintiff actively performed duties as the first

incumbent in the newly established position of

VOLAR Officer, being in charge of funds for the

making of incentive awards to personnel demonstra-

ting unusual progress in their training, working

with the S-4 (supply, logistics) to the end of

improving the habitability of enlisted quarters,

and attending periodic meetings attended by

VOLAR officers of various Fourth Infantry Divi-

4la

sion Units, at which accomplishments were repor-

ted and instructions received, from about 10

April until 11 July 1971. In early July, plain-

tiff was advised by the Fourth Infantry Division

personnel office that two Signal Corps positions

had become available, of which he would be given

first choice. Plaintiff chose the position of

Communication Officer of the First Battalion of

the 29th Field Artillery Division, and was reas-

signed from the 2/10 to the 1/29FA. As of June

25, 1971, Major Peter R. Park became Executive

Officer of the 2/10, relieving Major James H.

Martin, who left the area; then Captain Peter S.

Sowa, who had been Commanding Officer of the

Headquarters Company, relieved Major Park as

S-3. When plaintiff was reassigned from the

2/10 on July 11th, he was warmly congratulated

by Captain Sowa, Major Park, and Lieutenant

Colonel Pierce upon the performance he had

rendered as VOLAR Officer.

10. Plaintiff did not have an opportunity

to review his military record until early 1972,

when he was on leave at his parental home in the

, |

Washington, D. C. area. Upon then reviewing his

42a

record in the Military Personnel Center in Alex-

andria, Virginia, the following errors were

apparent:

a. There was no record indication of his reas-

signment as of November 30, 1970, from the

2/10 to the Marksmanship Training Unit.

b. There was no record indication of his reas-

Signment as of March 6, 1971, from the MTU

to the 2/1).

c. An OER was in his record, submitted by Cap-

tain Stephen M. Voris as Rater, indicating

that plaintiff had served in the 2/10 in the

position of "Acting Assistant S-1" from

December 1, 1970, until July 12, 1971.

d. Qualitative performance evaluations in the

Purported December-July OER were noticeably

inferior to those on the genuine September-

December OER, submbtted upon plaintiff's

performance as Communications Officer through

November 30, 1970.

e. In contrast to warmly enthusiastic narrative

comment by both the Rater and Indorser on the

September-December report, the spurious Decem-

ber-July OER contained substantive comment

of the purported Rater only, stating:

Lieutenant Weide performed his duties in an

extraordinary manner. He strived to do his

best and exhibited a strong desire to

43a

accomplish a given mission. He

was somewhat hindered in fully accom-

plishing his job due to a lack of ex-

perience and working out of his primary

MOS. He was reassigned to a Communications

Officer position for that reason.

(MOS = Military Occupational Specialty,

in the case of plaintiff, 25, Signal Corpa]

11. Inasmuch as it was apparent that Captain

Voris, in signing and submitting the purported

1 December 1970 - 12 July 1971 OER, had made

several false official statements, in violation

of 10 U.S.C. 907, plaintiff, as an officer subject

to the Uniform Code of Military Justice, Chapter

47°.0f Title 10, U. S. Code, was required by 10

U.S.C. 831, prior to interrogating or requesting

any statement from Captain Voris, (a) to inform

Captain Voris of the nature of the offense(s) of

which he was suspected, and to advise him (b)

that he did not have to make any statement con-

cerning the offense(w), and (c) that any state-

ment he did make might be used against him

in a trial by court-martial. Noncompliance by

plaintiff with 10 U.S.C. 831 could have subjected

Plaintiff to court-martial prosecution for violat-

ing 10 U.S.C. 898.

44a

12. At the time plaintiff discovered the

errors in his record, in early 1972, he was still

at Fort Carson with the 1/29 FA, but was aware

that he was to receive orders to duty overseas

in the very near future. He had maintained no

contact with officers of the 2/10 since July,

1971, and considered that his raising the matter

at Fort Carson, with included involvement of the

Commanding General of the Fourth Infantry Divi-

sion as the common superior, would at best not

enhance his status as a First Lieutenant. Within

a month after returning to Fort Carson from leave,

plaintiff received orders to duty in a Signal

Corps position in Vietnam, but such orders were

superseded some ten days later by orders assign-

ing him as Radio Officer of a Hawk Missile Bat-

talion in the Republic of Korea. Plaintiff was

transferred from the 1/29 FA on 21 April 1972,

given a high level OER, and reported to the

Missile Battalion in Korea on 2 June. He

remained in Korea for a little over one year,

receiving three excellent OERS on his perform-

ance, and returned to the United States in mid-

eae

det Aah el at NE A AT me

45a

1973, being assigned to the First Signal Group,

Ninth Infantry Division, Fort Lewis, Washington.

13. While serving in Korea, plaintiff had

initiated some correspondence to Officers other

than Captain Voris who had served in the 2/10

during either or both of plaintiff's assignments

to that Battalion in 1970 and 1971. Under date

of 18 September 1973, plaintiff submitted an

appeal of the spurious OER submitted for the 1

December 1970 - 12 July 1971 period, which

appeal was made in accordance with paragraph

4-2e of Army Regulations AR 623-105 of 20 Jan-

uary 1972. Included with papers submitted by

plaintiff with his appeal were a detailed state-

ment of his duty assignments, September 10, 1970,

through July 12, 1971; statements by two officers

of the Marksmanship Training Unit, Fourth Infan-~

try Division, attesting plaintiff's assignment to

that Unit from 23 November 1970 through 6 March

1971, one of which officers stated that he

had submitted an OER rating plaintiff for his

service while he was assigned to the MTU; and

statements by both the Battalion Commander at

46a

the time and the Executive Officer of the Battal-

ion. Under date of 20 November 1973, the Military

Personnel Center acted upon plaintiff's appeal.

Although reoognizing, tacitly, the false official

statements made by Captain Voris relative to his

having had plaintiff under his supervision (a)

since 1 December 1970, (b) with his report being

based upon “daily contact", (c) in the capacity

of Adjutant (S-1) of the Second Battalion, Tenth

Infantry Division throughout that period, the

Military Personnel Center did not consult person-

nel records of officers other than plaintiff and

other personnel records, e. g., personnel diaries,

which were readily available to officers station-

ed in the Center but could not be made available

to the plaintiff, in an effort to establish the

verity vel non of cther entries in the OER appeal-

ed from as well as in the surrounding record.

Plaintiff's record does not indicate that officers

of the Signal Corps Branch commented upon the

noncompliance with provisions of statutes of the

United States and regulations of the Department

of the Army in implementation thereof regarding

47a

assignments of officers appointed in the Regular

Army to basic branches and reassignments to be

made thereafter only with “branch clearance” in

Headquarters, Department of the Army. The Mili-

tary Personnel Center limited the relief grantec

to plaintiff with respect to the spurious OER to

taping small pieces of paper to the OER indica-

ting a 7 March 1971 reporting date in lieu of

1 December 1970, and indicating "115" as the num-

ber of duty days covered by the OER in lieu of

the previous false entry of "211." A form "Memo-

randum for Record” was inserted in plaintiff's

performance- file, indicating 1 December 1970 to

6 March 1971 as a “Not Rated Period,” and stating

"Efficiency report received but voided per: The

above period was erroneously included in another

report by an improper rating officer. Since

the proper rating officer is no longer on active

military duty, action will not be taken to obtain

a delayed report for the above period.” The

sole indication as to what plaintiff may have

done and how well or ill he did it is in the

statement, "Member of Marksmanship Training Unit,

48a

4th Inf Div (M), MTU, Fort Carson, CO.” The

grade of plaintiff at the time is erroneously

indicated in the memorandum as “1LT SC," whereas

plaintiff was in fact at the time a Second Lieu-

tenant. Although reference to personnel diaries

readily available to personnel attached to the

Military Personnel Center would have revealed

(a) that plaintiff had been under any supervision

by Captain Voris for some thirty days at the most,

and (b) that plaintiff had been under the con-

tinuous supervision of Major Park, as S-3, for

at least a period of seventy days from April to

25 June 1971 (a period of sixty days such super-

vision being required under applicable regulations

to permit submission of a substantive OER, and

submission of a substantive OER being mandated

from an officer who has had another under his

supervision for over sixty continuous days), of-

ficers of the Military Personnel Center refused

to delete marks or comments assigned by Captain

Voris on the challenged OER, stating "“Insuffic-

ient evidence has been presented to show that

CPT Stephen M. Voris was not your proper rating

Ee =

on th ey OE

49a

officer for the period 7 March 1971 to 11 July

397%."

14. Plaintiff was not satisfied with the act-

ion taken by the Military Personnel Center, and

while on leave from Fort Lewis, Washington, in

the Washington, D. C., area in early (974, plain-

tiff consulted a Career Counsellor in the Signal

Corps Branch at Headquarters of the Department

of the Army. The Career Counsellor did not point

out to plaintiff that his reassignment from the

2/10 to the MTU had been effected without “branch

clearance," hence not in compliance with the gov-

erning statute and implementing regulations. The

Counsellor recognized the inadequacy of the Mil-

itary Personnel Center action on plaintiff's ap-

peal, but noted that all plaintiff's OERs since

12 July 1971 had been very high level; indicated

that plaintiff's promotion to the grade of Cap-

tain (temporary) in June, 1974, was virtually

assured; and expressed an opinion that if plain-

tiff continued to receive reports of the same

high quality, the false second report from the

2/10 would be ignored.

50a

15. Plaintiff did not take further action at

the time. He was given a temporary promotion

to the grade of Captain in June, 1974. OERsS

received at Fort Lewis were of even higher qual-

ity than those seen by the Career Counsellor, and

since they were submitted by senior Signal Corps

officers respecting service in a large Signal

unit, should have received even greater attention

and credence from reviewing officers and boards.

Notwithstanding these facts, a letter under date

of 17 March 1975 from the Military Personnel Cen-

ter notified plaintiff that he was one of 2700

officers being considered for elimination from

active service to enable the Army to effect a

2200 reduction in officer personnel strength.

Among the factors which the Military Personnel

Center letter stated as having been considered

in thus reverse selecting plaintiff along with

2699 other officers were, "The presence of

any derogatory information in the records," and

"Derformance reflected by evaluation reports."

Plaintiff was offered an opportunity to submit

for the consideration of the Army Active Duty

5la

Board written material to be considered when

reviewing plaintiff's official file, and under

date of 11 April 1975 did submit a statement.

Even though the spurious second OER from the

2/10 constituted the sole explicit information

in plaintiff's record which might have been

considered "derogatory" as well as being the

sole evaluation report indicating performance

sufficiently inferior to suggest plaintiff's

being among the Army's 2700 worst officers,

plaintiff in his statement did not address these

head-on. He instead set forth in his statement

the circumstances in his personal background which

provided an unavoidable implication as to why

plaintiff has been reassigned from the 2/10 to

the MTU after only two month's service as Battal-

ion Communications Officer. Specifically, plain-

tiff was among the best rifle marksmen in civil-

ian life before entering the service, and had

demonstrated his ability to lead and train others

in developing a championship team in the 2/10.

In the absence of such explanation, plaintiff's

record is susceptible to an inference that plain-

52a

tiff committed some egregious offense or blunder

as a neophyte communications officer, and was

provptly packed off to nonsensitive non-Signal

Corps assignments either or both out of charity

toward him and inability to adduce sufficient

usable evidence to establish what he was suspec~

ted of having done. By letter dated 30 June

1975 from the Military Personnel C nter, wslaintiff

was advised that the Board to which his records

were referred had selected him for retention in

active service. Plaintiff was further advised

that all papers relating to the board consider-

ation had been removed from his record. This

was not an unmixed blessing, as the removal dep-

-ived any subsequent reviewer of the explanation

of why plaintiff had been reassigned to the MTU,

which at the same time tended to dispel any sus-

picion of a highly base reason underlying the

reassignment.

16. In 1976, a board convened to recommend

officers to the regular grade of captain, pur-

Suant to section 3299 of Title 10, U. S. Code,

which was in effect at the time, failed to sel-

53a

ect plaintiff for such promotion. Plaintiff

had been serving in the temporary grade of

captain since June, 1974, with OERsS showing con-

sistent improvement to an outstanding level. No

increase in pay or other emolument would have

been involved had he been selected, and no

reduction in grade or pay attended his nonselec-

tion. The plaintiff submits that any scoring of

his performance record which did not include the

illegally submitted second OER from the 2/10

would have placed him well above the lowest

score of any record relating to an officer who

was selected by that Board. In 1977, a second

board failed to select plaintiff for permanent

promotion to the grade of Captain, Regular Army,

and his discharge was effected on jebvhese 1,

1978, under the provisions of section 3303 of

Title 10, U. S. Code, as they then existed.

17. In December, 1977, and in January, 1978,

plaintiff made applications to the Secretary of

the Army, pursuant to section 1552 of Title 10,

U. S. Code, requesting that his nonselection for

promotion to the grade of Captain, Regular Army,

53a

be set aside and that he be retained in the Army

pending correction of his record and consideration

by a Hanitlies Board for promotion to the grade of

Captain, Regular Army, upon the basis of his cor-

rected record. The case of plaintiff was pre-

sented from the outset as one involving error, not

merely injustice in amoral or ethical sense, under

the distinction drawn by Judge Nichols concurring

in Sanders v. United States, 219 Ct. Cl. 285, 315-

322, 594 F. 2d 804, 821-824 (1979). In providing,

in Section 207 of the Legislative Reorganization

Act of 1946, that the power to correct military

Or naval records theretofore exclusively exercised

by the Congress through enacting private relief

legislation should thenceforth be exercised by

military department Secretaries, acting through

Civilian boards, the Congress clearly contemplated

two distinct types of situations in which record

correction would be sought. Such Secretary was

authamized to correct a military or naval record

under the cognizance of his department when, in

his judgment, such action was necessary (a) to

correct an error or (b) ‘to remove an injustice.

54a

As to the situation involving asserted injustice

absent any claimed legal error, then injustice,

like beauty, lies so much within the senses of

the beholder that it becomes a near impossibility

to establish standards for reviewing Secretarial

action denying relief. In such cases it is

conceivable that a Secretary could indicate to

the boards through whom he is required to act,

and the board members to the staffs, classes of

cases of asserted injustice which it is desired

to consider in some depth as opposed to ones that

can be disposed of summarily and relief denied

at the staff board examiner level. In the case

of a claimed legal error, however, e. g., a

failure to comply with a statutory standard, ob-

serve a statutory prohibition, or follow a stat-

utory or regulatorily established procedure, then

the matter departs from the purely discretionary

area and enters the realm of Constitutionally man-

dated due process of law. Determinations in these

cases are reviewable by Courts of the United

States, and such review cannot be thwarted by

ignoring the legal issues presented and disposing

55a

of the case at Examiner or Board level with a

stereotyped declaration that the applicant has

"failed to submit sufficient relevant evidence

to demonstrate the existence of probable mater-

iam error or injustice to warrant a formal hear-

ing." Applications presenting assertions of

legal error as to which the resulting material

prejudice is apparent must be presented to the

Record Correction Board and must be presented by

the Board to the Secretary for resolution of

the assertion of legal error, and failure so to

present them is in and of itself arbitrary and

Capricious action. A hearing in such cases

may be desirable to any extent that there may

be a question as to the credibility of the ap-

plicant in one or more respects, or wherein there

are errors of lack of detail or clarity in the

presentation as to which further development is

indicated, but it is the written presentation

that is of prime importance, and where the appli-

cant is represented by counsel, a conference

between members of the Board and counsel may

often be of greater assistance than a personal

we SAS AMA Mlb, Valve! aabewie

56a

hearing of the applicant. In short, the basic

statute has from the outset created a dichotomy

between cases involving asserted legal error

and the far more numerous cases in which there is

no serious contention that what was done was

legally wrong and what the applicants are

essentially seeking is a rebalancing of equities

and a larger measure cf compassion. That

procedure carries through to the procedure which

must be followed. As Judge Nichols points out

in Sanders, supra, intrusion by Courts into

disposition by military departments of purely

moral claims raises jurisdictional issues and

invites reversals. But it is, on the other hand,

a usurpation of the judicial power for a military

department to ignore legal issues which an appli-

cation presents (whether or not labeled as such

with statute and case citations), and dispose of

the application as though it presented moral or

compassionate considerations only. In the pres-

ence of a challenge to an administrative system,

the burden is upon the administrators to demon-

strate compliance with the statutes which both

57a

authorize and regulate their official actions.

They cannot avoid such a demonstration by declar-

ing that the applicant has failed to present

sufficient evidence [i. e., sufficient to satisfy

them] of noncompliance. In requiring that boards

through wh’ ch Secretaries act to exercise their

record correction authority be composed of

civilians, the Congress impliedly »~«cognized the

reluctance of military officers to recognize the

existence of any error in a system of military

administration. Those boards cannot abdicate

to military officers either the development or

the resolution of assertions of legal error

which are apparent in applications pursuant to

10 U.S.C. 1552 which are made through them.

18. The plaintiff's December, 1977, and January,

1978, applications pursuant to 10 U.S.C. 1552 did

present legal issues as hereinablve indicated.

They indicated that consideration of plaintiff for

promotion to the grade of Captain, Regular Army,

had not been made on the basis of a fair and equi-

table record, and requested that the second non-

selection of: plaintiff: be set-aside; that he be

58a

retained in active service; that his record be

corrected; and that he be again considered for

such promotion by a Board on the basis of his

corrected record. The Army had in existence

at the time machinery for such consideration by

specially constituted boards, as is indicated by

Doyle v. United States, 200 Ct. Cl. 285, 599 F.

2d 984 (1979), cert. denied, 446 U. S. $82 (1980).

These applications were denied, plaintiff was dis-

charged on 1 February 1978 from the Regular Army;

was appointed a Captain, U. S. Army Reserve, Signal

Corps Branch; but was not ordered to active duty.

Plaintiff accordingly has been illegally denied

pay and allowances attributable to his grade of

Captain under Title 37, U. S. Code, section 204.

19. Beginning on 20 June 1978, plaintiff has

made repeated applications to the Secretary of

the Army for correction of his record pursuant to

29 G.8.C. 1552. Such applications have beer

denied without according plaintiff any opportunity

for hearing before the Army Board for Correction

of Military Records ‘the civilian board through

which the Secretary is required to act under the

59a

terms of 10 U.S.C. 1552); and without presenting

to the Secretary of the Army any brief or sum-

mary setting forth the essence of plaintiff's

assertions of error and the position taken by

military personnel administrators as to each

such assertion. Plaintiff's applications have

been denied with 3-4 page documents styled "Memo-

randum of Consideration." Such documents have

not undertaken to treat in detail the assertions

made by the plaintiff; to analyze documentary

evidence submitted in support thereof; to analyze

matter submit*ed by military personnel adminis-

trators regarding plaintiff's assertions; and to

indicate specific assertions by plaintiff which

are believed to be either correct or in error

on the law and the facts, with reasuns for that

belief. Instead, each such Memorandum deals only

superficially with a selected portion of plain-

tiff's assertions; quotes without analysis terse

comment of military personnel administrators; and

ends with the conclusion that plaintiff has

“failed to submit sufficient relevant evidence to

demonstrate the existence of probable material

60a

error or injustice to warrant a formal hearing."

Plaintiff was given no opportunity to review any

such Memorandum of Consideration in advance of

its being submitted to the Board and to submit

any form of suggestion for amendment or deletion

to the Examiner or countering brief for consid-

eration by the Board. Such a Memorandum of Con-

sideration dated 2 September 1981 and transmit-

ted to plaintiff by a letter from the Board

Staff, dated 16 September, represented the end

product of over three years of repeated efforts

by the plaintiff to o tain a responsible deter-

mination of his claim. The initial detailed sub-

mission of 20 June 1978, which included original

signed documents supporting plaintiff's position,

was lost and has never been retrieved by the Board

staff. There is strong reason to doubt that it

was ever in fact submitted to the Board. A

copy was furnished by plaintiff in June, 1981,

such being the first time that Army personnel

administrators were asked to advise the Board

of their position concerning a complete and

detailed submission by the plaintiff. Upon

61a

receiving the 2 September 1981 Memorandum which

disposed of the final effort by the plaintiff,

the initial petition of plaintiff was filed in

this ourt on 2 December 1981.

20. One specific illustration only will be

given of the slip-shod administration which has

characterized the treatment by the Department of

the Army of plaintiff's 10 U.S.C. 1552 applica-

tions from the outset. One of the principal,

although not the sole, assertions of error by

the plaintiff concerned the OER submitted by Cap-

tain Stephen M. Voris as rater, originally for

the 1 December 1970 - 12 July 1971 period, but

altered in 1973 to limit the period to that of

plaintiff's second assignment to the 2/10, i. e.,

7 March 1971 - 12 July 1971. (Paragraph 10,

pages 8-9, above [pages 41la-43a of this appendix] )

Plaintiff had consistently asserted since 1973

that Captain Voris was not a person eligible under

extant Army Regulations to submit an OER “rating”

plaintiff, and was affirmatively disqualified to

act as rater of plaintiff since plaintiff had at

no time been under the supervision of Captain

62a

Voris for a period of as long as sixty days.

Plaintiff asserted that Major Peter R. Park,

the Battalion S-3, under whose supervision plain-

tiff had served full time as VOLAR Officer, 10

April - 25 June 1971, was the only eligible

rater of plaintiff under well-established regu-

lations and practice of long standing.* The

actual content of regulations in this regard was

* Evensen v. United States, Ct. Cl. No. 265-

79C, decided July 1, 1981, [228 Ct. Cl. 207,

216) 654 F. 2d 68, slip opinion bottom page 2,

654 F. wd at 70. The Army Correction Board

recommended removal by the Secretary of the

Army of an OER submitted by a rater ineligible

under the same provision of Army Regulations,

and the error involved was denominated by the

Court as “not trivial, insubstantial, or

technical,” slip opinion at 9, 654 F. 2d at

74 {228 Ct. Cl. at 216]. The action of the

Army Board in Evensen was in latter Septem-

ber, 1977, just three months before plain-

tiff's initial application in December, 1977,

urging the identical error with respect to

the OER submitted by Captain Voris.

63a

was first submitted in an administrati-e com- j

ment of the Chief, Officer Personnel Records,

dated 10 August 1981, stating, with respect to

the challenged Voris OER:

- -« «The report was submitted in accordance

with the provisions of Paragraph 2-5(1), Cl,

AR 623-105 dated 10 Sep 70, which read

in part "In some cases the immediate superior

may not be an officer of the unit to which

the rated officer is assigned but he may be

the supervisor for the rated officer's prin-

cipal duty."

ey 2 Se TARE Ce Eig haa eds alana ei aid

The quotation omitted the immediately preceding ;

sentence, i. e.:

A report will be prepared by the immediate

Superior in the rated officer's chain of

command or staff who is in the best position

to have personal or official knowledge of

the duty performance of the r-ated officer.

In some cases the immediate. ..

The full context of the regulation supports

ee ee

the position of the plaintiff, and the sentence

quoted out of context by the Chief, Officer Per-

sonnel Records, actually says that even had

Plaiutiff remained nominally assigned to the S-l1

Section under Captain Voris, Major Park would still

be the proper rater of plaintiff, in that Major

Park, though not an officer of the S-1 unit to

which plaintiff was (arguendo) assigned, was the

64a

immediate superior in rank to plaintiff who was

"in the best position to have personal or official

knowledge of the duty performance” of the plain-

eiftec. It is striking that a responsible chief

of officer personnel records administration would

make, and the Army Board for Correction of

Military Records would accept and base a decision

adverse to an applicant on, so egregious a mis-

statement concerning the regulations he adminis-

ters, just one month after the Court handed down

its decision in Evensen, the substance of which

was widely published.

21. Plaintiff submits that had his record of

service been correct with respect to the kind

and quality of performance by him during the

period from November 20, 1970, until July 12,

1971, he would have been selected in 1976 for

promotion to the grade of Captain, Regular Army.

In 1973, plaintiff officially protested the

errors in his record to military personnel admin-

istrators in Headquarters, Department of the Army,

who were authori-zed and facilitated fully to

assess the errors present. To any extent that

65a

such military personnel administrators considered

that they themselves might be lacking in statu-

tory authority to effect a full correction of

such errors, they could have advised plaintiff

of his right to apply to the Secretary of the

Army pursuant to 10 U.S.C. 1552 for such neces-

sary further correction, and the extent to which

they would support such an application by him.

Those administrators, however, although swallow-

ing the camel by tacitly recognizing that Captain

Voris had lied in submitting an official report

stating that he had plaintiff under his daily

supervision in the S-1 Section of the 2/10 from

1 December 1970 through 6 March 1971, strained

at the gnat of accepting also plaintiff's docu-

mented indication that Captain Voris had fhisrep-

resented himself as having had plaintiff under

his supervision in the S-1 section of the 2/10

from April 10, 1971, through July 11, 1971. Fur-

ther, those administrators effected only a grud-

ging minimal correction of plaintiff's record in

1973 by recognizing that he had been reassigned

to the Marksmanship Training Unit of the Fourth

ee ee eee a ee

66a

Infantry Division from December 1, i970, through

March 6, 1971, but failed to state that such had

been an unauthorised reassignment effected with-

out branch clearance, and failed to place in

plaintiff's record any matter tending to answer

the question which would arise in the mind of

any experienced reviewer, i. e., why was a young

Signal Corps Branch officer, who reportedly did

such a fine job during his first two months of

performing communications duties, suddenly re-

assigned to completely unrelated Infantry Branch

duties? The immediate further reflection of such

a reviewer would be that whatever the reason may

have been, the event was sufficiently suspicious

to suggest passing over that record and returning

to it for further consideration only if there

were still vacancies to be filled and no other

Signal Corps officers available for consideration

to fill them. The suspicion of a reviewer would

be strengthened by the fact that plaintiff, after

reassignment from the MTU (likewise not explained

by the record), was assigned to another unit for

Oover~ four months where he performed no duty in

67a

any way reiated to his Signal Corps branch status,

although such other station was well known to be

of a type which had Signal Corps personnel at-

tached, full-time; yet in such unrelated duties

was indicated to have performed with such minimal

Satisfaction that it was found necessary to reas-

sign him to Signal Corps Branch duties once again.

(Uncomplimentary implications as to Signal Corps

Branch officers and duties in general would hardly

have escaped a reviewer of that Corps, and would

have further prejudiced the reviewer against

Plaintiff as one who had sullied the general

reputation of the Signal Corps and its officers.)

22. Rather than considering the broad over-

all picture as to what had happened in the case

of plaintiff -- as would have befitted a Board

comprised of high-level civilian officers through

whom the Secretary of the Army was required by

Statute to act in exercising a power to accom-

plish what the Congress of the United States

could accomplish by enacting private relief

legislation with the approval of the President of

the United States -- the Army Board for Correction

68a

of Military Records refused upon repeated appli-

cations by the plaintiff to go beyond referring

matter submitted by the plaintiff to military

personnel administrators and uncritically accept-

ing their unsupported general assurances that

their officers had acted properly in the past and

plaintiff was entitled to nothing further. It is

very questionable on the record to what extent the

substantive assertions advanced by the plaintiff

were actually brought to the attention of the

members of the Correction Board, to say nothing

of their being brought to the attention of the

Secretary of the Army who is alone empowered

under 10 U.S.C. 1552 to correct an Army military

record, and to whose judgmental determination of

necessity the statute leaves the decision as to

whether a correction shall be made even where

error is found to exist.

23. Under the circumstances of this case,

the Secretary of the Army is responsible for the

arbitrary and capricious action of officers of the

Department of the Army who have not administered

Section 1552 of Title 10, U. S. Code, in accord-

69a

ance with either its letter or the spirit and

purpose of its enactment in 1946 and subsequent

amendatory enactments. The plaintiff has repeat-

edly made applications pursuant to that stuatute

which have demonstrated legal error of record

which has been materially prejudicial to him, and

no such demonstration has been denied or countered

with respect to the broader issues presented. As

the officer responsible for administration within

the Department of the Army of Section 1552 of

Title 10, U. S. Code, the Secretary of the Army

is chargeable in the case of plaintiff with having

acted arbitrarily and capriciously ‘iveudll faki-

ure to assure that procedures prescribed and

followed would require prompt consideration and

resolution of applications under that statute

which presented substantive assertions of legal

error, and referral to the Secretary for final

decision of the issues raised in such cases. The

case of plaintiff being one in which legal error,

as distinguished from injustice based solely upon

moral or ethical invidiousness, has been consis-

tently asserted as the basis for his applying for

70a

action under Section 1552, this Court has juris-

diction to review directly the assertions of

legal error made by the plaintiff, to consider

responses thereto obtained from the Department

of the Army, and to render judgment thereupon.

The plaintiff has attempted unsuccessfully for

over three and one-half years to obtain a sub-

stantive response from the Department of the Army

to repeated applications under Section 1552, and

over four years before making the first such ap-

plication was unsuccessful in his attempt to

obtain a full correction of the legal errors in

his record upon administrative application. The

plaintiff has fully exhausted all administrative

avenues of relief which are potentially afforded

to him by statutes and regulations.

24. The discharge of the plaintiff from the

Regular Army on 1 February 1978, was void in that

it resulted from two failures of selection for

promotion to the grade of Captain, Regular Army,

which failures of selection would not have occur-

red but for the existence of the unexplained

legal errors of record hereinabove set forth,

Jla

precluding consideration of plaintiff on a "fair

and equitable basis" as required by statute.

Plaintiff has suffered prejudice in his current

Status as a Captain, U. S. Army Reserve, assigned

to the Signal Corps Branch, as a result of the

error in his record. Plaintiff applied and was

selected for the Army Long Tour Management Pro-

gram*, being assigned what he was assured was a

high Order of Merit Number, 0113, and was told

that an assignment was available r him at Fort

Gordon, Georgia, which he indicated would be ac-

ceptable to him. In making his current applica-

tion for the LTMP, plaintiff acted pursuant to an

official announcement indicating that failure of

selection for Regular Army promotion could be

waived; had requested such a waiver; had been

selected; and his selection was approved by

the Secretary of the Army, all notwithstanding

The Army Long Tour Management Program (LTMP)

is a cc\uterpart of the Navy TAR (Training and

Administration, Reserve) program, which was

before the Court of Claims in Buchanan v.

United States (Ct. Cl. No. 130-75, decided

April 2, 1980), Ce... Ss. » 622.7. 24

373. i223 Ct. Ci. 291)

+0 thete.! WM Pelee dtae

)

72a

his explicit indication in his application of

having failed of selection for Regular Army

promotion. On 19 February 1982, some two and

one-half months after plaintiff had filed his

initial petition in this Court, a telephone call

by plaintiff to the Reserve Components Personnel

Actions Center (RCPAC) in St. Louis, Missouri --

through which all of his LTMP papers had been

processed, and from officers of which he had

consistently received encouragement -- elicited

curt statements from two different officers that

plaintiff was ineligible by reason of his fail-

ures of selection for Regular Army promotion.

Plaintiff's assertions of inconsistency between

those and past responses to inquiries by him were

answered with statements to the effect that

officers at the Center had had a “learning

experience. The effect of the legal errors in

plaintiff's record and the failures of selection

which resulted solely and exclusively therefrom,

has been to characterize plaintiff's status and

record of service as a Reserve officer as in-

ferior to other Reserve Officers the level of

73a

whose OERs relating to their Reserve service is

below that of those received by plaintiff for sub-

stantially similar service.

B. Constitutional Provisions, Statutes, And

Regulations Pertinent

25. Constitutional Provisions: ;

Amendment V to the Constitution of

the United States.

26. Statutes (all references to 10 U.S.C

are to the 1976 edition)

S. Code, section 3285

10 U. S. Code, section 3063

10 U. S. Code, section 3283

10 U. S. Code, section 3299

S. Code, section 3303

S. Code, section 3442 (c)

10 U. S. Code, section 1552

Defense Officer Personnel Management

Act, Public Law 96-513, 96th

Congress, appro-ed December 12, 1980,

94 Stat. 2835-2956, generally effec-

tive September 15, 1981.

(1) 10 U. S. C. 628 as added by DOPMA

(2) 10 U. S. C. 637(a) as a-ded by

COPMA

i. 37 U. S. Code, section 204

7,yaQ mead wv o

ee em tee

27 @ Army Regulations (AR)

a. AR 614-6 of 8 January 1963

b. AR 623-105 of 20 January 1972

c. AR 623-105 of 16 September 1970 /

Gd. AR 623-105 of 1 April 1971

e. AR 623-105 of 6 March 1970

C. Demand For Judgment

28. Plaintiff asks the judgment of this

Court that:

His purported discharge from the

Regular Army as of 1 February 1978

be declared void, and that plain-

tiff be awarded pay and allowances

incident to the grade of a Captain

of the Army serving under an appoint-

ment for temporary service, from

1 February 1978, less civilian

earnings and pay and allowances

received while serving on active

duty as a Captain, U. S. Army Re-

serve, all subject to computation..

The Secretary of the Army be

directed to place plaintiff on ac-

tive duty as a Captain, U. S. Army

Reserve, and to assign plaintiff to

appropriate duty, pending the cor-

rection of plaintiff's military

record.

The Secretary of the Army be direc-

ted to correct plaintiff's military

record by:

(1) Removing from plaintiff's

record the Memorandum of

Non Rated Period relating

to his service in the Marks-

manship Training Unit (MTU)

4th Infantry Division, Decem-

ber, 1970 - March, 1971.

(2) Removing from plairtiff's

record the 7 March - 11 July

1971 OER, submitted by

Captain Stephen M. Voris as

rater.

(3) Removing from plaintiff's

record all papers relating to

plaintiff's 1973 appeal of

the 7 March - 11 July 1971

OER and to the disposition of

that appeal.

75a

(4) Placing in plaintiff's record a

certificate that plaintiff, in

latter November, 1970, was re-

assigned from a Signal Corps

Position in the Second Battal-

ion, Tenth Infantry Division,

| to the Marksmanship Training

Unit of the Fourth Infantry

Division; the reassignment was

effected by direction of the

Commanding General of the Fourth

: Infantry Division, without Signal

Corps Branch clearance being

obtained as required by regu-

lations in effect at the time;

Since the reassignment was not

to be made with proper Branch

clearance, and the duties to be

performed in the Marksmanship

Training Unit were not appro-

priate to an officer of the

Signal Corps, the reassignment

was not indicated on an OER sub-

mitted upon plaintiff at the time

he left the 2/10; that plain-

tiff performed all duties as-

signed him in the MTU in an

outstanding manner, competing

against lifetime rifle marksmen;

was chosen for membership on

one of the Fort Carson rifle

teams, and was ultimately re-

assigned from the MTU in early

March, 1971, soiely because a

60% reduction was ordered by

higher authority in the person- |

nel of the MTU.

(5S) Placing in plaintiff's record a

certificate that when, through

no fault or deficiency on his

part, it became necessary to re-

assign him from the MTU in

March, 1971, there was no Signal

Corps position in any of the units

(6)

(7)

(8)

76a

under the Fourth Infantry Division

to which plaintiff could be assigned.

Plaintiff was therefore reassigned

to the 2/10, from wchich he had been

reassigned in November, with the

assurance that he would be reassigned

from the 2/10 to one of the first

Signal Corps positions appropriate

to his grade which should thereafter

become available at any of the

Fourth Infantry Division Units at

Fort Carson. Plaintiff was made

the first incumbent in the newly

established position of VOLAR (Vol-

unteer Army) Officer in the 2/10,

under the S-3 of that Battalion, and

performed in a superior manner estab-

lishing the pattern of operation of

successors in that position, adminis-

tering a cash incentive awards program,

in cooperation with the S-4 making

some improvements in barracks habita-

bility and scheduling a program of

of future similar improvements, and

coordinating efforts with other VOLAR

Officers at Fort Carson. Plaintiff

continued serving as VOLAR Officer

until 12 July 1971, when he was as-

signed to a position as Communications

Officer of the First Battalion, 29th

Pield Artillery Division.

Removing from plaintiff's record a

letter dated 26 February 1977, and

enclosures thereto, addressed by

plaintiff to the Captain, Regular

Army, Selection Board.

Making up a new chronological micro-

fiche record for plaintiff, with

removals and insertions made in

proper sequence, presenting no gaps

Or apparent obliterations.

Making no use of the word “plaintiff,”

Or in any other way referring to liti-

77a

gation or court direction, in

correcting his record, but in-

stead referring to him by name

and appropriate grade title as of

the time.

It be suggested that the Secretary of the

Army may exercise his discretionary power :

under 10 U.S.C. 1552 to appoint plaintiff

to the grade of Captain, Regular Army :

(either immediately or after a reason-

able period of observation of plaintiff's

active duty performance as a Captain,

U. S. Army Reserve.

The Secretary of the Army be directed, if

he does not see fit to exercise his dis-

cretion under 10 U.S.C. 1552 to appoint

plaintiff to the grade of Captain, Regular

Army, to convene, not later than two

years after the Court's announcement of

its decision, a special selection board

under subsection 628(b) of Title 10, U.S.

Code, to determine whether plaintiff should

be recommended for appointment to the

grade of Captain, Regular Army, on the

basis of his corrected record and per-

formance since returning to active duty

as a Captain, U. S. Army Reserve.

The Secretary of the Army be directed

that upon subsequent appointment of plain-

tiff to the grade of Captain, Regular Army

plaintiff's prcedence in that grade shall

be so adjusted that he will not become

78a

eligible for consideration for promotion

to the grade of Major until he will have

completed at least two years of continuous

current active duty in the grade of Cap-

tain (Reserve and Regular) in which to

bo obtain current evaluations of his per-

formance in that grade; and that upon any

subsequent promotion of plaintiff to the

grade of Major, his precedence in the

higher grade shall be adjusted to restore

the precedence taken away in the grade of

Captain.

The Secretary of the Army be directed to

correct plaintiff's military record by

inserting in his microfiche record inap-

propriate chronological sequence a state-

ment to the effect that plaintiff's ab-

sence from active duty from 1 February

1978 to the indicated date of his restor-

ation to continuous active duty was due to

an administrative error, -:hrough no fault

of plaintiff, and shall not be considered

to plaintiff's prejudice. (Plaintiff to

be described by name and grade, with no

use of the word "plaintiff" or other

indication of litigation or court direct-

ion.)

Plaintiff be granted such other relief

as may be necessary to effectuate the

judgment of the Court and as the ends

79a

eee hy. ©

of justice may require.

GEORGE JOSEPH WEIDE, JR.

By /s/ Homer A. Walkup

OR pe Rina A dR i it

Attorney

George J. Weide, Jr.

505 Wood Place, Apt. 1405

Everett, Washington WA 98203

Counsel

for

Plaintiff

Homer A. Walkup

Attorney at Law

>. ©. Bom site

Summersville, WV

26651

>. C.« Bee

Address

2501 Ridge

Road Drive

Alexandria, VA

22302

(703) 836-8281

80a

TEXT OF STATUTORY PROVISIONS CITED

Prior to

Defense Officer Personnel Management Act of 1980

Statutes as in effect at the time cf actions

on which plaintiff's claim based

TITLE 10, U. S. CODE -- ARMED FORCES

CHAPTER 307 - THE ARMY

§ 3061. Regulations

The President may prescribe regulations for

the government of the Army.

§ 3062. Policy: composition: organized peace estab-

lishment

(a) It is the intent of Congress to provide

an Army that is capable, in conjunction with

the other armed forces, of--

* * *

(1) the Regular Army, the Army National

Guard of the United States; the Army National

Guard while in the service of the United States

and the Army Reserve; and

* * *

§ 3063. Basic branches

(a) The Secretary of the Army may assign

members of the Army to its basic branches. The

basic branches are--

(1) Infantry;

(2) Armor;

(3) Artillery;

(4) Corps of Engineers;

(5) Signal Corps;

(6) Adjutant General's Corps;

(7) Quartermaster Corps;

(8) Finance Corps;

(9) Ordnance Corps;

(10) Chemical Corps;

8la

(11) Transportation Corps;

(12) Military Police Corps; and

(13) such other basic branches as the

Secretary considers necessary.

* , *

branch any commissioned officer appointed in a

special branch.

§ 3064. Special branches

(a) . . .-. The special branches are --

(1) each corps of the Army Medical Depart-

ment;

(2) the Judge Advocate General's Corps;

and

(3) the Chaplains

(b) The Secretary may not assign any officer

of the Regular Army to a special branch.

§ 3075. Regular Army: composition

(a) The Regular Army is the component of the

Army that consists of persons whose continuous ser-

vice on active duty in both peace and war is con-

templated by law, and of retired members of the

Regular Army.

PART II--PERSONNEL

* * *

CHAPTER 335--APPOINTMENTS IN THE REGULAR ARMY

* * *

§ 3283. Commissioned officers: appointment

without specification of branch: transfer

between branches.

(a) Appointments in commisioned grades in

the Regular Army shall be made without speci-

fication of branch except in each of the special

branches, in the Women's Army Corps, and as

PR eas

82a

professors or registrar of the United States

Military Academy.

(b) Commissioned officers appointed in the

Regular Army without specification of branch

shall be assigned and may be transferred and

reassigned, by the Secretary of the Army to

branches other than the special branches and

the Women's Army Corps, according to their profes-

Sional qualifications and the needs of the Army.

* * *

§ 3297. Selection boards

(a) Under such regulations as he may pre-

scribe, the Secretary of the Army shall detail

selection boards, to meet at times prescribed by

him, tc recommend promotion-list officers and

brigadier generals of the Regular Army for pro-

motion in the Regular Army. . .

* * *

(e) Not later than 10 days after a board

first meets, any officer eligible for consider-

ation by that board is entitled to send a letter,

through official channels, calling attention to

matters of record in the Department of the Army

concerning himself that he considers important.

The letter may not contain any reflection upon

the character, conduct, or motives of any officer,

or criticism of any officer.

[§ 3297 was repealed in toto by Section 204 of

the Defense Officer Personnel Management Act

approved December 12, 1980, 94 Stat. 2880.

The 1980 legislation made uniform provisions

for promotion of officers of the Army, Navy,

Air Force, or Marine Corps. Section 105

added new Chapters to Part II of subtitle

A of Title 10, JU. &S. Code. The newly added

Chapter 36 contains provisions relating to

Promotion, Separation, and Involuntary Retire-

ment. Subchapter I of that Chapter 36 pertains

to Selection Boards. § 614 under that subchapter

contains all provisions of present statutory

law corresponding to § 3297(e) above. Provisions

83a

of the currently applicable § 614 are quoted

for contrast: 94 Stat. 2852:

§614. Notice of convening of selection

boards: communications with boards

(a) At least 30 days before a selection

board is convened under section 61ll(a) of this

title to recommend officers ina grade for promo-

tion to the next higher <jgnade, the Secretary con-

cerned (1) shall notify in writing the officers

eligible for consideration for promotion of

the date on which the board is to convene...

(b) An officer eligible for consideration

by a selection board convened under section 611 (a)

of this title may send a written communication to

the board, to arrive not later than the date the

board convenes, calling attention to any matter

concerning himself that the officer considers

important to his caese. The selection board shall

give consideration to any timely communication

under this subsection.

Note the omission of prior restraints upon

officers as to matter that may be included

in communications addressed to selection

boards.]

§ 3299. Commissioned officers; promotion to

captain, major, or lieutenant colonel.

(a) Promotion-list officers shall be promo-

ted to the regular grandes of captain, major, and

lieutenant colonel, under subsections (b) and (c),

or eliminated from the active list under section

3303 of this title.

(b) Without regard to vacancies, each promo-

tion-list officer whose regular grade is first

lieutenant, captain, or major shall be considered

by a selection board for promotion to the next

higher regular grade, far enough in advance of

the date when he will complete 7, 14, or 21 years

of service. . . that if recommenced, he may be

promoted on the date on which he will complete that

service

epren

oe oN, le me

ee er en a ee ee

84a

§ 3303. Commissioned officers: effect of failure

of promotion to captain, major, or lieutenant

colonel.

(a) In this subtitle, "deferred officer"

means a promotion list offi-er considered for pro-

motion to the grade of captain, major, or lieutenant

colonel under section 3299 of this title, but not

recommended for promotion.

* * *

again by the next selection board considering

officers of his grade and promotion list. . .

(d) A deferred officer who is not recommended

by the next selection board considering officers of

his grade and promotion list shall--

* * *

(3) if he is not eligible for retirement

under. . .any. . . provision of law, be honorably

discharged on such date as may be requested by

him. . .but not later than the first day of the

seventh calendar month after the Secretary approves

the report of that board. . .

* * *

CHAPTER 339--TEMPORARY APPOINTMENTS

§ 3441. General rule

Temporary appointments may be made only

in the Army without specification of component.

§ 3442. Commissioned officers: regular and reserve

components: appointment in higher grade.

* * *

{grade and strength limitations] a regular com-

missioned officer, or a reserve commissioned of-

ficer who is serving on active duty, may be

appointed in a temporary grade that is equal to or

higher than his regular or reserve grade, without

vacating any other grade held by him. Under

regulations to be prescribed by the Secretary,

appointments made under this subsection shall be

made on a fair and equitable basis. Selections

85a

shall be based upon ability and efficiency with

regard being given to seniority and age.

TEXT OF PERTINENT PROVISIONS OF ARMY REGULATIONS

Army Regulations (AR) 614-6 of January 8,

1963, related to assignments of Army personnel.

The Petitioner, Weide, had been appointed as a

Second Lieutenant in the Regular Army, without

specification of branch, under 10 U.S.C. § 3283 (a)

(8le. above); assigned by the Secretary of the Army,

pursuant to § 3283 (b) (82a) to the Signal Corps

basic branch (§ 3063 (a)(5), 80a); and was not

subject to transfer from that basic branch nor to

reassignment to any other basic branch other-

wise than by authorization of the Secretary of the

Army (§ 3283 (b), 82a). AR 614-6, inter alia,

implemented those statutory provisions, assuring

continuing Deaprtment of the Army headquarters

cognizance of duty assignments made by commands

having assignment authority, as did the Fourth

Infantry Division in 1970-71.

AR 614-6, 8 January 1963:

1. Purpose. These regulations establish

the conditions under which military personnel will

be reassigned between commands or units of the

Army, establish the procedures to be followed in

processing requests for reassignment. .. of

Army personnel both as individuals and as members

of units.

+ * *

3. Betimations. «x

c. . . Subject to policies outlined

herein. . . commanders are authorized to effect

changes of assignment. . . of military personnel

between elements of their commands. ..

6. . . officers may be reassinged on PCS

[permanent change of station] within CONUS [contin-

ental United States]. . . However, reassignments

under this authority will not be directed without

advance approval (branch clearance) of Headquarters,

Department of the Army. . . Requests for branch

clearance will include the information requested

by paragraph 19a (1) through (4). . .

* * *

19. . . Requests will contain the following

information:

* * *

(4) Full justification for the proposed

move and whether a replacement will

be required if the request is approved.

The justification will include infor-

mation as to the availability for

reassignment of other similarly quali-

fied personnel for whom exceptions to

policy would not be necessary.

The second Army Regulation here pertinent is

AR 623-105 of September 10, 1970, governing the

submission of periodic reports evaluating the duty

performance of officers. Such reports -- Officer

Evaluation Reports (OERs) -- are an integral part

of an Army Officer's “military record," indicating

where the officer has been during periods specified

as to days; the command and subsection of command

in which the officer has served; duties performed;

an@ evaluations by superiors of the evaluated

officer's personality attributes and on-the-job

performance. Such reports are principal personnel

administration and disciplinary tools at all levels.

Regulations governing the reporting system are well

considered and usually rigidly enforced.

87a

Under the Army officer evaluation system in

effect in 1970-71, the key individual was known

as the Rater. Qualifications for submitting a

report as Rater were specifically defined by

AR 623-105. One inflexible requirement was that

a minimum period of sixty days observation was

required before one officer could submit a sub-

stantive evaluation of another. The importance of

the minimum period of required observation is il-

lustrated by the fact that the period at a later

time was increased from 60 to 90 days. The objec-

tive was double-barreled: To preclude injustice

to an individual of whom a negative impression

was received at the outset, but who increased in

stature the longer one dealt with him; as well

as to avoid doing injustice to other officers

through basing an evaluation upon a brief instance

of brilliant. performance not matched thereafter.

The September 10, 1970, edition of AR 623-

105 was in effect at the time the first report

was submitted upon the Petitioner. That report

rated Petitioner's performance as Communications

Officer at 2a high level, but prejudiced Petitioner

88a

through failing to indicate that he was being,

what was thought to be at the time permanently,

reassigned from the Battalion and replaced by

another Signal Corps officer, and through failing

to mention the reason for his transfer, which was

praiseworthy so far as he personally was concerned.

It was further necessary to stretch the period of

that report by a few days to assure that the requi-

site minimum of 60 days would be indicated. In

retrospect, the very high quality of the evaluation

may have been prejudicial, because, (a) second

lieutenants usually do not receive reports of

that quality after only sixty days at their initial

duty stations; and (b) the downgraded report which

followed at the same duty station, though in a

different position, would lead many reviewers to

the conclusion that he was at best not an officer

upon a superior could rely.

The second evaluation report submitted,

upon Petitioner's temporary reassignment to the

Battalion from 7 March through 11 July, 1971, was

actually governed by a 1 April 1971 revision of

the here pertinent provisions of AR 623-105. The

89a

difference is negligible, however. Pertinent ex-

cerpts from the April, 1971, revision are set

forth:

Personnel Efficiency Ratings

OFFICER EFFICIENCY REPORTS

* * *

2. REPORTING PROCEDURES

* * *

2-3. Nonrated periods. a. Every period of less

than 60 duty days for company grade officersand

Warrant officers or 90 duty days for all other

Officers. ..

* o o

2-5. Designation of rater, indorser, and reviewers.

a. Rater.

(1) A report will be prepared by the immed-

iate superior in the rated officer's chain of

command or staff who is in the best position to

have personal or official knowledge of the duty

performance of the rated officer. In some cases

the immediate superior may not be an officer of

the unit to which the rated officer is assigned,

but he may be the Supervisor for the rated offi-

cer's principal duty.

* * ”

b. Indorser.

(1) Normally, a report will be indorsed by

the officer who prepares the report of the rater.

However, exceptions may be made when this would

result in the indorsement being prepared by a

superior who does not have personal or official

knowledge of the performance of duty of the rated

officer. In some cases the indorser will not be

an officer of the unit to which the rater is as-

Signed, but rather the Superior officer of the

rated officer's supervisor for the particular

duty which the rated officer is performing.

Oe Al i 1. ner morentaitall,

90a

c. Reviewer

(1) The reviewer will be a U. S. Army

officer on all reports. He nor-

mally will be the officer who

rates the insorser. .

* * ”

2-7. Inclosures .. .«

b. Pavorable and unfavorable communica-

tions such as letters of appreciation, commen-

dation, Article 15 proceedings, and similar

correspondence will not accompany the report.

AR 600-31, AR 640-98, and AR 672-5-1 outline

procedures for processing such communications.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.