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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985

## Text

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U Office -Supieme Court, US

84-1873 PPE

MAY 29 1995

a

ALEXANDER oT
L STEVAS

IN THE a CLERK

ee
ee

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

i.
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

~

ii
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

15

iv
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
2
18, 20n
20, 26
L368, ice,
3, l6a

Vv

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

vi

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
8, 85a

17

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-

2

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

3
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)

4
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:

5

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

6

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

8

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

9

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

10

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

11

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-

12

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-

13

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

14

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

15

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

16

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

———————

17
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

18

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

19

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

20

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)

21

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

22

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).

23

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

24

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

25

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

26

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

27

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

28
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
ia

la

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

v.
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

la
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

2a
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.)

ee

3a

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,

4a

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

5a
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

6a

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

7a

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

8a
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

9a
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

mt
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

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

|
|
)
4

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)

~
©
Cc

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

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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:

a.

b.

His purported discharge from the
Regular Army as of 1 February 1978
be declared void, and that plain-
tiff be awarded pay and allowances
inciden

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0280%3A1. Public record. Not legal advice.