Petition for Writ of Certiorari — Porter v. United States

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Supreme Court, U.S.

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Bs1i6s9 wPR 209 1999

No. 99- OFFICE OF THE CLERK

In The Supreme Court of the United States

OCTOBER TERM, 1999

GREGORY C. PORTER, Petitioner,

Vv.

UNITED STATES, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Guy J. FERRANTE

(Counsel of Record)

KING & EVERHARD, P.C.

Suite 112

450 W. Broad Street

Of Counsel: Falls Church, Virginia 22046

(703) 241-8282

KATHLEEN J. ST. JOHN

KANE ST. JOHN Counsel for Petitioner

2900 Delk Road

Suite 700-306

Marietta, Georgia 30067

(770) 850-1175

ude

QUESTIONS PRESENTED FOR REVIEW

i. Should the Board for Correction: + Military Records

(BCMR) be permitted to apply a heighened “egregious

error” standard in lieu of the long-standisz “harmless error”

standard adopted in Sanders v. United States, 594 F.2d 804

(Ct. Cl. 1° 79) ) (en banc), (cited with ap »roval in Chappell

v_ Wallace, 426 U.S. 296, 303 (1983)?

2. Congress having relinquished its authority to legislate

private bills of relief for servicemembers (2 U.S.C. § 190(g))

and delegate] this function to the BCMR (10 U.S.C. § 1552),

does 10 U.S.C. § 628 afford discretion to civilian BCMRs to

defer to military authorities and to use an insuperable

“egregious error” standard in resolving requests for

corrections of military records?

3. May the BCMR condition relief upon proof of an

“egregious error” when the governing regulatory authority

prescribes a “probable material error” standard?

4. Where the scoring procedures of the Air Force’s SSBs

result in a supercompetitive standard for selection, is it an

abuse of discretion for the AFBCMR to substitute an SSB

remedy for the traditional correction and backpay remedies

afforded wader 10 U.S.C. § 15527

5. | May the government or a Court of Appeals rely in any

fashion on an apparently fraudulent report of administrative

proceedings?

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Statement of the Case

I. Porter Affects the Substantial Interest

of Large Numbers of Individuals; It Also

Represents a Dramatic Break With

II. Porter’s Construction of 10 U.S.C. § 628

Violates The Plain Language Rulle............................

If]. The Harmless Error Standard Does Not

Impermissibly Involve Judges and Civilians

Sie IY FD escscctcseercetanne aateheee sede.

IV. There Was No Discretion By the AFBCMR

to Use an “Egregious Error” Standard Under

Section 1552, Given Super-Competitiveness of

Selection Board Scoring Procedures; Furthermore,

Before Upholding Discretion of AFBCMR to Use

an “Egregious Error” Standard Court Should Have

Resolved Authenticity and Legality of the Second

Statutory and Regulatory Provisions....................ccccc0000+

COCO OO PRE E EEE E HEH HEHHETE EHH E EEE

TOOTH OHH HTH HEHE EEE EEE ETE EEE EE EE EE EEE HE HE EE HEHEHE HEE EEE

TABLE OF AUTHORITIES

Cases Page

Adkins v. United States, 68 F.3d 1317

RENEE een ae ne 2

Babbitt v_ Sweet Home Chapter of Communities

for a Greater Oregon, 515 U.S. 687 (1995)...0....cccccccccceeee. 29

Bell v_ United States, 366 U.S. 393 (1961)...........cccccccccceseees ]

Caddington v. United States, 178 F. Supp. 604

Neen cases 2, 27

Comelius v. Nutt, 472 U.S. 648 (1985)..000.0.ccccccccceeeeeeeee 34

Cunningham v. U.S., 39 Fed. Cl. 688 (1998)........00.ccccee 21

Darby v. Cisneros, 509 U.S. 137 (1993).........ccccccccecececeseeees 31

Duhon v. United States, 461 F.2d 1278

aT cidsomsevnaienael 2, 27

Doyle v. United States, 599 F.2d 984

a Me BUI NI oo vcececeevvevecvevessecersersesevenesss> 22, 32

Evensen v. United States, 654 F.2d 68 (Ct. Cl. 1981)...22, 34

Engels v. United States, 678 F.2d 173 (Ct. Cl. 1982).......... 21

Germano v. United States, 26 Cl. Ct. 1446 (1992).............. 21

Grieg v. United States, 640 F.2d 1261 (Ct. Cl. 1981).....21,33

Hary v. United States, 618 F.2d 704 (Ct. Cl. 1980)............ 21

King v. United States, 19 Cl. Ct. 703, aff'd per curiam,

ok Ge a, eC 21

Kotteakos v. United States, 328 U.S. 750 (1946).......... 23, 34

Laningham v. United States v. United States, 5 Cl. Ct. 146 (1984)...00000000..... 35

Mitchell v. United States, 930 F.2d 893

SET ps aa a 25

Mount H City School District Board

of Education v. Doyle, 429 U.S. 274, 286 (1977)............. 33

Muse v. United States., 21 Cl. Ct. 592 (1990)............... 21,27

Orloff v. Willoughby, 345 U.S. 83 (1953)... cece 33

iii

Price v. United States, = Fed. Cl.

(93-536, Feb. 5, 1999)... cccccccccceccesecveseeveveseeveseeveeveveves 26

Proper v. United States, 139 Ct. Cl. 511 (1957)...0.......... 3, 33

Ray v. United States, 453 F.2d 754 (1972)... 35

Riley v. United States, 608 F.2d 441

I ae 21

Romer v. Evans, 517 U.S. 620 (1996).....0.0.cccccccceccececeeeeeeeeee 2

Sanders v. United States, 594 F.2d 804

BE ie Se asialndbisuchounicincs semusaacsuerdntactenebeceacan passim

Sharp v. United States, 27 Fed. Cl. 52 (1992)......0..0ccc. 31

Skaradowski v. United States, 471 F.2d 627 (1973)............ 27

Skinner v. United States, 594 F.2d 824

A a le 21,33

Sullivan v. Louisiana, 508 U.S. 275 (1993)...............2.065 23

Testan v. United States, 424 U.S. 392 (1976)....000.. 2

Thompson v. Thompson, 484 U.S. 174.00.00000.0..cccccceceeees 3]

Wotowic-McGill v. United States,

cae adeuesetbiabansanuns 21

Yee v. United States, 512 F.2d 1383

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Statutes | Page

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Regulations Page

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Se Se I iscvancoivivcisssncmcaraveaenncticmeene 10, 31

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Miscellaneous Page

Russell O. Wheeler, The Secretary of the Air Force,

Correction of Military Records and the Limits of

Discretion, 7 Fed. Cir. Bar J. 193 (1998).........0...0.00000. 35

In the Supreme Court of the United States

October Term, 1999

‘

GREGORY C. PORTER, Petitioner,

UNITED STATES, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Gregory C. Porter, a former active-duty Air Force

officer, respectfully petitions for writ of certiorari to review

the judgment of the United States Court of Appeals for the

Federal Circuit in this case.

Military pay is a function of statute. Bell v. United

States, 366 U.S. 393 (1961). Active duty soldiers have a

statutory right to be paid until their service is properly.

terminated. 37 U.S.C. § 204; Sanders v. United States, 594

F.2d 804, 810 (Ct. Cl. 1979) (en banc). Pursuant to this

statute, soldiers have traditionally been able to maintain

Tucker Act’ suits for back pay in their existing grade when

improperly separated on the premise that an improper

' 28 U.S.C. § 1491. All Tucker Act claims are appealed to the Court of

Appeals for the Federal Circuit. 28 U.S.C. § 1295. There will likely

never be a split of authority among the circuit courts in a Tucker Act

matter.

separation does not terminate the right to continue drawing

pay in that grade. Id; Adkins v. United States, 68 F.3d 1317,

1327 (Fed. Cir. 1995). The decision below wrongly

extinguishes this long,-standing cause of action and replaces it —

with a claim for pay in a higher grade, in apparent conflict

with Testan v. United States, 424 U.S. 392 (1976).

Since their inception, Boards for Correction of Military

Records (BCMRs) have had a liberal mandate to do justice

and courts have repeatedly recognized that correction boards

“have an abiding moral sanction to determine, insofar as

possible, the true nature of an alleged [error or] injustice and

to take steps to grant thorough and fitting relief." Yee v.

United States, 512 F.2d 1383, 1387-1388 (Ct. Cl. 1975),

quoting Duhon v. United States, 461 F.2d 1278, 1281 (Ct.

Cl. 1972); Caddington v. United States, 178 F. Supp. 604

(Cl. Ct. 1959}. The decision below imposes an insuperable

“egregious error” standard for correction of records in

BCMRs. This standard violates both the long-standing

precedents above as well as the governing regulations of all

three military departments which prescribe that a military

record will be corrected upon showing of “probable material

error.” 32 C.F.R. § 865.4 (1998) (Air Force); 32 CF.R §

581.3 (1998) (Army); 32 C.F.R. §723.3 (1998) (Navy).

In addition, the standard effectively eliminates officers’

correction remedy in the civilian BCMR and forces them to

seek alternative back pay relief in a military forum. In 1947,

Congress passed 2 U.S.C. § 190(g) precluding private bills of

relief to servicemembers correcting their military records. As

a result of this statute, servicemembers effectively lost their

constitutional right of access to the legislative process.”

Concurrently, Congress passed another statute, 10 U.S.C. §

* CY Romer v. Evans, 517 U.S. 620 (1996) (statute barring gays access

to state legislative process held unconstitutional).

1552, which created boards of civilians (BCMRs) to correct

errors. The intent of this statute was to provide a substitute

civilian forum to redress wrongs and errors by the military.

Proper v. United States, 139 Ct. Cl. 511, 526 (1957) (“Since

the errors or injustices which might require correction were

originally made by the military, Congress made it manifest

that the correction of those errors and injustices was to be in

the hands of civilians.”); 34 C.F.R. 831.2 (1949) (10 U.S.C. §

1552 “is construed as a substitute for the correction of

military records by Congressional action”).

The Court of Appeals’ elimination of veterans’

substantive pay rights, its imposition of an “egregious error”

standard in the BCMR, and its transfer of the BCMR’s

functions to military officials are completely unwarranted

and unsustainable.

Opinions Below

The Court of Appeals’ decision reversing the

judgment of the Court of Federal Claims, 163 F.3d 1304, is

reproduced in the Appendix (“App”) at App 1. Its order

denying rehearing and declining rehearing en banc is at App.

48. The relevant decisions of the Court of Federal Claims are

at App. 50, App. 84, App. 95, and App. 100. The relevant

opinions of the AFBCMR are at App. 109, and App. 115.

The latter is referred to as the “Second Addendum” and a

photocopy of the original has been provided to the Clerk as a

lodging with a letter of even date with this filing.

Jurisdiction

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1) (1998). The judgment of the Court of

Appeals was entered on November 9, 1998. A timely

petition for rehearing was denied on January 20, 1999.

Statutory and Regulatory Provisions

2 U.S.C. § 190(g} provides in pertinent part:

No private bill or resolution (including so-

called omnibus claims or pension bills), and no

amendment to any bill or resolution,

authorizing or directing . . . (3) the correction

of a military or naval record, shall be received

or considered in either the Senate or the House

of Representatives.

(NOTE: Partial repeal of Section 2 of H. Res. 274 of the

Ninety-sixth Congress, Nov. 4, 1979, provides that this

section, insofar as it relates to the Senate, is repealed. The

subject is now governed by the Standing Rules of the Senate,

which provides the same result.)

10 U.S.C. § 1552 provides (in pertinent part):

(a)(1) The Secretary of a military department

may cofrect any military record of the

Secretary's department when the Secretary

considers it necessary to correct an error or

remove an injustice. Except as provided in

paragraph (2) [in certain cases involving

enlisted personnel], such corrections shall be

made by the Secretary acting through boards

of civilians of the executive part of that

military department. The Secretary of

Transportation may in the same manner

correct any military record of the Coast

Guard.

10 U.S.C. § 628 (1980) (later amended) provided (in

pertinent part):

(3) Corrections under this section shall be

made under procedures established by the

Secretary concerned. In the case of the

Secretary of a military department, those

procedures must be approved by the

Secretary of Defense.

applicable current appropriations, a claim for

the loss of pay, allowances, compensation,

emoluments, or other pecuniary benefits, or

for the repayment of a fine or forfeiture, if, as

a result of correcting a record under this

section, the amount is found to be due the

claimant on account of his or another's service

in the Army, Navy, Air Force, Marine Corps,

or Coast Guard, as the case may be, or on

account of his or another's service as a civilian

employee... .

(b)(1) In the case of an officer who is eligible

for promotion who was considered for

selection for promotion by a selection board

but was not selected, the Secretary of the

military department concerned, under

regulations prescribed by the Secretary of

Defense, may convene a special selection

board under this subsection . . . to determine

whether such officer should be recommended

for promotion if the Secretary concerned

determines that--

(A) the action of the board

which considered the officer

was contrary to law or

involved material error of fact

or material administrative error;

(B) the board did not have

before 1 for its consideration

material information.

(2) A special selection board convened under

paragraph (1) shall consider the record of the

officer as his record, if corrected, would have

appeared to the board that considered him.

That record shall be compared with the

records of a sampling of those officers of the

same competitive category who were

recommended for promotion, and those

officers who were not recommended for

promotion, by the board that considered him.

(3) If a special selection board convened under

paragraph (1) does not recommend for

promotion an officer whose name was referred

to it for consideration, the officer incurs no

additional failure of selection for promotion.

(c)(1) Each special selection board convened

under this section shall submit to the Secretary

of the military department concerned a written

report, signed by each member of the board,

containing the name of each officer it

recommends for promotion and certifying that

the board has carefully considered the record of

each officer whose name was referred to it.

(2)The provisions of sections 617(b) and 618 of

this title apply to the report and proceedings of

a special selection board convened under this

section in the same manner as they apply to the

report and proceedings of a selection board

convened under section 61 1(a) of this title.

(d)(1) If the report of a special selection board

convened under this section, as approved by the

President, recommends for promotion to the

next higher grade an officer whose name was

referred to it for consideration, such officer shall,

as soon as practicable, be appointed to the next

higher grade in accordance with subsections (b),

(c), and (d) of section 624 of this title.

(2) An officer who is promoted to the next

higher grade as the result of the recommendation

of a special selection board convened under this

section shall, upon such promotion, have the

same date of rank, the same effective date for the

pay and allowances of that grade, and the same

position on the active-duty list as he would have

had if he had been recommended for promotion

to that grade by the board which should have

considered, or which did consider, him... .

10 U.S.C. § 628 (October 17, 1998) provides (in pertinent

part):

(b) Persons considered by promotion boards

in unfair manner.

(1) If the Secretary of the military

department concerned determines, in the case

of a person who was considered for selection

for promotion by a promotion board but was

not selected, that there was material

" unfairness with respect to that person, the

Secretary may convene a special selection

board under this subsection to determine

whether that person (whether or not then on

active duty) should be recommended for

promotion. In order to determine that there

was material unfairness, the Secretary must

determine that--

(A) the action of the promotion board that

considered the person was contrary to law or

involved material error of fact or material

administrative error, Or

(B) the board did not have before it for its

consideration material information.

(2) A special selection board convened

under paragraph (1) shall consider the record

of the person whose name was referred to it

for consideration as that record, if corrected,

would have appeared to the board that

considered him. That record shall be compared

with the records of a sampling of those

officers of the same competitive category who

were recommended for promotion, and those

officers who were not recommended for

promotion, by the board that considered him.

(3) If a special selection board convened

under paragraph (1) does not recommend for

promotion a person whose name was referred

to it for consideration, the person incurs no

additional failure of selection for promotion.

(d) Appointment of persons selected by

boards.

(1) If the report of a special selection board

convened under this section, as approved by

the President, recommends for promotion to

the next higher grade a person whose name

was referred to it for consideration, that

person shall, as soon as practicable, be

appointed to that grade in accordance with

subsections (b), (c), and (d) of section 624 of

this title. However, in the case of a board

convened under this section to consider a

warrant officer or former warrant officer, if

the report of that board, as approved by the

Secretary concerned, recommends that

warrant officer or former warrant officer for

promotion to the next higher grade, that

person shall, as soon as practicable, be

appointed to the next higher grade in

accordance with provisions of section 578(c)

of this title (rather than subsections (b), (c),

and (d) of section 624 of this title).

(2) A person who is appointed to the next

higher grade as the result of the

recommendation of a special selection board

convened under this section shall, upon that

appointment, have the same date of rank’, the

same effective date for the pay and allowances

of that grade, and the same position on the

active-duty list as he would have had if he had

been recommended for promotion to that

grade by the board which should have

considered, or which did consider, him. In the

case of a person who is not on the active-duty

list when appointed to the next higher grade,

placement of that person on the active-duty

list pursuant to the preceding sentence shall

be only for purposes of determination of

eligibility of that person for consideration for

promotion by any subsequent special

selection board under this section.

(f) Convening of boards. A board convened

under this section--(1) shall be convened

under regulations prescribed by the Secretary

of Defense ....

Department of Defense Directive (DoDD) 1320.11 (1996)

provides (in pertinent part):

DEFINITIONS

4. Special Selection Board. ... Special

Selection Boards make select and nonselect

recommendations, as distinguished from

providing advisory opinions as to whether an

officer would have been selected had an officer

been properly considered by the original

board.

AFR 36-89 4 35 (1992) provides (in pertinent part):

(b) An SSB will consider the record of the officer as

it would have appeared to the original board had the officer

been properly considered. The officer’s record will be

compared with benchmark records from the original board

(paragraph 16).

paragraph 14.

(d) The applicant will be selected if the SSB finds the

applicant fully qualified for promotion and if his or her

record scores higher than all the nonselect records and ties at

least one of the selected records from the original board.

AFR 36-89 4 14 (1992) provides in pertinent part:

(b)(3)Board members will score records by secret

ballot, that is, without benefit of discussion, unless a

significant difference (a split) occurs in the scores given a

particular record (subparagraph e). Board members may

request to discuss records that did not split. The board

president may approve or disapprove such requests. .. .

(d) Scoring Scale:

(1) For board or competitive categories with

quotas less than 100 percent, the following scoring scale will

be used:

10.0 Absolutely superior

9.5 Outstanding record

9.0 Few could be better

8.5 Strong record

8.0 Slightly above average

7.5 Average

7.0 — Slightly below average

6.5 Well below average

6.0 Lowest in potential

e. Scoring Splits:

(1) As board members complete their scoring on a

particular record, the administrative staff will review the

scores to determine if any significant differences exist

between the scores of a given record.

- i

(2) A significant difference, or a split, is defined as

a difference of more than one and a half points between any

two scores on a record: for example, 6 and 8, or 8 and 10. . .

(3) When a split occurs in the scoring of an

officer’s record, the board members may discuss the record

and may change their scores or votes as required to resolve

the split. Discussion must be constrained as explained in

subparagraph b(3). Board members may request to

reconsider their scoring of records which did not split. The

board president may approve or disapprove such requests.

f Identifying the “Gray.” During the board, the

administrative staff will record the board members’ scores in

a computerized score file, produce preliminary scoring runs

(a cumulative order of merit fore each panel), and verify the

accuracy of the file. “Gray” occurs on an order of merit

when the quota line (the selection percentage) falls among

officers who have the same score.

AFR 36-89 4 16 (1992) provides (in pertinent part):

On adjournment of the board, recorders will collect all

score rosters, internal working papers, etc. Board members

will not be allowed to retain any documents. Following

approval of the board’s results by the Assistant Secretary of

Defense (Force Management and Personnel), the recorders

will destroy all score rosters and internal working papers

associated with the board that are not part of the board

record. Before destroying the score rosters, five records from

among the lower scoring selects and five records from among

the highest scoring nonselects . . . will be identified. This

sample of records, called benchmark records, will be used if

special selection boards (SSBs) are required.

32 CFR § 865 (1993) (found at 50 Fed. Reg. 36426 ef seq.)

provides (in pertinent part):

Subpart A--Air Force Board for Correction of Military

Records

§ 865.3 Function of the board.

The function of the Board is to consider all applications

properly before it to determine the existence of an error or an

injustice and, when appropriate, to make recommendations

to the Secretary of the Air Force.

§ 865.4 Board jurisdiction.

The Board shall have jurisdiction to review and determine all

matters properly brought before it, consistent with existing

law.

§ 865.9 Consideration of application.

Denial of Application. The Board may deny an

application if it determines that insufficient relevant evidence

has been presented to demonstrate the existence of probable

material error or injustice, that the applicant has not

exhausted other effective administrative or legal remedies

available to him or her, that effective relief cannot be granted,

or that the applicant did not file his or her application within

3 years after he or she discovered or reasonably could have

discovered the alleged error or injustice . . .

§ 865.14 Access to Records

(a) Official Records. the applicant will have access

to all records considered by the Board with the exception of

any Classified and privileged matter contained therein.

§ 865.18 Deliderations, findings, decisions, and

recommendations

}

(a) Deliberations. Only members of the Board and

its staff will be present during the deliberations of the Board.

(b) Further Information. During the course of review

of the case, when it appears to the Board’s satisfaction that

the facts have not been fully and fairly disclosed by the

records or by the testimony and other evidence before the

Board, the Board may require the applicant to obtain, or the

Board may obtain, such further information as it may

consider essential to a complete and impartial determination

of the facts and issues. The applicant will have access to

evidence developed by the Board on its own motion in

accordance with § 865.14 and may submit additional

comments with regard to the evidence.

Following a hearing the Board will make written findings,

decisions, and recommendations. A majority vote of the

members present on any matter before the Board will

constitute the action of the Board and will be so recorded.

§ 865.20 Record of Proceedings.

When the Board has completed its deliberations, a

record of proceedings will be prepared. Such a record will

indicate whether or not a quorum was present and the name

and vote of each member present. The record of proceedings

will include the application for relief, briefs and written

arguments; advisory opinions, the findings, conclusions, and

recommendations of the Board, and all other papers,

documents, and reports necessary to reflect a true and

complete history of the proceedings. The Report will also

include a transcript of testimony and any minority reports.

The record so prepared will be certified as true and compete

by the signature of the panel chairman or designee.

Statement of the Case

Petitioner was separated from active duty as a sole and

direct consequence of being nonselected for promotion by

two promotion boards. 10 U.S.C. § 631. In his records were

derogatory comments and evaluations and false duty titles.

Petitioner filed an application for correction of military

records in 1984 alleging that his frequently-drunk rating

supervisor set him up to take a fall for the supervisor’s

drinking buddy. In 1985, the AFBCMR found error in

Petitioner’s record, made a partial correction, and referred his

(still) erroneous records to two special selection boards

(SSBs) so that he could be reconsidered for promotion.

Petitioner's SSBs convened in 1986 and nonselected him.

Petitioner filed another application in the AFBCMR in

1988 and a request for reconsideration in 1990. Unsuccessful

in these endeavors, Petitioner filed a wrongful separation suit

in the Court of Federal Claims, pro se, for correction of his

record errors, voidance of his promotion passovers,

constructive reinstatement, and back pay pursuant to 37

U.S.C. § 204.

The Court of Federal Claims (the “Trial Court”) noted

that there appeared to be material errors in Petitioner's

promotion board record, as reviewed by both the regular

promotion boards and the 1986 SSBs. App. 62-70. After

determining that the AFBCMR record contained no

evidence’ to support a harmless error finding, the Trial

> With respect to the error which the AFBCMR had corrected in 1985,

that court noted that the AFBCMR found that Petitioner’s submission

was “‘sufficient to overcome the rationale expressed by the Air Staff [that

Porter would not have been promoted in any event]."” App. 52. With

respect to the still uncorrected errors in Petitioner’s record, the court

stated: “Not having conceded the OER or OSB errors, neither the

AFBCMR ror the government, understandably, has made any attempt to

present facts or grounds sufficient for determining that, even with the

Court reminded the Air Force that it had the ultimate burden

of showing harmlessness. App. 70. The Trial Court ordered

the AFBCMR to make a “harmless error” determination and

it specified that the AFBCMR had to make these

determinations itself, App. 78.

On remand, the AFBCMR corrected the remaining

errors in Petitioner’s promotion board records. The Air

Force proffered no evidence* and the AFBCMR made no

“harmless error” determination. Instead, the AFBCMR

required Petitioner to satisfy a “no doubt of selection”

standard for an AFBCMR-directed promotion. App. 113.

The AFBCMR then recommended that Petitioner’s record be

reconsidered by two new SSBs and made all further relief

contingent upon the SSBs:

If the applicant is nonselected by the SSBs, no

further action will be required on his application.

However, if he is selected for promotion, the

applicant will be provided the opportunity to

request reinstatement in the Air Force and his

request will be considered by the Board.

App. 113.

Two new SSBs, convened in November 1993, non-

selected Petitioner. Petitioner received a letter from the Air

Force Military Personnel Center stating, “The SSB

determined that had your corrected records been considered

by the original boards, you would not have been selected for

errors, the SSB would have reached the same decision regarding Mr.

Porter’s likelihood of promotion by the original selection boards.” App.

70.

. The exhibits before the AFBCMR are listed on the last page of the

1992 Order.

promotion.” Letter from Steven M. Sheehan to Gregory C.

Porter, dated 26 Jan 94. The case then returned to the Trial

Court.

In the Trial Court, the government moved for summary

judgment, arguing that the Petitioner's SSB non-selections

established harmless error. The Trial Court denied the

government’s motion (App. 84) for two principal reasons.

First, very early in the litigation, the Air Force had admitted

that its SSBs were potentially more competitive than the

original board. App. 52-53 n4, App. 74 (text and n18). In

addition, the Court observed that the Air Force’s scoring

regulation imposed a manifestly supercompetitive standard.

App. 92 n4. Thus, as a factual matter, SSBs did not measure

harm in the original promotion board.’ The Trial Court’s

second reason for denying the government’s summary

judgment motion was that military SSBs cannot perform the

functions of the civilian BCMR under the BCMR’s enabling

statute, 10 U.S.C. § 1552. App. 91.

Based on the foregoing, the Trial Court concluded that

Petitioner’s promotion passovers must be voided. An

additional reason for this decision, articulated in a

clarification order dated Dec. 30, 1994 (App. 95), was the

Trial Court’s view that 10 U.S.C. § 628 (1980) authorized

SSB consideration only for an “officer”-meaning that a

former officer had to be reinstated before meeting an SSB.

The Trial Court’s October 1994 Order (App 84)

compelled the Air Force to void Petitioner’s promotion

passovers and to constructively reinstate him. The order

also remanded to the AFBCMR one last time to determine

* The Trial Court held that this did not violate the SSB enabling

statute, 10 U.S.C. § 628, because that statute required only that the

Petitioner's record be compared with a “sampling” of records from the

original board. App. 88.

jl.

whether Petitioner’s 1993 SSBs had been infected with

procedural error.

In response to this remand order, a document known as

“the Second Addendum” was created by the government.

App. 115 (a lodging of a copy of the original has also been

filed.) The Second Addendum responded to the Court's

October 1994 Order. The Second Addendum also offered a

rebuttal to the Court’s legal and factual analysis, which was

contrary to the legal and factual positions of the government

up to that point in the proceeding. Of particular interest was

a conclusory and unsupported® statement in the Second

Addendum that the Air Force’s SSB procedures were not

supercompetitive. The Second Addendum was filed in the

Trial Court, but the government filed no motion to reconsider

the court’s reinstatement and back pay order and the court

did not reconsider that order. App. 100.

The government appealed. Petitioner did not cross-

appeal the decision of the lower court that his SSBs

conformed with 10 U.S.C. § 628. He was not concerned with

whether or not a supercompetitive SSB process violated

Section 628 and he did not want to be promoted by an SSB.

Instead, he believed as the lower court did, that the Air

Force’s supercompetitive SSB process made it inappropriate

under Section 1552 for the Air Force to abandon Sanders and

to make his reinstatement claims depend on the

determinations of supercompetitive military SSBs.

The government’s position on appeal mirrored the

Second Addendum, both factually and legally. Petitioner

filed a Motion to Remand to Supplement the Record so that

the provenance of the Second Addendum could be

* The records supporting the Second Addendum are listed on its last

page. The government’s submissions during that proceeding are

included at App. 135-147. A review of these documents reveals that they

do not address supercompetitiveness of the SSBs.

)

;

iiiiisiisicive laden bith.

ascertained. Petitioner maintained that the Second

Addendum was facially irregular in ways that suggested that

it was not a genuine product of the BCMR and was, instead

generated ex parte, solely for litigation In an order dated

September 30, 1997, the Court of Appeals (Newman J.)

denied Petitioner’s motion on the ground that such a motion

should have been included in his Response brief. Then,

noting that Petitioner was pro se at the time of that filing, the

Court vacated Petitioner’s Response brief with leave to file a

new Response and to include the remand motion therein.

Petitioner’s Brief for the Plaintiff-Appellee, dated

November 17, 1997, included a conditional motion to

remand. App. 148-87. This motion requested that the Court

not “rely” upon the Second Addendum unless it first

remanded to determine its provenance. The government

declined to respond to the merits of Petitioner’s allegations.

In its decision of November 9, 1998 (App. 1), the

Court of Appeals framed Petitioner’s motion as a motion

concerned solely with “deference” to the government’s legal

position and denied it on that basis. App 47n2. The Court

then reversed the judgment of the lower court and, for the

first time, held that after the enactment of 10 U.S.C. § 628

(1980), the Sanders “harmless error” standard was not

controlling in cases where an officer met an SSB. The Court

further reasoned that the Second Addendum afforded

Petitioner all of the rights to which he was entitled under 10

U.S.C. § 1552. App. 45.

While the case was pending in the Court of Appeals,

Congress passed an amendment to Section 628, supra at 7,

which codified the Air Force’s practice of convening SSBs

for former officers. Thus, one of the justifications for the

lower court’s decision—the need to reinstate an officer prior

to convening an SSB-no longer applies. The issues that are

‘ST

raised in this Petition are equally pertinent to both the old

Section 628 and the new Section 628.

Petitioner filed a petition for rehearing and a suggestion

for rehearing in banc, which were denied on January 20,

1999. App. 48.

Reasons For Granting The Writ

1. Porter Affects the Substantial Interest of

Large Numbers of Individuals; It Also

Represents a Dramatic Break With Precedent

Active duty’ officers have an enormous personal stake

in continuing their active duty service. This is partly because

the all-or-nothing retirement and benefits system does not

vest until the twentieth year.

The most common mechanism for separating officers

prior to retirement eligibility is the so-called “up-or-out”

provisions of 10 U.S.C. §§ 631 and 632, which were used to

separate the Petitioner. App 51. These “up-or-out”

provisions authorize the involuntary separation of officers if

they are twice passed over (nonselected) by promotion

selection boards.

The “up-or-out” system is not perfect and when it

fails, the effects are devastating, both financially and

"Active duty officers fall under the provisions of the Defense Officer

Personnel Management Act, set forth in Title 10, Chapter 36. The pay

rights of all active duty officers (including active duty reservists) are

determined under 37 U.S.C. § 204, which creates a substantive right of

t until active duty status has been properly terminated.

Sargisson. 913 F.2d 918, 920 (19990). Reserve officers who are not on

active duty are covered under a different statutory scheme. the Reserve

Officer Personnel Management Act and, except in very limited

circumstances, their pay rights are determined under 37 U.S.C. § 206.

37 US.C. § 206 allows for pay only if an officer has actually performed

his duties.

See po

psychologically. Historically, the most common way for ithe

“up-or-out” system to break down is the way it broke down

in Petitioner’s case--the officer’s record goes to a promotion

board with material error in it. Each year, many hundreds (if

not thousands) of active duty officers like the Petitioner file

applications in the services’ BCMRs, complaining of this

type of error and requesting correction (voidance) of their

promotion passovers. Porter affects all of these cases.

Prior to Porter, a complaint of this type was governed

by Sanders, 594 F.2d 804, and its progeny. Under these

pre-Porter cases, requests for correction of a promotion

passover due to errors in an officer’s promotion board

records were considered to be meritorious if 1) the officer

showed that probable material error existed in his records, 2)

the officer showed that the error made his records look worse

than they would have without the error, and 3) the

government was unable to prove that the error was harmless

(i.e., that he would likely have not been promoted in any

event). Engels v. United States, 678 F.2d 173 (Ct. Cl. 1982);

Hary v. United States, 618 F.2d 704 (Ct. Cl. 1980). In such

meritorious cases, courts recognized a dual remedy.’ One

remedy was the correction (deletion) of the passover(s)

giving rise to the officer’s involuntary separation. Deletion

of passovers results in constructive reinstatement and back

pay in the officer’s current grade, based on officers’

substantive right under a pay-mandating statute to draw pay

* E.g., Sanders, 594 F.2d 804; Skinner v. U.S., 594 F.2d 824 (Ct. Cl.

1979); Riley v. U.S., 608 F.2d 441 (Ct. Cl. 1979) Engels v_U. S.. 678

F.2d 173; Hary v. U.S., 618 F.2d 704 (Ct. Cl. 1980), Grieg v_ USS.

640 F.2d 1261 (Ct. Cl. 1981); King v. U.S., 19 Cl. Ct. 703, aff'd per

curiam, 918 F.2d 186 (Fed. Cir. 1990); Muse v. U.S., 21 Cl. Ct. 592

(1990); Germano v. U.S., 26 Cl. Ct. 1446 (1992), (cited with approval

in 7 AL.R Fed 473 Supp. 4); Cunningham v. U.S., 39 Fed. Cl. 688

(1998); Wotowic-McGill v. U.S., 42 Fed. Cl. 318 (1998).

until properly separated. 37 U.S.C. § 204; Sanders, 594 F.2d

at 810.

A second (additional) remedy was promotion

reconsideration with a corrected record. This remedy has

been available since 1980 through special military selection

boards (SSBs) convened under 10 U.S.C. § 628. Prior to

1980, retrospective promotion reconsideration was provided

pursuant to the Service Secretaries’ implied authority. Doyle

v. United States, 599 F.2d 984, 1000 (Ct. Cl. 1979) (en

banc); see also Evensen v. United States, 654 F.2d 68 (Ct. Cl.

1981).

The duality of the historically-available remedy reflects

the fundamental principle that, even in an “up or out”

system, promotion and separation are separate and distinct

concepts. Sanders, 594 F.2d at 816 (improper to focus

attention on plaintiff s promotion rather than on the

propriety of plaintiff's separation).

The primary issue in this case is the continuing

viability of Sanders and the impact of Porter on officers’

substantive and procedural rights under 37 U.S.C. § 204 and

10 U.S.C. § 1552. Porter holds that the Sanders “harmless

error” standard, which has been the judicial standard in

promotion passover cases since 1979, has been defunct since

the passage of 10 U.S.C. § 628 (1980). App. 42. Under

Porter, the BCMR is permitted to defer a determination

whether to correct an officer’s promotion passovers until

after it convenes a military SSB.” In the event that the officer

is nonselected by an SSB, the SSB nonselection relates back

to and takes the place of the flawed non-selection by the

original board. App. 24-25. Porter is a landmark decision. It

is the first military pay case (apart from courts martial which

* Petitioner has no objection to the general proposition that a BCMR

may convene an SSB before considering whether to void an officer's

promotion passover.

are governed by an express statute) in which a new

proceeding or decision has related back to the date of the

original wrong. Cf. Sanders, 594 F. at 810 (promotion

passovers by specially convened promotion boards do not

relate back because of officers’ right to draw pay until

properly separated).

As a result of this relation-back, the question before the

BCMR is no longer focused on the officer’s original passover

because that has been superseded by the SSB passover.

Instead, the BCMR’s inquiry is whether the SSB was

defective under 10 U.S.C. § 628. In addition to shifting the

focus of the BCMR’s inquiry away from the original

selection board process to the SSB, Porter drastically changes

the standard for challenging both the original and the SSB

promotion passover.

Prior to Porter, the standard for the correction of a

promotion passover in the vast majority of cases was

“harmless error.” Sanders, 594 F.2d 804; see also 32 C.F.R.

§ 865.4 (1998) (Air Force); 32 C-F.R § 581.3 (1998)

(Army); 32 C.F.R. §723.3 (1998) (Navy). In a few military

pay cases, courts have found that the error was so

fundamental to the promotion process that it defied harmless

error analysis. Doyle, 599 F.2d 984, was one such case. In

Doyle, the en banc Court of Claims found that the Army’s

selection boards did not have the statutorily-required number

of reserve members. Finding that it had no way to assess the

impact of this error, the court held that the error was per se

harmful. The per se harm (or fundamental error) rule was,

until Porter, viewed as an exception to the harmless error rule

in military cases in the same way that a case like Sullivan v.

Louisiana, 508 U.S. 275 (1993) (absence of jury finding

precludes harmless error analysis) would be viewed as an

exception to the “harmless error” rule in criminal trials.

What Porter does is substitute the excepfion to the

harmless error rule for the harmless error rule itself. Thus,

officers are no longer entitled to deletions of their promotion

passovers upon a showing of “harmful error;” they must

show, instead, that there is no doubt about harmfulness’® or

that the error defies a harmless error analysis and, thus,

justifies a categorical finding of harm. '’ The equivalent in a

trial context would be if this Court overruled Kotteakos v.

United States, 328 U.S. 750 (1946), and required all aggneved

litigants to prove that the error in their trials was so egregious

that its effect could not or need not be weighed by the court.

The impact of Porter’s extraordinary “relation-back”’

doctrine and an msuperable “egregious error” standard is

three-fold. First, the relation-back of the SSB non-selection

to the date of the original board eliminates the principle that

active duty officers are entitled to be paid in their current

grade until properly separated. See Sanders, 594 F.2d at 810.

Second, the imposition of an insuperable standard for

corrections of promotion passovers effectively terminates

the traditional right to draw pay in one’s current grade.

When an officer has been separated due to errors in the way

that he was considered for promotion, he must obtain a

correction (or deletion) of his passovers in order to draw pay

'° In the Reply Brief for Defendant-Appeliant, Dec. 4, 1997, at 7 the Air

Force articulated the AFBCMR’s standard as follows: “If the AFBCMR

further discovers that the discovered ‘error’ is so egregious that it

undoubtedly resulted in the applicant’s initial non-selection (e.g.,

applicant's military record contained another officer’s disciplinary action

report), the board may sua sponte void the initial promotion non-

selections... .”

'' Porter also states that nothing prevents the AFBCMR from

considering “other material errors that might be involved in an SSB

consideration.” App. 41. In light of the Court’s holding that BCMR’s

may impose an “egregious error” standard for correction of a promotion

passover. this should not be read as meaning that the AFBCMR will

void a promotion passover in the event of material error.

Pr nl Biscay 0 Yea a ae 8 hs allt te tie a Ki “ ee eee

Mihi aid teenie abbas: I

under 37 U.S.C. § 204. See Mitchell v. United States, 930

F.2d 893 (Fed. Cir. 1991). In Sanders, the en banc Court of

Claims examined the issue whether it was an abuse of

discretion for the AFBCMR to apply a “but for” standard to

corrections of records. The Court held that such a standard

did constitute an abuse because, “It would be all but

impossible for a serviceman to prove he would have been

promoted but for defendant's error. Thus, the ultimate

burden should be on the party whose error and obfuscation

of the evidence caused the problem in the first place.” 594

F.2d at 816. The “egregious error” standard adopted in

Porter is subject to the very same objections as the “but for

standard. It is calculated to deny relief in meritorious cases

and to give the wrongdoing party (here, the Air Force) the

benefit of uncertainty in the proof process.

A third effect of Porter is that its insuperable standard

for correction forces the officer to pursue alternative relief

under 10 U.S.C. § 628. Section 628 authorizes Service

Secretaries to convene special selection boards composed of

military officers for the purpose of recommending officers

for promotion. Section 628 is, doubtless, a fine mechanism

for vindicating an officer’s (non)right to promotion. It 1s,

however, a very poor substitute for the traditional right to a

record correction in the BCMR.

The BCMR is composed of civilians who operate by

majority decision and whose votes are recorded. The

BCMR’s decisions must be supported with reasons and

must be supported by substantial evidence. They are also

subject to judicial review. The SSB, by contrast is military.

There is no majority consensus; the outcome is determined

mathematically from the members’ individual secret scores.

AFR 36-89 9] 35, 14. There is no possible review of its

substantive decisions because its deliberations are secret and

”

the members’ reasoning is private. Price v. United States, __

Fed. Cl. _ (93-536, Feb. 5, 1999).

Porter’s elimination of veterans’ nghts under 10 U.S.C.

§ 1552 results in a substantial deprivation for which Section

628 provides no recompense. The losses imposed by Porter,

however, do not fall entirely on servicemembers. They will

also fall on Congress.

Consistent with Congress’ intent to provide

servicemembers with meaningful civilian-directed relief,

decisions prior to Porter have emphasized the duty of

BCMRs to grant full and fair relief. As stated in Sanders,

Congress conferred broad powers on the Secretaries

to remedy errors and injustices. Congress, in so

doing, voluntarily and explicitly relinquished its

authority in this area and terminated servicemen's

access to Congress for correction of military records

by way of private bill. 2 U.S.C. § 190g. The

conjunction of these statutes implies that the

Secretaries have a duty as well as the power to

afford servicemen proper relief... . The Secretaries,

acting through correction boards, have the authority

and duty to correct records in order to correct an

error or remove an injustice and to pay money

found to be due when payment is necessary to

correct a particular error or injustice. We have

reviewed correction board actions in terms of the

liberal mandate of the statute to correct errors and

remove injustices, and failure to follow the purpose

of the statute has been remedied in this court, a

practice sanctioned by our decisions for over two

decades, with no complaint from Congress.

a Poa ts De bie me

594 F.2d at 812. This view was echoed in Yee v. United

States, 512 F.2d 1383, 1387 (Ct. Cl. 1975). "When a

correction board fails to correct an injustice [and/or an error]

clearly presented in the record before it, it is acting in

violation of its mandate." See also Skaradowski v. United

States, 471 F.2d 627, 628 (1973); Duhon v. United States,

461 F.2d 1278, 1281 (1972).

In Muse v. United States, 21 Cl. Ct. 592 (1990), an

Army officer met SSBs then subsequently pursued a back

pay remedy. In that case, the court correctly understood its

mandate:

What is absolutely critical here is that the correction

board comply with the admonition in Sanders which

emphatically provides that -".._ . where an

applicant has convinced a correction board to

correct his record it must not grant him ‘half-a-loaf'

of relief.” 219 Ct. Cl. at 301, 594 F.2d at 813

(citation omitted). Moreover, the Court of Claims

has repeatedly stated that "military correction

boards ‘have an abiding moral sanction to determine,

insofar as possible, the true nature of an alleged

[error or] injustice and to take steps to grant

thorough and fitting relief.” Yee, 206 Ct. Cl. at 398,

512 F.2d at 1387-1388, quoting Duhon, 198 Ct. Cl.

at 570, 461 F.2d at 1281; and Caddington v. United

States, 147 Ct. Cl. 629, 634, 178 F. Supp. 604

(1959), cited with approval in Sanders, 219 Ct. Cl.

at 301, 594 F.2d at 814. Thus, it is within the

bounds of the above-stated principles that we must

determine — whether the ABCMR acted arbitrarily,

capriciously ... .

21 Cl. Ct. at 603.

In contrast to the foregoing decisions, Porter did not

seem to weigh any of the detriments that would be borne by

veterans as a result of the decision; nor did it appear to give

any substantial weight to Congress’ intent under Sections

1552 and 190(g). Further, as the following will show, Porter

was based on a misreading of Section 628.

Il. Porter’s Construction of 10 U.S.C. § 628

Violates The Plain Language Rule

The linchpin of the Court of Appeals’ analysis is 10

U.S.C. § 628(b)(3). This subsection (identical in both the

old and new statute) provides:

If a special selection board convened under

paragraph (1) does not recommend for promotion a

person whose name was referred to it for

consideration, the person incurs no additional failure

of selection for promotion.

Infra, at 6-7. According to the Court, this passage means

that, unless an officer’s promotion passovers are voided

before an SSB is convened, an SSB non-selection relates back

in time to the date of the original proceeding. The

importance of this holding cannot be overstated. If an SSB

nonselection relates back (as opposed to simply having no

effect on the original non-selections), the officer must

challenge his SSB non-selection before he can assert any claim

based upon the errors in his original selection board. Thus,

under Porter, after an SSB is convened and the officer is non-

selected, the officer must show fwo things in order to obtain

back pay relief in his current grade. First, he must show that

his SSB non-selections were void under 10 U.S.C. § 628; then

he must establish that the AFBCMR’s initial decision not to

void his original promotion passovers was incorrect. If at

any time, an officer obtains new SSBs as a remedy for errors

in an earlier board, any non-selections by these new SSBs

will also relate back and extinguish the officer’s rights of pay.

Because of the above, Porter holds that after an officer

is non-selected by an SSB, the focus of his original request to

be reinstated because of errors in his original board

proceeding is whether the SSBs were valid under Section 628.

This is because, unless the officer can show that his SSBs are

void, his initial application for correction of his original

passovers is moot.

As the following will show, the Court’s construction of

Section 628(b)(3) and its conclusion that SSB nonselections

“relate back” is not supported by the plain language of the

Statute.

Statutes must be interpreted according to their plain

terms. Babbitt v_ Sweet Home Chapter of Communities for a

_ Greater Oregon, 515 U.S. 687, 697 (1995). The statutory

language of subsection (b)(3)--“incurs no additional failure of

selection” does not mean “incurs a failure of selection

which relates back to and.takes the place of the original non-

selection.” It means that the SSB nonselections will not be

added to any nonselections by the original board. Thus, if an

officer’s original passover has been voided, a subsequent SSB

non-selection will count (not retroactively, but as of the date

the SSB nonselection actually occurs). If an officer’s original

passover has not been voided, then the SSBs non-selection is

/ not incurred because it is an “additional failure of selection.”

| (if at a later date, however, the original passover were voided,

! the SSB non-seiection would no longer be “additional” and it

: would count.)

| The analytical process by which the Court of Appeals

reached its erroneous construction of Section 628(b)(3) is

reflected in the Court’s opinion and it, too, is erroneous.

First, the Court examined the legislative history of Section

628. One sentence stood out, which in the Court’s mind

meant that Congress intended for SSB non-selections to have

retroactive effect: “The purpose of this subsection is to

provide a means to make a reasonable determination as to

whether the officer would have been selected if his pertinent

records had been properly considered by the prior board,

unfettered by material error. H.R. Rep. No. 96-1462, at 74

(1980).” App. 24. The Court then looked to the statute for

confirmation of its view:

The retroactive nature of an SSB’s inquiry, as

suggested by this legislative history, is confirmed by

the text of section 628(b)(2), which specifies that an

SSB considers the record of the officer as his record,

if corrected, would have appeared to the board that

considered him [and passed him over]. Further, the

same statutory provision requires the SSB to

compare the officer’s record with a sampling of

records of officers selected and not selected for

promotion by the previous selection board. 10

U.S.C. § 628(b)(2). Even more evidence of the nunc

pro tunc nature of the SSB deliberation is found in

the provision that protects an officer passed over by

an SSB from any additional failure of selection for

promotion (unless, of course... the officer’s initial

passover is voided before his record is considered by

an SSB). 10 U.S.C. § 628(b\3). Finally, subsection

(d)(2) provides that the consequences of a selection

decision by an SSB relate back to the date of the

selection board decision that passed the officer over.

This subsection states that the officer who prevails

before an SSB shall have the same position on the

active duty list with the requisite pay and benefits

that accrue to the rank to which the officer is

promoted as a result of the SSB decision. 10 U.S.C.

§ 628(d)(2). As a whole, we think it is clear that

Congress intended: (1 ) an SSB’s decision to relate

back to the date of the original selection board’s

decision; and (2) for the SSB’s decision to stand in

place of the earlier selection board decision.

App. 24 (emphasis added). This analytical process is

backwards. In construing a statute, one must first examine

the plain language of the statute and determine its plain

meaning. One does not, through a process of eisegesis, begin

with the legislative history then seek confirmation of one’s

view of the legislative history in the statute. Darby v.

Cisneros, 509 U.S. 137, 147 (1993) (“Recourse to the

legislative history ... is unnecessary in light of the plain

meaning of the statutory text.”); Sharp v. United States, 27

Fed. Cl. 52, 59 (1992), citing Thompson v. Thompson, 484

U.S. 174, 191-92 (1988) (committee reports are not good

indicators of full legislature’s will).

The plain language of Section 628(b)(1) states that a

Secretary may convene an SSB for an officer “to determine

whether such officer should be recommended for promotion.”

In similar fashion, the new version of Section 628(b)(1) reads

that SSBs may be convened “to determine whether that

person (whether or not then on active duty) should be

recommended for promotion.” Accord, DoDD 1320.11 4 8

(1996) (Section 628 “specifically authorize[s] Special

Selection Boards for Promotion Purposes Only”); Id,

Definitions, $4 (“Special Selection Boards make select and

nonselect recommendations, as distinguished from providing

advisory opinions as to whether an officer would have been

selected had an officer been properly considered by the

original board.”)

Reading the statute first puts the legislative history in

its proper context. /n determining whether an officer

should be recommended for promotion by an SSB, “the

purpose of [subsection 628(b)] is to provide a means to

make a reasonable determination as to whether the officer

would have been selected if his pertinent records had been

properly considered by the prior board, unfettered by

material error.” In context, there is absolutely nothing in

the legislative history that would suggest a Congressional

intent to eliminate officers’ reinstatement remedies in the

BCMR.

When Section 628 is read as a promotion board

statute and without any assumption of a larger

Congressional purpose, it is apparent that Section

628(b)(3) is nothing more than a codification of the rule

already established in the courts at the time Section 628

was passed. Prior to Section 628, promotions resulting

from selections by specially convened promotion boards

related back to the date of the original board, just as in

Section 628(dX2). Doyle , 599 F.2d at 1000. The rule for

nonselections, however, was otherwise. Sanders, 594 F.2d

at 810 (promotion passovers by specially convened

promotion boards do not relate back because of officers’

right to draw pay until properly separated).

In sum, the statutory foundation for the Court of

Appeals’ analysis is faulty. The result is a decision that

cannot be sustained on any statutory ground. The sole

remaining argument of the Court of Appeals is its

discomfort with the “harmless error” standard. Properly

applied, however, the harmless error standard does not

impermissibly involve judges and civilians in military

affairs.

Ill. The Harmless Error Standard Does Not impermissibly

Involve Judges and Civilians in Military Matters.

It has long been established that courts do not involve

themselves in promotion decisions. This follows from a

long-standing command of the Supreme Court in Orloff v.

Willoughby, 345 U.S. 83, 93 (1953):

judges are not given the task of running the Army .. .

The military constitutes a specialized community

governed by a separate discipline from that of the

civilian. Orderly government requires that the

judiciary be as scrupulous not to interfere with

legitimate Army matters as the Army must be

scrupulous not to interfere in judicial matters.

On the other hand, judges are given the task of

adjudicating claims for loss of pay under 37 U.S.C. § 204 and

28 U.S.C. § 1491 when an officer alleges that he was illegally

separated. Sanders, 594 F.2d at 812.

The harmless error construct which is of concern to the

Porter Court is imposed for the benefit of the government to

prevent its having to pay money as a result of illegal conduct

that causes little or no harm. Because the burden of showing

harmlessness is placed on the military when the government

commits material errors or injustices, it is largely within the

military’s control to decide the extent to which it wishes to

invite civilian and judicial involvement in military matters.

By design, the “harmless error” test is designed to avoid

interference with military prerogatives. Sanders, 594 F.2d at

816 (improper to focus our attention on plaintiff's promotion

rather than on the propriety of plaintiff's separation”);

Skinner v. United States, 594 F.2d 824, 831 (Ct. Cl. 1979)

(“promotion reconsideration to determine whether errors

were harmless is inappropriate and nondispositive in an

illegal discharge case”), Evensen v_ United States, 654 F.2d

68, 74 (Ct. Cl. 1981) (where OER removed, no requirement

that promotion be certain before a passover can be voided).

The question is never whether an officer would have been

promoted. Rather, it is whether the officer would have been

competitive. Grieg v. United States, 640 F.2d 1261, 1265-66

(Ct. Cl. 1981) (officer in Riley v. United States, 608 F.2d 441

(Ct. Cl. 1979) entitled to reinstatement because “with th[e]

illegal OERs out of his file, [he] was in the competitive zone

for promotion.”). The military’s harmless error tule, in fact,

is very similar to standards that are applied by courts in

many other circumstances. See Mount Healthy City School

District Board of Education v. Doyle, 429 U.S. 274, 286

(1977) (a “borderline or marginal candidate should not have

the employment question resolved against him”), Kotteakos

v. United States, 328 U.S. 750, 765 (1946) (if error is such

that it would have “substantial influence” or if there is grave

doubt about effect of error, verdict must be set aside);

Cornelius v. Nutt, 472 U.S. 648, 659 n.9 (1985) (harmless

error standard in civil service cases analogous to Kotteakos.)

The ultimate issue in deciding the standard of proof is

where the risk of error should be placed. The approach

adopted by Porter requires veterans to cede their claims

because the government’s errors and injustice have created an

area of uncertainty which the government would rather not

resolve. This is not fair. To the extent that these

uncertainties cannot be resolved, the risks and burdens should

be borne by the wrongdoer.

Porter would not have been difficult to resolve had the

government complied with the lower court’s orders. The

government could have easily produced statistical evaluation

data showing whether the key features of his record put him

in the bottom 5% of his promotion class. The Air Force's

failure to adduce evidence in its possession should not be a

basis for reversing Petitioner’s judgment. Laningham v.

United States, 5 Cl. Ct. 146, 151 (1984) (it is appropriate to

entertain a presumption against the government when it fails

to produce available relevant evidence within its control.)

IV. The AFBCMR had no Discretion to Use an “Egregious

Error’ Standard Under Section 1552, Given the Super-

Competitiveness of Selection Board Scoring Procedures,

Furthermore, Before Upholding Discretion of AFBCMR to

Use an “Egregious Error” Standard Court Should Have

Resolved Authenticity and Legality of the Second

Addendum.

The Court of Appeals apparently believed that because

the Petitioner did not appeal his SSB nonselections under 10

U.S.C. § 628, the issue of supercompetitiveness was not in

the case. This was incorrect. The issue was briefed by the

Petitioner and by the Amicus Curiae because it bore upon the

Section 1552 issues that the government appealed. The

AFBCMR abused its discretion under Section 1552 when it

adopted an “egregious error” standard in the face of the Air

Force’s supercompetitive SSB standard. This exercise of its

discretion, among other things, violated the BCMR’s duty to

provide full relief. See Ray v. United States, 453 F.2d 754

(1972), Sanders, 594 F.2d at 813.”

Two aspects of the SSB’s procedures were found by

the Trial Court to produce a supercompetitive standard.

First, the government admitted in open court that the Air

" The constitutional basis as well as the legislative history for affording

full relief are discussed in Russell O. Wheeler, The Secretary of the Air

Force, Correction of Military Records and the Limits of Discretion, 7

Fed. Cir. Bar J. 193, 204-215 (1998).

Force’s promotion boards were divided into panels, that the

panels had variable quality and that the Air Force’s ability to

choose the best records from among the panels resulted in

SSB benchmark records that were better than the records of

officers promoted by the Board. App 170; App. 53. The

Trial Court concluded that this process of selecting

benchmark records was lawful under 10 U.S.C. § 628 because

subsection (b)(2) requires only that the officer’s record be

compared with “a sampling” of records from the original

board. While approving of supercompetitive SSB

benchmarks for purposes of Section 628, the Trial Court

found them to be an inappropriate tool for making “harmless

error” determinations under Section 1552. App. 92 n4.

The second point made by the Trial Court was that

AFR 36-89 § 35(d) creates a supercompetitive scoring

standard. This regulation provides that an applicant will be

selected “ if his or her record scores higher than all the

nonselect records and ties at least one of the selected records

from the original board.” This rule increases the difficulty of

selection by an SSB, especially if there is an inversion of

select and non-select benchmarks.

For example, if the original panel selected candidates ]

through 5 and non-selected candidates 6 through 10 and the

SSB panel agreed with the select and non-select outcomes of

the original panel, the applicant would need only to tie the

fifth best record in order to be recommended for promotion

by the SSB. If, on the other hand, the cumulative scores of

the SSB differed from those of the original panel and ranked,

say, candidate 6 above candidate 5, the applicant would be

required to be ranked above candidate 6 in order to be

selected (i.e., the applicant would have to be at least tied

with the fourth-ranked benchmark in order to be

recommended for promotion by the SSB as opposed to tying

with the fifth-ranked benchmark in the example above). In

the same vein, if candidate 6 from the original board panel

received an odd high score from one of the SSB members and

was ranked first on the SSB’s order of merit, the applicant

would be non-selected--even if he tied with the top-sconing

record and was ranked higher than al! of the benchmark

selects. This would be the case even if the majority of the

members of the SSB individually believed that the applicant

was the best qualified of the entire field because AFR 36-89

is a mathematical formula that is not altered by any board

member vote.

The government responded to these matters in the

Second Addendum, a purported record of administrative

proceedings that was created after the government lost to

Petitioner. App. 115 (see also lodging with the Clerk).

Petitioner challenged this Second Addendum in the Court of

Appeals on the ground that it had at least a dozen

irregularities indicating that it was not actually a product of

the AFBCMR. App. 148-187 In October 1998, Congress

passed two laws aimed at the misconduct alleged in

Petitioner’s remand motion. 10 U.S.C. §§ 1555, 1556.

The Court of Appeals never addressed the propriety of

relying on the facts of the Second Addendum and instead

gave assurances that it did not “defer” to the legal positions

stated therein. App. 47. It did rely, however, when it

stated:

As the Air Board’s [AFBCMR’s] Second

Addendum demonstrated, the Air Board was

capable of deciding Porter’s procedural challenge

without having to decide whether Porter was or

was not better qualified for promotion than the

officers selected and not selected by the CY84B

and CY85A captain promotion boards. Instead, as

the Air Board noted, Porter’s allegation of the

SSB’s use of impermissible competitive standards

failed for lack of factual support, because of other

factual information in the record that undercut

Porter’s claim that an impermissible

supercompetitive standard had been applied to

him.

The foregoing responds to Porter’s argument that

the Air Board abdicates its statutory duties under

section 1552 by recommending invocation of an

SSB without coupling the SSB recommendation

with a voidance of previous passover decisions.

App. 45.

With the exception of the SSB benchmark records

which are under seal, the administrative record of the 1995

AFBCMR proceeding is included in foto at App. 115-147.

From this it is clear that there is zero evidentiary support for

the Second Addendum’s findings regarding super-

competitiveness. In short, the Second Addendum itself is the

only evidence in the administrative record supporting the Air

Force position on that subject. As such, the Second

Addendum hardly provided Petitioner with the process he

was entitled to receive under Section 1552.

In the event that the outcome of this case turns on the

AFBCMR’s discretion to use an “egregious error” standard

or on the existence of supercompetitive procedures,

Petitioner submits that the government must not be

permitted to defend its position based on a fraudulent record.

Either the Second Addendum must be removed from the case

or its authenticity and legality must be established.

Conclusion

For the foregoing reasons, certioran should be granted.

Respectfully submitted,

Ayt

Guy Ferrante

King & Everhard, PC

450 W. Broad Street, Ste. 112

Falls Church, VA 22046

(703) 241-8282

Counsel for Petitioner

April 20, 1999

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