# Petition for Writ of Certiorari — Porter v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 809

## Text

Supreme Court, U.S.
| a | ' > ry

Bs1i6s9 wPR 209 1999

No. 99- OFFICE OF THE CLERK

cc

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

eT

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

NRE etna te SNe AL OE CES TEE ane A
Statutes | Page

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BF Oe les 0 i inuiissatsinsersdewtishintepaidincesimenienenmmncaninat 20

RF Ge Oe i itdstinitnnatnnesiiiaaionnnstcemammeans 20

Regulations Page
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ee ee ee eiissinnsisissiseudhcnbicsicccndedensaiato acon 2, a3
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Se Se I iscvancoivivcisssncmcaraveaenncticmeene 10, 31
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Fe ee iin hoerinsentsncaaticisneateceiersiouiailamenian 12
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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

‘
oe

GREGORY C. PORTER, Petitioner,
v.

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).

2

.

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.

(c) The Secretary concerned may pay, from
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;

or

(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).

(c) SSBs will use the scoring procedures outlined in
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.

11

- 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

13

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(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.

(c) Findings, Decisions, and Recommendations.
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.

14

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

15

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.

16

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.

17

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.

18

.
8
)
;
8

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

19

‘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.

20

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).

21

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.

24

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

Mihi aid teenie abbas: I

|

|

|
1

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

28

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

29

=

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

30

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

31

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.

a

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

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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

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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).

35

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

36

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

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1300%3A1. Public record. Not legal advice.