Appendix — Porter v. United States

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In The Supreme Court of the United States

OCTOBER TERM, 1999

GREGORY C. PORTER, Petitioner,

—

UNITED STATES, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Guy J. FERRANTE

(Counsel of Record)

KING & EVERHARD, P.C

Suite 112

450 W. Broad Street

Falls Church, Virginia 22046

Of Counsel: (703) 241-8282

KATHLEEN J. ST. JOHN Counsel for Petitioner

KANE ST. JOHN

2900 Delk Road

Suite 700-306

Marietta, Georgia 30067

(770) 850-1175

Order of the Court of Appeals (November 9, 1998) 1

Order denying rehearing (January 20, 1999)... . 48

Order of the Court of Federal Claims

(ipecemmper SO, 1992)... ce ccc e eee 50

Order of the Court of Federal Claims

(0) | | 84

Order of the Court of Federal Claims

(December 30, 1994)...................... 95

Order of the Court of Federal Claims

ee ee eo oa De 100

Record of Proceedings of the AFBCMR

i eer Ca eT a ee 109

Second Addendum to Record of Proceedings

of the AFBCMR (January 11, 1995).......... 115

Letter from Maj. Carla S. Walgenbach to

Mr. Mac Burton (December 1, 1994)......... 135

Memorandum from Lt. Col. Sharon A. Branch

for AFBCMR (December 19, 1994).......... 139

Memorandum of Instructions: Special

Selection Boards Promotion And

Selective Continuation (November 15, 1993)... 141

Letter from Raymond H. Weller to

Gregory Porter (December 12, 1994). ....... 147

Petitioner’s Conditional Motion for Remand

Filed in the Court of Appeals

i gf A. . ) Bese a ren eee 148

Declaration of Larry W. Neptune

gg Ah... Siem Bo Wes a iba Reet nae 157

Supplemental Declaration of Larry W. Neptune

I I a ee ee ee eae, ots 160

Talking Paper on Selecting Benchmark

Records (January 7, 1984) ................ 168

Partial Transcript of Hearing in the Court of

UII oo coe hy vos ec owe ve vncns 170

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

97-5007

GREGORY C. PORTER,

Plaintiff- Appellee,

THE UNITED STATES,

Defendant- Appellant.

COUNSEL: Kathleen J. St. John, of Marietta, Georgia,

argued for plaintiff-appellee. Of counsel on the brief were

Kane St. John; and ll O. Wheeler, of Oklahoma City,

Oklahoma.

Armando O. Bonilla, Attorney, Commercial Litigation

Branch, Civil Division, U.S. Department of Justice, of

Washington, DC, argued for defendant-appellant. With him

on the brief were Frank W. Hunger, Assistant Attorney

General, David M. Cohen, Director, and James M. Kinsella.

Assistant Director. Of counsel on the brief were Lt. Col.

ven J. Pecinovsky and Major Joginder Dhillon, General

Litigation Division, United States Air Force, of Arlington,

Virginia. Also of counsel was _ Porter, pro se

plaintiff-appellant.

Kathleen J. St. John, of Marietta, Georgia amicus curiae for

Guy Ferrante.

Appealed from: United States Court of Federal Claims

Judge Diane Gilbert Weinstein

DECIDED: November 9, 1998

Before MICHEL, CLEVENGER, and BRYSON,

CLEVENGER, Circuit Judge

This appeal presents questions of first impression relating to

the authority and duty of civilian boards for the correction of

military records. The case involves the Air Force Board for

the Correction of Military Records ("Air Board" or

"AFBCMR"). The plaintiff and appellee, Gregory C. Porter,

was twice passed over, in 1984 and 1985, for promotion to

captain in the Air Force, and was honorably but involuntarily

discharged in May 1985 under the statutory "up or out" rule.

Thinking his initial passover to be the result of a faulty

Officer Effectiveness Report ("OER"), Porter applied to the

Air Board for correction of his record to exclude the

challenged OER from his record, and te be considered again

for promotion by another officer selection board. Before the

Air Board acted on his application, Porter was passed over

for promotion a second time in 1985. The Air Board agreed

with Porter that his record contained a faulty OER, and

recommended to the Secretary of the Air Force that he be

considered for promotion again by Special Selection Boards

("SSBs") convened under the authority set forth in 10 U.S.C.

§ 628 (1994), on his corrected record. The Air Board,

however, did not recommend that Porter's previous passovers

be voided. Such a recommendation would have removed the

legal basis for Porter's 1985 discharge, resulting in

constructive if not actual reinstatement to his pre-discharge

rank of first lieutenant and entitlement to back pay and

related benefits. The Air Board's unwillingness to make such

a recommendation frames the issue for decision in this

appeal.

Porter argues that the Air Board lacks the authontty to refer

his record to an SSB under 10 U.S.C § 628 unless it also

recommends that his previous passovers be voided, thus

vacating his discharge and entitling him to back pay and

related benefits. He bases his argument on his reading of

section 628 and on holdings of our predecessor court, the

United States Court of Claims, in cases governing the actions

of civilian boards for the correction of military records taken

at a time before SSBs were created and available to

participate in the process of correction of military records

Porter argues that under those holdings the Air Board's

recommendation that his record be presented to selection

boards constitutes an implicit voidance of his two initial

passovers and discharge.

The government argues to the contrary that the Air Board is

not required by statute or case law to void initial passovers

before recommending consideration by an SSB in every

instance, and that no error lies in the Air Board's

refusal to void Porter's passovers before recommending his

assessment by SSBs. The government takes a more flexible

view of the Air Board's powers, under its Statutory charter,

10 U.S.C. § 1552 (1994), and under section 628. The

government argues that, depending on the circumstances of a

given case, the Air Board may correct such records as it

deems necessary when recommending that an SSB be

convened to replicate the work of the original selection

boards that twice passed over a discharged officer. In some

instances, such correction may involve voiding the initial

passovers, and in other instances the recommended

corrections may entail only correction of the record that was

laid before the original selection boards. The government

ee ee

argues that the pre-section 628 case law of our predecessor

court is inapplicable to the Air Board's authority to

recommend referral of a discharged officer's record to an

SSB

After extended litigation before the Air Board and the United

States Court of Federal Claims, the Court of Federal Claims

agreed with Porter's arguments. It held that the Air Board

acted arbitrarily when it referred Porter's case to SSBs

without also voiding his initial passovers, with the stated

consequences of entitlement to back pay and related benefits

See Porter v. United States, No. 91-1008C (Fed. Cl. May 24

& Aug. 6, 1996). The government brings this appeal, over

which we have jurisdiction pursuant to 28 U.S.C. §

1295(a)(3) (1994). Because only questions of law are before

us, we exercise Our review authority independent of the

views of the Court of Federal Claims. See Columbia Gas

Sys., Inc. v. United States, 70 F.3d 1244, 1246 (Fed. Cir.

1995).

As is evident from the foregoing and will become more so

from the following, the technical aspects of this case and of

the underpinnings of our predecessor court's holdings are

complex. The core questions for decision, however, are

simple: must the Air Board in every instance couple a

recommendation to convene an SSB with voidance of

previous passovers, and, if not, was the Air Board's

recommendation in Porter's case to convene an SSB without

voiding his two previous passovers arbitrary, capricious,

unsupported by substantial evidence or contrary to law?

Essentially in agreement with the government's arguments in

this appeal, we hold that the Court of Federal Claims erred in

its assessment of the legal authority of the Air Board.

Because the Air Board was authorized to correct Porter's

record and recommend use of SSBs to consider Porter's

promotion prospects in light of the corrections without also

recommending voidance of Porter's previous discharge-

mandating passovers, Porter is not entitled to back pay and

related benefits. His discharge in 1985 was lawful

Porter entered active duty with the Air Force in 1981] and

was honorably, but involuntarily, discharged in 1985 under

the military's "up or out" requirements after he was passed

over twice for promotion from reserve first lieutenant to

captain. See 10 U.S.C. § § 627, 631 (1994), Air Force Reg.

36-12 (Oct. 1, 1984). Porter's first passover occurred before

the Calendar Year 1984 B ("CY84B") Captain promotion

board. His second passover resulted from deliberations by

the Calendar Year 1985 A ("CY85A") Captain promotion

board. Porter contested both passovers to the Air Board. The

Air Board determined that a January 1984 OER had unfairly

underrated Porter's promotion potential. The Air Board thus

recommended to the Secretary of the Air Force that the OER

be voided and that two SSBs (for each of the CY84B and

CY85A captain promotion boards) convene to reconsider

Porter for promotion. The Assistant Secretary of the Air

Force, on behalf of the Secretary, accepted the Air Board's

recommendation. The SSBs convened in March 1986 and

determined that Porter would not have been promoted by

either original promotion board even with the corrected

records.

In 1988, Porter again applied to the Air Board for the

correction of his records, alleging that the removal of the

erroneous January 1984 OER had created a prejudicial gap in

his record, that his duty titles had been incorrectly listed on

some of his reports, and that a 1984 Letter of Evaluation

("LOE") attached to a November 1984 OER and written by

the same reviewer as the January 1984 OER, repeated the

substance of the January 1984 OER and perpetuated its

negative effect. He also questioned whether his records had

been properly compared to those of other officers during the

review process. For relief, Porter sought "reinstatement" at

the rank of captain, with back pay and allowances at that

rank. The Air Board denied his application and his

subsequent request for reconsideration after concluding that

the SSBs had not acted improperly.

Porter began what became an extensive litigation before the

Court of Federal Claims when he filed a pro se complaint in

1991 that repeated the substance of his allegations before the

Air Board and sought back pay and various damages. On the

government's motion for summary judgment, the court

determined that the gap in Porter's record created by the

missing 1984 OER was adequately cured by a letter

explaining the gap to the SSBs. See Porter v. United States,

No. 91-1008C, slip op. at 12 (Fed. Cl. Dec. 30, 1992).

However, the court also determined that the 1984 LOE

contained errors that were equal in significance and

materiality to the errors of the voided OER, that Porter's job

history was incorrectly reflected in his records and operated

to his disadvantage, and that the government did not rebut

several of Porter's allegations regarding procedural errors

before the SSBs. Id. at 14-26. Deferring to the Air Board, the

court declined to order back pay, and instead remanded the

case. Id. at 27. The court directed the Air Board to reconsider

Porter's case and determine whether the 1984 LOE and the

misstated duty titles constituted a significant error or

injustice, and, if so, whether the errors were harmless

because Porter would not have been promoted even with the

errors corrected. Id. at 27-28, 30. In particular, the court

stated that:

If, on remand, the AFBCMR determines that there

were one or more significant errors in the records

before the SSB, it shall make whatever

recommendations to the Secretary it deems

appropriate, including reinstatement, back pay,

correction of records (including, but not limited to,

voiding the SSB decisions), and another Opportunity

to be considered by an SSB sitting for the CY 84B

and CY 85A selection boards.

Id. at 31.

On remand, the Air Board concluded that the misstated duty

titles should be corrected and the LOE should be removed

from Porter's record. Because the "recommended corrections

will materially change the applicant's record," the Air Board

recommended that Porter be again considered by two SSBs

in place of the original CY84B and CY85A Captain

promotion boards. However, the Air Board concluded that

insufficient evidence had been presented to "demonstrate the

existence of probable error or injustice in regard to

applicant's request for promotion," and that

[i]t cannot be conclusively determined whether or not

applicant would have been selected for promotion by

the selection boards in question. We believe a duly

constituted SSB applying the appropriate promotion

criteria is in the most advantageous position to render

this determination. We believe applicant's record, to

include the above recommended corrections, can

receive a fair and equitable consideration for

promotion by the SSB process. Therefore, we do not

recommend favorable action on his request for

promotion.

In essence, the Air Board, composed entirely of civilians, did

not consider itself bound to decide the relative merits of

Porter's promotion prospects. Instead, it viewed an SSB--

composed entirely of military officers--as better qualified to

compare Porter's corrected record to the benchmark records

that define the promotion threshold of the Original selection

board. In response to the Air Board's recommendation, the

Secretary's designee then ordered that Porter's record, as

corrected, be considered again by the two SSBs, acting in

lieu of the CY84B and CY85A captain promotion boards.

Those SSBs met in November 1993 and both recommended

that Porter not be promoted

The case returned to the Court of Federal Claims on cross-

motions for summary judgnient. The government asserted

that the decisions of the 1993 SSBs show a lack of nexus

between the errors that had been corrected in Porter's records

and the previous passover decisions: because the 1993 SSBs

passed over Porter even on the corrected records, the

government asserted that the errors before the earlier

selection boards must be harmless. In addition, the

government asserted that the 1993 SSBs suffered no defects.

Porter's cross-motion alleged that a nexus indeed existed

between the errors before the 1986 SSBs and their decisions,

and that the 1993 SSBs committed three procedural errors.

See Porter v. United States, No. 91-1008C, slip op. at 3 (Fed.

Cl. Oct. 31, 1994), as clarified, No. 91-1008C (Fed. Cl. Dec

30, 1994).

On the cross-motions, the court ruled that there was no

evidence that the 1993 SSBs had acted improperly with

regard to two of Porter's alleged procedural errors. Id. at 4-5.

As to whether the 1993 SSB proceedings contained

inadequate benchmark records that were improperly

rescored, as Porter alleged, the court remanded the case once

again to the Air Board. The Air Board was ordered to review

the full record before the 1993 SSBs to ensure that Porter's

nonselections were not arbitrary, capricious, unsupported by

substantial evidence, or legally erroneous. Id. at 9. In

addition, the court determined that the Air Board had

impermissibly given the 1993 SSBs the power to determine

whether the flawed data before the 1986 SSBs amounted to

harmless error, rather than making that determination itself

before recommending that the 1993 SSBs decide anew

whether Porter should have been promoted. See id. at 7-8

The court determined that the Air Board. by referring

Porter's case to the SSBs, necessarily voided the original

selection boards’ passovers and thereby constructively

reinstated Porter, thus entitling him to back pay. See id The

court therefore ordered that Porter's records be corrected to

show reinstatement as of the day of his discharge in 1985

and entitlement to back pay until he is deemed passed over

twice by lawful process and lawfully discharged. Id. at 9. In

reaching its conclusion, the court took its direction from a

series of Court of Claims cases involving actions by civilian

corrections boards that predated the enactment of 10 U.S.C.

§ 628. The cases relied on by the court in the December 1992

and October 1994 decisions, as chronologically decided. are

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

Cl. 1979); Doyle v. United States, 220 Ct. Cl. 285, 599 F.2d

984 (Ct. Cl. 1979), Hary v. United States, 223 Ct. Cl. 10. 618

F.2d 704 (Ct. Cl. 1980); Evensen v. United States, 228 Ct.

Cl. 207, 654 F.2d 68 (Ct. Cl. 1981); and Engels v. United

States, 230 Ct. Cl. 465, 678 F.2d 173 (Ct. Cl. 1982).

The government moved promptly for clarification of the

court's October 31, 1994, order, asserting that it would be

improper to order Porter's reinstatement in light of the two

passover decisions by the 1993 SSBs that were still in effect,

although these decisions remained subject to review by the

Air Board for potential procedural flaws pursuant to the

court's remand order. In response, the court revised its order,

as follows:

The AFBCMR having failed to do so explicitly,

either in 1993 when it vacated the 1986 SSBs'

passovers, or in 1985 when it vacated the CY 84B

and CY 85A selection boards’ passovers, the court

assumes that Mr. Porter's records have been corrected

constructively to show reinstatement in active duty at

the rank of first lieutenant as of August 31, 1985, up

until at least six months after his second passover by

the 1993 SSB, see 10 U.S.C. § 631(a)91), (and

longer if the 1993 SSBs' decisions are voided by the

Secretary at the recommendation of the AFBCMR, or

by this court). The court also assumes that, as the

result of such constructive duty, Mr. Porter is entitled

to back pay for that period, calculated in accordance

with law. If the AFBCMR declines to recognize

plaintiff's entitlement to such correction or benefits,

the court will exercise its own authority to do so.

Porter v. United States, No. 91-1008C, slip op. at 4 (Fed. Cl.

Oct. 31, 1994), as clarified, No. 91-1008C (Fed. Cl. Dec. 30,

1994). The court thus introduced a legal fiction to the record

that Porter's initial two passovers had been voided, when in

fact the record clearly reflects the Air Board's refusal to

recommend that correction to Porter's record.

On the second remand, the Air Board found that the 1993

SSBs had acted correctly and had not reversibly erred in

determining that Porter would not have been promoted by

the earlier review boards. The Air Board's conclusions are

set forth in a document denominated as "Second Addendum

to Record of Proceedings" that details the proceedings at a

meeting of the Air Board held on January 11, 1995, when

Porter's request for correction of his records was denied.

In particular, the Air Board rejected the court's assumption in

its amended order of December 30, 1994, that the Air Board

had previously corrected Porter's records to vacate the earlier

passovers and had thus constructively reinstated Porter to

active duty with the right to pay. The Air Board explained its

position in detail and at length. The heart of the Air Board

view is its assertion that the cases relied upon by the court to

support its assumed correction of Porter's record have no

bearing on a recommendation by the Air Board that an SSB

be convened to assess whether an officer should be

promoted.

The Air Board explained its view that the statute creating

SSBs, 10 U.S.C. § 628 (1994), altered the analytic process

by which the Air Board had previously determined whether

an officer's records should be corrected to show a

recommendation of some promotion. According to the Air

Board, nothing in the law prevented it from recommending

correction of Porter's record and submission of the corrected

record to an SSB without also recommending voidance of his

previous passovers, constructive reinstatement and

entitlement to back pay. In short, the Air Board asserted the

right to recommend further assessment of Porter's

qualification for promotion by an SSB without the Air Board

itself first making a determination that the errors requiring

correction were in fact not harmless to the nonselection

decision of a previous selection board. At bottom, the Air

Board asserted in the Second Addendum that it was not

obligated to conduct the harmless error analysis prescribed

by the Court of Federal Claim in its December 30, 1992,

order. Although the harmless error test was designed to

determine the relative merits for promotion of one officer

(here, Porter) over other officers (both those selected and

nonselected by the original selection boards), the Air Board

had previously determined, in response to the December 30

order, that, in this particular case, it was unable to decide

those relative merits on the basis of his corrected record To

the mind of the civilian corrections board, that decision

would better be made by military personnel applying the

appropriate selection criteria.

To the extent that the government lawyers appearing before

the Court of Federal Claims had previously pitched their case

in terms of whether the Air Board had in fact found the

errors in Porter's record to be harmless, the Second

Addendum made clear that the Air Board did not feel

constrained in this case to apply the harmless error test. The

legal theory on which the Air Board was proceeding was that

the harmless error test, derived from pre-section 628 case

law, is inapplicable to Porter's case. The Air Board also

responded to the remand order from the Court of Federal

Claims directing the Air Board to decide the merits of

Porter's contention of material procedural error concerning

benchmarks used by the 1993 SSBs in scoring the pertinent

officer records. As Porter understood the contents of the

benchmarks used by the 1993 SSBs, his record was better

than one of the records of an officer who had been selected

by the CY85A captain promotion board. Thus, according to

Porter, the 1993 SSB in essence imposed a

"supercompetitive” standard, requiring him to outperform a

selected officer, as opposed to simply matching the score of

a selected officer.

The Air Board initially resisted this remand order on the

ground that it might compel it to make a comparative

decision as to which candidates were better qualified for

promotion, a matter that the Air Board thought was better

suited to an SSB decision. The Air Board nevertheless

assessed Porter's contention. Even though Porter's record

scored better than one of the officers selected by the CY85A

captain promotion board, the other attributes of the selected

captain's record demonstrated that Porter's record was overall

less competitive. The Air Board found that there was "a

clear distinction between the quality of the applicant's

records and the quality of the benchmark records of the

selectees and nonselectees from the original selection

boards." The Air Board thus concluded that the procedural

error cited by Porter did not undermine the 1993 SSB

decision that Porter would have been passed over by the

CY85A captain promotion board had his corrected record

been before it in the first instance.

The case again returned to the Court of Federal Claims. After

briefing and oral argument, the court agreed that the

decisions of the 1993 SSBs contained no reversible error

See Porter v. United States, No. 91-1008C, slip op. at 7 (Fed

Cl. May 24, 1996). With regard to Porter's contention of

procedural error due to improper benchmarks and scoring,

the court concluded that "plaintiff's record is not Clearly

equal or superior to any of the benchmark records of officers

selection [sic, selected] for promotion." Id. However, the

court rejected the government's view of the Air Board's

authority (as set forth in the Second Addendum) to

recommend use of SSBs without also voiding previous

passovers and the government's argument that pre-section

628 case law is inapplicable to this case. Id. at 6-7. The court

again held that the Air Board's referral of Porter's case to the

SSBs entitled him to back pay, because "referring an

applicant to an SSB necessarily implies that at least one of

his or her passovers was invalid, and an officer without two

valid passovers cannot be discharged." Id. at 6 (emphasis in

onginal). The court concluded that Porter had constructively

served until the 1993 SSBs properly removed him, and that

he should receive back pay for the period from his original

discharge until his discharge following the nonselection

decisions of the 1993 SSBs. Id. at 7.

The government appeals, arguing that the Air Board never

reinstated Porter and never was obligated to do so, either

actually or constructively, and, as a result, Porter is not

entitled to back pay. For his part, Porter supports the analysis

of the Court of Federal Claims and does not argue On appeal

that the decisions of the 1993 SSBs are infected with error.

This appeal raises questions of Statutory interpretation of the

law that provides for the creation and empowerment of

civilian boards for the correction of military records, 10

U.S.C. § 1552 (1994), and the law that provides for the

creation and operation of SSBs, 10 U.S.C. § 628 (1994).

Those questions must be decided in the context of a body of

law, developed by the Court of Claims before the enactment

of section 628, that established rules for determination of

whether an officer's involuntary discharge after two

passovers was proper.

Ill

Section 1552 of title 10 gives the military secretaries power

to correct military records using civilian boards. It reads, in

relevant part:

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

correct 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) [dealing with enlistment

and promotion of enlisted soldiers] 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. § 1552 (1994). Each military department has

issued regulations that govern the operation and procedures

of its board for the correction of military records. In the

instance of the Air Force, the pertinent regulation is 36-2603,

Air Force Board for Correction of Military Records, (Mar. 1,

1996) (codified as 32 C.F.R. § 865 (1997)). The Air Force

also publishes Air Force Pamphlet 36-2607, entitled

"Applicant's Guide to the AFBCMR," to provide information

on the corrections process to applicants. 32 C.F.R. §

865.3(b).

Section 1552 does not limit the kind of military record

subject to correction. Consequently, a corrections board may

entertain any kind of application for correction. ranging from

changing the terms of a discharge, see Faircloth v._ United

States, 186 Ct. Cl. 133 (1968), to correction of error in

citation of awards received, see Swann v_ Garrett, 811 F

Supp. 1336 (N.D. Ind. 1992), to amending the records of

Porter in this case, which include OERs, passover (or

nonselect) decisions by promotion boards and SSBs. and

discharge orders. Sheer volume of applications-

approximately 5000 applications per year in the instance of

the Air Board-suggests the wide range of subject matter

embraced in the applications.

In the Air Force, the Air Board acts for the Secretary and its

decision is final when it denies applications, except in the

case of applications to correct records based on allegations of

whistleblowing conduct protected by 10 U.S.C. § 1034

(1994). In whistleblower cases and all other cases involving

favorable recommendations on applications, including

recommendations that an officer be promoted, the Secretary

of the Air Force acts as the final decisional authority. See 32

C.F.R. § 865.4(p). Therefore, in this case, the decisions by

the Air Board denying Porter's application to void his various

Passovers stood as final decisions, whereas the Air Board's

decision to grant his application to correct certain OERs was

a recommendation upon which the Secretary, through his

delegate, was required to and did act.

When the issue at hand is whether an officer has properly

been discharged pursuant to the "up or out" rule, the record

before the selection boards that passed over the officer, and

the legality of action of those boards, both in their

composition and procedural operation, become the focus of

attention.

The fundamental ground rule is that

the selection procedure must follow the law. The

documents which are sent to a Selection Board for its

consideration therefore must be substantially

complete, and must fairly portray the officer's record.

If a Service Secretary places before the Board an

alleged officer's record filled with prejudicial

information and omits documents equally pertinent

which might have mitigated the adverse impact of the

prejudicial information, then the record is not

complete, and it is before the Selection Board in a

way other than as the statute prescribes.

Weiss v. United States, 187 Ct. Cl. 1, 408 F.2d 416, 419 (Ct.

Cl. 1969). Consequently, the law requires that another

selection board be presented with a substantially complete

and fair record. See Sanders v. United States, 219 Ct. Cl.

285, 594 F.2d 804, 814 (Ct. Cl. 1979). When called upon to

review a decision of a corrections board, or of a Secretary

taken upon recommendation from 2 corrections board, the

standard of review is whether the decision is arbitrary,

capricious, unsupported by substantial evidence or contrary

to law. See Skinner v. United States, 219 Ct. Cl. 322, 594

F.2d 824 (Ct. Cl. 1979).

Thus, another way to state the issue before us is whether the

decision of the Secretary, upon recommendation of the Air

Board, to void Porter's January 1984 OER without voiding

Porter's passovers can withstand the standard of review.

The second statutory provision central to this case, section

628 of title 10, is entitled "Special Selection Boards" and

permits the Secretaries to convene SSBs. The statute was

enacted as part of the Defense Officer Personnel

Management Act in 1980 ("DOPMA"). It reads, in full:

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

promotion who the Secretary of the military

department concerned determines was not considered

for selection for promotion by a selection board

because of administrative error, the Secretary

concerned, under regulations prescribed by the

Secretary of Defense, shall convene a special

selection board under this subsection ( composed in

accordance with section 612 of this title or, in the

case of a warrant officer, composed in accordance

with section 573 of this title and regulations

prescribed by the Secretary of the military

department concerned) to determine whether such

officer should be recommended for promotion.

(2) A special selection board convened under

paragraph (1) shall consider the record of the officer

as his record would have appeared to the board that

should have considered him. That record shall be

compared with a sampling of the records 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 should have considered him.

(3) If a special selection board convened under

paragraph (1) does not recommend for promotion an

officer in a grade below the grade of colonel or, in

the case of an officer of the Navy, captain whose

name was referred to it for consideration, the officer

shall be considered to have failed of selection for

promotion.

(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--

the action of the board which considered the officer

was contrary to law or involved material error of fact

or material administrative error, or 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 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.

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 recommerdation 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.

(¢) The provisions of section 613 of this title apply to

members of special selection boards convened under

this section.

10 U.S.C. § 628 (1994). We quote the entirety of section 628

to demonstrate the significance of SSBs to the full panorama

of cases that entail material flaws in the military promotion

process.

Before DOPMA, the military departments lacked access to

any statutory special selection boards to make promotion or

passover decisions when original selection boards had passed

over an officer in circumstances in which the officer's record

before the original boards contained faulty OERs. At that

time, Standby Advisory Boards "(STABs") existed by virtue

of military department regulation. From time to time, a

civilian correction board, or the department itself, would

send an officer's record to a STAB for consideration after

initial passovers. Sometimes, the STAB was convened to

replicate, or act in lieu of, the original selection board. See

Evensen v. United States, 228 Ct. Cl. 207, 654 F.2d 68 (Ct.

Cl. 1981). Other times, the STAB was convened to render an

advisory opinion to the civilian correction board on the

officer's likelihood of promotion based on his corrected

record. See Braddock v. United States, 9 Cl. Ct. 463 (1986).

STABs, however, could only make recommendations on

promotion matters. They, unlike SSBs, did not make the

final military decision whether [or] not to promote an officer.

DOPMA was the first major revision of military officer

personnel law since the Officer Personnel Act of 1974. See

D. Bent, "DOPMA: An Initial Review," Army Lawyer, April

1981, p. 3. The most significant feature of this 121-page act,

Pub. L. No. 96-513, 94 Stat. 2835, was its rejection of the

dual promotion system under which the regular and reserve

components of each military service had separate statutory

promotion systems, and the elimination of separate

provisions for permanent and temporary promotions. Other

important provisions changed the timing pursuant to which

officers would be considered for promotion and altered

conditions that require discharge of officers who are not

selected for promotion. Shortly after enactment, the

legislation was described in the publication Army Lawyer as

"a highly complex, multi-faceted piece of legislation [that]

will impact upon the officer corps in a wide variety of ways .

_.." Bent, supra, at 16.

The legislative history of DOPMA is extensive and detailed

concerning the major features of the Act. With regard to

section 628, however, there is but a single brief reference in

the legislative history. Furthermore, since its enactment in

1980, section 628 has not been interpreted or applied to a

twice passed-over officer by this court or its predecessor. In

addition, although the conduct of the Air Board is restricted

by regulation, the pertinent Air Board regulations do not

regulate, control or dictate the circumstances under which an

Air Board can recommend referral of an officer's record to

an SSB. See 32 C.F.R. §§ 865 et seq. This, then, is an

instance of genuinely independent judicial review of this

important part of the military personne! management system.

When we put the facts of this case into the construct of

section 628(b),' we note the odd posture of this case. By the

time of his consideration (and subsequent passover) by the

1993 SSBs, Porter's record had been corrected to remove the

offensive OER and other prejudicial information. Indeed,

Porter no longer argues that he is entitled to be promoted

because of procedural error by the SSBs. Porter thus

concedes that he is now lawfully discharged. Nonetheless,

Porter asserts that the failure of the Air Board at some past

time to void his two passovers amounts to an error of law

' Not all of section 628 is before us in this case. Because of the facts

presented here, we may overlook section 628(a)(1), (2), and (3), dealing

with cases in which an officer did not meet a regular selection board at

all because of administrative error. This case also does not require us to

interpret and apply section 628(c)(1)-(2) and (d)(1)-(2), except to note

that the latter provisions make the decision of an SSB to promote an

officer binding on the military department in question. Thus, it is the

language of section 628(b) and its interaction with the other Statutory

Provisions at issue in this case that we review here.

entitling him to constructive reinstatement as of 1985, back

pay and related benefits. |

Shortly after promulgation of section 628, the Air Force

issued a regulation relating to SSBs. See AFR 36-89 (Sept.

15, 1981). The regulation contemplated that SSBs would be

convened for officers on active duty (presumably those

officers passed over just once by a selection board and

desiring to challenge the proceedings of that selection

board), and also for "separated officers (who have not been

restored to active duty) who have petitioned the Air Board or

a court to be restored to active duty." Sec. 5-3, AFR 36-89

(Sept. 15, 1981). In "Consequence of Nonselection," Sec. 5-

7, the regulation stated that an officer meeting an SSB, but

not recommended for promotion by the SSB, would "incur

no additional failure of selection for promotion unless the

results of the original board(s) were set aside (voided) by

proper authority when the case was referred to the special

selection board." See also, AFR 36-89 (April 17, 1992) and

AFI 36-2501 (Mar. 1, 1996). In those cases, the passover by

the SSB amounted to an additional failure of selection, in

that it replaced the previous nonselection decision that had

been voided before the officer's record was sent to the SSB.

These two provisions together reveal the Air Force's

contemporaneous understanding of those officers for whom

SSBs could be convened. They also evidence the

understanding of the Air Force that in some but not all

instances passover decisions by regular selection boards may

be voided before an officer meets an SSB. The same

interpretation continued after 1981, when the Air Force

amended the SSB regulation to provide, inter alia, a different

test that the officer must meet to succeed before an SSB. The

amended test requires that in order to be selected for

promotion by an SSB, the SSB must find that the applicant's

ee eee

record scores higher than all the nonselect records and ties at

least one of the selected records from the original selection

board. See Sec. 35d., AFR 36-89 (April 17, 1992) and Air

Force Information (AFI) 36-2501 (March 1, 1996).

The decision to convene an SSB in any particular case was

made if the Secretary of the Air Force, or one properly acting

on behalf of the Secretary, such as the Air Board, determined

that

(1) The action of the board that considered the officer

was contrary to law or involved material error of fact

or material administrative error, or

(2) The board did not have before it for its

consideration, material information that should have

been available had pertinent Air Force regulations

and policies been complied with.

See Sec. 5-4b., AFR 36-89 (Sept. 15, 1981); Sec. 33a.(2),

AFR 36-89 (April 17, 1992); Secs. 6.3.2.1 & 6.3.2.2, AFI

36.2501 (Mar. 1, 1996). The Air Force regulations for SSBs

have thus consistently stated that access to an SSB occurs

when the Secretary, or his or her designee, determines that a

“material error of fact" was "involved" in the previous

passover decisions. Neither the statute nor the regulations

define the term "material error of fact."

Aside from the language of the regulations noted above, we

have not found, nor have the parties suggested to us, any

other support for or against the proposition that a decision of

the Air Board to convene an SSB must, as a matter of law, be

coupled with a recommendation that previous passovers be

voided. As noted, the contemporaneous regulations suggest

that such coupling may occur in some cases, but not in

others. To the extent that the regulations can be said to aid in

our inquiry, they seem to indicate that the Air Force and the

Air Board are vested with a measure of flexibility in

deciding whether to void passovers in a given case before

convening an SSB.

The one small reference to section 628(b) in the legislative

history is instructive in the context of the facts here: "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). 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, as the regulations specify, 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.

We turn now chronologically to the pre-DOPMA case law in

the Court of Claims on which the Court of Federal Claims

_ and Porter rely for the conclusion that a decision by the Air

Board to recommend an SSB necessarily requires voidance

of previous passovers, with the attendant consequences of

such a correction of an officer's record. We note and

emphasize at the outset that none of the cases discussed

below contemplated or pertained to the Statutory and

regulatory framework established after the enactment of

section 628 in DOPMA.

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

(Ct. Cl. 1979), the Court of Claims, sitting en banc,

considered the case of an officer who had been discharged

after the requisite passovers by promotion boards. On

petition, the Air Board recommended, and the Secretary

approved, correction of the officer's records to remove four

OER's. The Air Board, however, did not act on the officer's

request to void the initial passover decisions made by

selection boards that had seen the erroneous OERs. The

officer was subsequently twice passed over again, on the

basis of a record omitting the erroneous OERs but failing to

account for the gap in the record caused by their omission.

The officer brought suit in the Court of Claims, asserting that

the Air Board had acted arbitrarily and capriciously in failing

to void the initial passovers. The officer sought reinstatement

and back pay.

The Court of Claims noted that the burden of proof falls on

the plaintiff to demonstrate an “abuse of administrative

discretion [that] rises to the level of legal error which merits

judicial relief." Id. at 813. According to the court, such cases

of abuse are comparatively rare, "because the proof must

overcome the strong, but rebuttable, presumption that the

administrators of the military, like other public officers,

discharge their duties correctly, lawfully, and in good faith."

Id. (citing Doggett v. United States, 207 Ct. Cl. 478, 483

(1975); Skaradowski v. United States, 200 Ct. Cl. 488, 471

F.2d 627 (Ct. Cl. 1973); Hertzog v. United States, 167 Ct.

Cl. 377 (1964); Prince v. United States, 127 Ct. Cl. 612, 119

F. Supp. 421 (Ct. Cl. 1954)).

Because Sanders had been passed over subsequently on a

record that omitted the erroneous OERs, and discharged, the

government argued that Sanders could not prevail unless he

could show that he would or probably would have been

selected "but for" the errors in his record. In other words,

under the government's view of the allocation of burdens of

proof, Sanders would have to "show that the defects in his

file alone led to the non-promotion decisions and to his

discharge." Id. at 814.

The Court of Claims grasped the consequences of such a

"but for" test for the officer: "the test requires proof of

inherently subjective considerations not really susceptible of

proof. It would be all but impossible for a serviceman to

prove he would have been promoted but for the defendant's

error." Id. at 816. Furthermore, the "but for" test would have

focused the court's analysis and decision on the merits of

Sander's promotion prospects, instead of on the alleged

demerits of his discharge. In particular, the court observed

that:

carried to its logical conclusion, the defendant's but

for test would, assuming a plaintiff could produce

any viable proof under it at all, place on the court the

burden of deciding the issue of promotability. We are

not a super selection board. We have repeatedly made

it clear that deciding who gets a promotion is not our

responsibility, absent proof of a legal right to it which

has been violated.

Id. at 816. The court's firm reluctance to let itself be pushed

into the arena of military personnel Promotion decisions was

rooted in the long-standing command from the Supreme

Court that:

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. __

Orloff v. Willoughby, 345 U.S. 83, 93, 94,97 L. Ed. 842, 73

S. Ct. 534 (1953). Indeed, the Court of Claims itself had

Stated the impropriety of courts intruding into military

promotion decisions:

The reluctance of the judiciary to review promotion

actions of selection boards is rooted not only in the

court's incurable lack of knowledge of the total grist

which the boards sift, but also in a preference not to

meddle with the internal workings of the military

.... The promotion of an officer in the military

service is a highly specialized function involving

military requirements of the service and the

qualifications of the officer in comparison with his

contemporaries, plus expertise and judgment

possessed only by the military. No court is in a

Position to resolve and pass upon the highly

complicated questions and problems involved in the

promotion procedure, which includes, but is not

limited to, an analysis of the fitness reports and

personnel files and qualifications of all the officers

considered

Brenner v. United States, 202 Ct. Cl. 678, 692, 693-94

(1973), cert. denied, 419 U.S. 831, 42 L. Ed. 2d 56, 95 S. Ct.

54 (1974).

In light of this law--and its own fear of treading on

impermissible legal ground--the court in Sanders placed the

ultimate burden of proof on the government to show that the

officer would not have been promoted had his record

contained no error. Sanders, 594 F.2d at 816.

Analyzing the proceedings before the Air Board in Sander's

case, the court surmised that the Air Board had in fact

applied a but for test to Sander's case, and by doing so had

"usurped the functions of the selection board, making itself a

sort of super selection board, instead of correcting the error

and injustice as its charter contemplates..." Id. at 817. Thus,

it was legal error for the Air Board to use the wrong test to

measure Sander's application for relief. Nonetheless, the

court sympathized with what it took to be the desire of the

Air Board to "formulate a standard for harmless error to

avoid windfall recoveries." Id. at 818.

Although the Air Board had not applied a harmless error

standard to the facts in Sander's case, the court deemed the

errors in Sander's record so severe as to require the voiding

of the passover decisions based on erroneous records.

Harmless error, according to the court, lies when "substantial

evidence shows that it was unlikely that the officer would

have been promoted in any event." Id. Because the burden to

produce such substantial evidence is on the government, and

because "that evidence is missing here," Sanders was entitled

to prevail.

Two months after deciding Sanders, the Court of Claims

again confronted a case en banc concerning officers

discharged after two passovers: Doyle v. United States, 220

Ct. Cl. 285, 599 F.2d 984 (Ct. Cl. 1979). In this instance, the

officers in question had served in the U.S. Army Reserve. By

statute, the boards that considered the officers for promotion

were to include an appropriate number of Reserve officers.

The selection boards that produced the passovers requiring

discharge of the plaintiff officers, however, contained no

Reserve officers. The Army Board for Correction of Military

Records responded to the fundamental defect in the

composition of the selection boards by recommending to the

Secretary that the passed over officers be reconsidered by

properly constituted selection boards. The initial passover

decisions were not voided, and the officers that had been

discharged because of two passovers were not reinstated

with back pay. Properly constituted boards later passed over

the officers again. Doyle, 599 F.2d at 992.

The government sought to excuse the unlawful composition

of the original selection boards on the ground that such error

was proven harmless by the later passovers by properly

constituted boards. The officers argued that the error in the

onginal boards had been so fundamental that their initial

passovers should be voided, with the consequence of

reinstatement and back pay until the properly constituted

boards later passed them over, causing their lawful

discharge. The court responded by holding the harmless error

test inapplicable to a fundamental "procedural violation

[that] penetrates to the heart of the process Congress deemed

necessary for fair judgment in selecting officers for

promotion . . . ." Id. at 996. Clearly underpinning this

holding is the logical proposition that an illegally composed

selection board cannot produce lawful decisions.

Consequently, the court held that the corrections board had

_ acted arbitrarily and capriciously in failing to void the initial

passovers of the plaintiff officers. Id.

In Hary v. United States, 223 Ct. Cl. 10, 618 F.2d 704 (Ct.

Cl. 1980), the officer was passed over for promotion in the

Air Force and separated from active duty. He sought relief

from the Air Board, alleging that certain OERs in his record

were erroneous, requiring their removal from his record and

resubmission of his case to other selection boards. The Air

Board refused to remove the contested OERs and denied

Hary's petition for correction. Hary brought suit in the Court

of Claims. Because the Air Board had applied the "but for"

test rejected in Sanders, the court restated the test to be

applied. In order to prevail, the claimant must show that the

alleged defect in the proceedings

substantially affected the decision to separate him or

relieve him from active duty, or at least he must set

forth enough material to impel the court to direct a

further inquiry into the nexus between the error or

injustice and the adverse action.

Hary, 618 F.2d at 707. Rather than remand the case to the

Air Board for application of the proper test, the Court of

Claims applied the test itself. In so doing, the court held that

two of the contested OERs satisfied the burden placed on the

claimant. Id. at 708. Next, the court assessed whether the

error caused by the one faulty OER was "harmless" to the

passover decisions. To do so required the court to "canvas

for ourselves the evidence in the administrative record in the

light of the arguments and analyses offered by the parties."

Id. at 709. Although the court disclaimed operating as a

"super selection board in passing on this problem of the

connection between the defective OERs and the likelihood of

plaintiff's selection for promotion," id. at 710, it then

assessed and compared comparative rating scores and

records of Hary and other officers. Id. at 710-11. The court

ultimately concluded that "it is quite likely that the plaintiff

would have failed to be promoted to permanent major in

1971 and 1972 even if the [defective] OERs had not been in

his record." Id. at 711. In short, after assessing the

government's rebuttal to the officer's prima facie case, the

error of the two OERs was held to be harmless. Id. ("Any

error in the selection process was therefore harmless").

We need only pause briefly over Evensen v. United States,

228 Ct. Cl. 207, 654 F.2d 68 (Ct. Cl. 1981), since it is a

reprise of Doyle. In Evensen, the officer was initially passed

over by regular selection boards. On petition from Major

Evensen, the Army corrections board agreed that his

passovers were infected with erroneous OERs. The board

recommended that the officer be presented, on a corrected

record, to a STAB for promotion consideration. The STAB,

however, was populated with the same officers that had

composed the initial selection boards, quite in violation of

applicable regulations. The Court of Claims held, citing

Doyle, that the harmless error rule of Sanders is inapplicable

to the error of composition of the STAB, and that, as in

Doyle, the correct remedy is automatic voiding of the initial

passovers. Evensen, 654 F.2d at 72.

Our recitation of the pertinent Court of Claims cases ends

with Engels v. United States, 230 Ct. Cl. 465, 678 F.2d 173

(Ct. Cl. 1982). Like Hary, Engels did not involve

fundamental process error in the composition of the board,

but instead necessitated application of the harmless error

rule. The court restated the rule to clarify that the burden on

the officer is to make a prima facie showing of nexus

between the alleged error in his record and the passover

decision. Engels, 678 F.2d at 175. The final burden of

persuasion "falls to the Government to show harmlessness--

that, despite the plaintiff's prima facie case, there was no

substantial nexus or connection." Id. Even though the

corrections board had erroneously applied the discarded "but

for" test, the court proceeded to the merits of the dispute as

in Hary, deciding that the plaintiff had met his burden. Id. at

176. Turning to the government's case, the court asked the

quintessential military promotion question: whether it "is

unlikely that he [Engels] would have been promoted in any

event." Id. After an extensive examination of the details

concerning the relative merits of Evensen's promotion

prospects, the court concluded that the government had

failed to carry its end burden, and that Evensen thus could

not be deemed properly passed over by his selection boards.

Id. at 178. Thus, as in Hary, the court decided the merits of

the promotion issue, and concluded that the officer must be

reinstated with back pay until such a time as he was correctly

discharged. Id. at 180.

From this body of law, we can reach certain judgments, at

least insofar as they pertain to cases arising on similar facts

before SSBs were available to assist in the officer selection

process. Instances of fundamental error, at least those

affecting the composition of the deciding body, are not

susceptible to review under the harmless error test. See

Doyle, 220 Ct. Cl. 285, 599 F.2d 984 (1979); Evensen, 228

Ct. Cl. 207, 654 F.2d 68 (1981). Presumably because the

civilian corrections board can correctly and assuredly

measure the depth of the wrong in such cases, that is, when

there can be no doubt that the error undermines the outcome,

the remedy of voided passovers, reinstatement and back pay

follows as of course. See, e.g., Doyle, 599 F.2d at 1004.

In cases that pit the officer against his military superiors in

the debate over whether the officer is relatively more

qualified than other officers competing for promotion, our

predecessor court had little choice but to formulate and

employ either the "but for" test or the "harmless error" test,

in order to analyze the facts at hand. As the opinions in the

foregoing cases make quite clear, it makes no sense to order

relief for a corrections application that alleges an error

lacking any impact on the passover decision. See. e.g.,

Sanders, 594 F.2d at 813. But because error that is not

bes Uc SER RSNA SRE RMI i rm ec

"harmless" begs for correction, the decision and rule in

Sanders was necessary to decide the fundamental!

promotion/non-promotion issue. Id. at 816. The Court of

Claims candidly recognized that the "but for" test urged by

the government would turn the court (as well as the

corrections board) into a super selection board, and thus

necessarily enmesh the court in the basic promotion issue

when such a decision of a corrections board was challenged

Id.

That the harmless error test would paradoxically force the

civilian corrections boards and the court into the same

obligation to make essentially military promotion decisions

became quite evident from the court's decisions in Hary and

Engels, which reflect judicial resolution of the fundamental

promotion issue. Hary, 223 Ct. Cl. 10, 618 F.2d 704 (1980);

Engels, 230 Ct. Cl. 465, 678 F.2d 173 (1982). With no

statutory tool available to resolve the basic promotion issue,

the Court of Claims' resolution of the issue left the civilian

corrections boards and the courts in the middle of decisions

that are fundamentally military in nature.

The case law does reveal one instance in which a corrections

board could satisfy its duty to correct records under section

1552, in a passover situation, without using the harmless

error test in such a manner as to make itself into a super

selection board. The case is Braddock v. United States, 9 Cl.

Ct. 463 (1986). After two nonselections for promotion,

_ Braddock was discharged from the Army. He petitioned for

correction of his records, asserting the presence of faulty

OERs in his record before the selection boards that passed

him over. The corrections board agreed, recommending

removal of the faulty OERs and that Braddock's record be

presented to a STAB "for an advisory opinion as to whether

plaintiff's consideration by the original selection boards was

prejudiced by the errors [in his record]... ." Id. at 466. In

the Army, the STAB was a creature of regulation and

standard operating procedures, and existed to advise the

Secretary on promotion matters and to "test and determine

whether the error in the officer's records was prejudicial or

harmless." Id. at 467. The STAB concluded that Braddock

would not have been promoted in any event. Later, the

corrections board confirmed its decision not to void the

passovers and Braddock's discharge.

Because the corrections board declined to void Braddock's

two passovers and his discharge before recommending that

he meet a STAB, he brought suit alleging that such action

was required, under the Court of Claims case law discussed

above, when faulty OERs were removed from his record and

his case was sent to the STAB. The Claims Court disagreed.

By sending Braddock's record to the STAB—{a] panel of

military officer[s]--for a recommendation on Braddock's

promotion prospects, the corrections board had simply

deferred its decision on whether to void the initial passovers

until it had advice from the military on the essentially

military question of promotion. The Claims Court found

"nothing wrong with this procedure." Id. at 473. The Claims

Court thus viewed the process in Braddock as an application

of the harmless error test by the corrections board that did

not require the corrections board or the court to become

involved in the comparative officer qualification issue. In the

end, the harmlessness of the error caused by the faulty OERs

was shown by the corrections board's acceptance of the

STAB's decision that Braddock would not have been

promoted even on a correct record. See id. at 469. Taking

comfort with the process in the case, the Claims Court noted

that "Congress basically ratified the STAB process when it

enacted 10 U.S.C. § 628 in 1980." Id. at 474.

We must now measure the decision of the Court of Federal

Claims in light of sections 1552 and 628 and the pre-

ert tmemaainenraneeeacassamistacenpdeonlanaagaanmameraantaaam

DOPMA case law. The issues framed from the decision of

the Court of Federal Claims and by the briefs raise an issue

of interpretation of section 628, addressed in part A below.

and other issues that draw their breath from the interaction of

sections 1552 and 628 and the pre-DOPMA case law. Those

issues are considered in parts B, C, and D.

Purely as a matter of statutory construction, the Court of

Federal Claims concluded that an SSB, at the request of a

corrections board, may only consider the record of an officer

twice passed over and discharged if the officer is at least

constructively reinstated. According to the court, in order to

effect such a constructive reinstatement the corrections board

is required to actually or implicitly void the two passovers

that forced the discharge. The court came to its conclusion

because the statute affords access to an SSB to "an officer

who is eligible for promotion who was considered for

promotion by a selection board but was not selected... ." 10

U.S.C. § 628(b)(1) (1994). To be "eligible" for promotion,

_ the court concluded that the officer must be on the active

duty list, which in Porter's case would have required actual

_ or constructive reinstatement. Porter essentially repeats this

view in urging affirmance of the Court of Federal Claims.

The government responds that Porter overlooks the pertinent

legislative history and fails to appreciate that section 628 acts

to turn the clock back to the date of the original selection

board passover decisions in order to assess the officer as of

the time of the initial selection board decisions, when the

officer was on the active duty list. As noted earlier, the

__ legislative history, although sparse, is clear in Stating its

_ purpose: to make a "reasonable determination" whether the

_ officer would have been promoted if his records originally

had been seen untainted by material error. See H.R. Rep. No.

96-1462, at 73 ( 1980). Thus, we can be certain that Congress

intended for discharged officers to have access to SSBs. The

Statutory language, however, speaks only of officers

"eligible" for promotion. On the face of that language, an

officer challenging his first passover before discharge after a

second passover would still be "eligible" for promotion as an

active duty officer, whereas the officer passed over twice and

discharged would lack access to an SSB for want of

eligibility for promotion.

We think it unlikely that Congress intended with the use of

the word "eligible" to draw a line between officers once

passed over and those twice denied promotion, allowing the

latter access to an SSB only if they are by a fiction

constructively reinstated to the active duty list We reach this

conclusion because of the certain retroactive character of the

_ SSB deliberative process. Consequently, we interpret the

word "eligible" in section 628(b) to mean eligible as of the

time of the consideration of the officer's record by the

selection boards whose decisions are later challenged. Porter

thus, as a matter of statutory interpretation, was "eligible" for

consideration by the SSB without the need to reinstate him,

actually, constructively, or by "deemed" action of a reluctant

corrections board, the latter being the avenue to the SSBs

paved for Porter by the Court of Federal Claims.

We thus conclude and hold as a matter of statutory

interpretation that nothing in section 628 requires the

constructive reinstatement--via the purge of at least one of

the two passovers from the officers’ record—of a twice passed

over and discharged officer in order to present the officer's

record to an SSB.

The government presents the following argument. The Air

Board is authorized by section 1552 and the regulations

promulgated thereunder to receive and pass upon

EE Se a ae i ine aie

applications from current and past Air Force military

personnel for the correction of their military records. This

authority extends to all military records, and the authority of

the Air Board to recommend corrections to the Secretary is

unfettered. According to the government, the Air Board is

empowered to use its authority with sound discretion. As an

example of such sound discretion, the government asserts

that the Air Board may, in appropriate cases, recommend

that a twice passed over and discharged officer's record be

corrected to remove the passovers and void his discharge.

The government posits that such action would be taken by

the Air Board when it is certain that a discovered error

before an officer's previous selection boards necessarily led

to the officer's nonselection. The government does not

catalog the entirety of such Situations, noting only that such

would appear to be the case if an applicant's military record

contained another officer's unfavorable disciplinary action

report. Without deciding, we might speculate that other kinds

of error would qualify for an Air Board conclusion that the

demonstrated error vitiates the initial passovers. Matters such

as impermissible consideration of race, sex or religion, or

instances of an illegally composed selection board (one thus

incapable of producing a legal result) come to mind. F or

such matters, the civilians on the Air Board possess the

competence and confidence to make a correct decision and

recommendation without Judging the competing qualities of

specific military experience records. With regard to cases

presenting only the issue of relative promotability of officers,

when a corrections board has already corrected the officer's

military experience record, however, the government draws a

line. For such situations, the government asserts that nothing

in either section 628 or section 1552 prohibits the Air Board

from refusing to void previous passovers when

recommending that the officer meet an SSB for an

assessment of his relative promotion prospects, based on his

cleansed record and records of officers who met the original

boards along with the protesting officer. In this respect, we

agree with the government's reading of the pertinent statutes.

The government also complains that the insistence of the

Court of Federal Claims that the Air Board perform a

harmless error analysis itself, and the court's sua sponte

performance of that task in the face of the unwillingness of

the Air Board, carries the civilias. Air Board and the courts

into the impermissible zone of military decisions that are

reserved to the military, absent legal error in the promotion

decisions.

From the government's perspective, the solution to unwanted

intrusion of the courts into the military business of

promotion is to recognize that the harmless error test from

the pre-DOPMA cases is unnecessary for fair consideration

and decision of applications to the Air Board in challenging

the legality of previous passover decisions. In cases in which

the error is found to be egregious, when the Air Board is sure

of the need to void previous passovers, we may assume the

Air Board will exercise its full authority. For such cases, the

harmless error test is unnecessary and inapt, as the Court of

Claims reasoned long ago in Doyle and Evensen. See Doyle,

220 Ct. Cl. 285, 599 F.2d 984 (Ct. Cl. 1979), Evensen, 228

Ct. Cl. 207, 654 F.2d 68 (Ct. Cl. 1981). But in cases in which

the Air Board lacks the confidence to make a fundamentally

military promotion decision, such as this one, the Air Board

is not obligated to resolve an officer's promotion prospects

by performing a harmless error analysis. Instead, the Air

Board may recommend that the fundamental promotion

determination be made by the SSB. If the SSB decides in

favor of the officer, that decision binds the Secretary, and the

Air Board will make the necessary Corrections to the rec 1rd,

as specified in section 628. If the SSB determines that

nonselection is appropriate, then, as occurred in this case the

Air Board stands ready to receive and decide any comple. its

;

“

an officer may assert concerning the process and decision of

an SSB.

)

The government advances its view of the Air Board's

authority as preserving all of the Air Board's section 1552

powers, while at the same time extricating the courts and the

civilian correctior.. boards from thé unwelcome situation in

which passover adjudication placed them before the

enactment of section 628. Nothing in the government's

argument, or in our decision in this case, limits in any way

the authority and duty of the Air Board to correct the

substantive contents of an Officer's record as it exists before a

Promotion board, including SSBs.

Against the government's arguments, Porter raises several

protests. First, Porter faults the government for shifting legal

theories in the course of the long court proceedings in this

case. According to Porter, the government agreed that this is

a harmless error case early on, and the government cannot

prevail because, according to Porter, it has never rebutted

Porter's prima facie case that the errors in his record are not

harmless. Porter's frustration in keeping up with an evolving

set of legal issues over a long time does not, however, rise to

the level of error on the government's behalf. Porter also

defends the view of the Court of Federal Claims that only

Officers on the active duty list are eligible for consideration

by an SSB. For the reasons Stated in part A of this section,

we reject that reading of the statute.

ROBES AIM as AIR cE tp cil

Wt OOS Ph RIT ON IRL by Et N

To a

Porter also argues that the Statutory test for referral to an

SSB, which is "material error of fact," in this case means an

error which is not harmless under the Sanders-Hary-Engels

analysis. Porter's argument is flawed. First, Porter recognizes

that an officer's record can be sent to an SSB by the military

command itself, without a recommendation from the

corrections board. Because no one argues that the harmless

“ror test applies to the military command, Porter states that

the military command can invoke an SSB on the showing of

"mere material error," something less in degree of impact on

initial passover decisions than "non-harmless" error. Thus,

Porter would have a two-level meaning for the statutory

words: "mere material error" in one instance, and full blown

"non-harmless error" when access to an SSB is

recommended by a corrections board. To state Porter's

argument discloses its weakness: such a two-tiered meaning

for a statutory word is unacceptable because it would create

two statutory avenues to an SSB when the law specifies only

one. Cf. 10 U.S.C. § 628.

At the heart of Porter's case is his firm conviction that the

harmless error test introduced by the pre-DOPMA case law--

under which he presumably would be entitled to voidance of

his two passovers before he was sent to the SSBs--survives

the enactment of section 628 and is still necessary to produce

fair and equitable consideration of officers' records by

selection boards. Porter also argues that the government's

position would undercut the section 1552 powers of the Air

Board. In particular, Porter asserts that the Air Board has the

entire duty and responsibility under section 1552 to

recommend correction of military records, and that therefore

any reliance on an SSB to assist in the records correction

process is an unlawful abdication by the Air Board of its

statutory duties.

Stated differently, Porter's argument is that, without

implementation of the harmless error test as a mandatory

feature of the Air Board's processes, the Air Board shirks its

duties under section 1552 by losing control of the corrections

process. This loss of control, he says, is seen in the failure to

force the civilian corrections board to decide the military

promotion issue, and in allowing the SSB to make the

records correction decision. We disagree.

SAE EN birt SE ME RR ces SD

The Air Board must act on an offiwer's petition for

correction. When the officer asks “at previous passovers be

voided, the Air Board must respe=:’ with a decision In

appropriate cases, we may assur: iat the Air Board will

exercise its discretion to void passovers. If the Air Board

recommends that an officer's recor be sent to an SSB

without first voiding earlier passowers, the Air Board retains

coi Tol over the petition for correction and is authorized and

obligated to review the actions of the SSB on application

from the officer, as occurred in this case. Nothing prevents

the Air Board from considering fundamental flaws of an

SSB, such as the Doyle-Evensen type, or other material error

that m ght be involved in an SSB decision. If the Air Board

Stays action on a request to void passwvers pending action by

an SSB, it must subsequently grant or deny the request to

void the initial passover to close out the petition for

correction. That the Air Board does not lose control of the

corrections process pending action by an SSB is evident,

. because the Air Board must be able to act in the event

| Material errors of a procedural, factual, or compositional

| Nature infect the SSB deliberations.

_ Porter's view of how the Air Board must operate once it finds

a material error of fact requiring correction in the record of a

_ twice passed-over officer is also subject to practical

_ criticism. As is clear from the case law exegesis above,

performance of the harmless error test requires the

_ Corrections board to act as a kind of selection board.

Asswning, post-section 628, that a corrections board

_ €mp'oyed the harmless error test and concluded in favor of

the officer, it would, on Porter's view, then in essence

recommend that the same kind of analysis be performed

again by the military SSB. A certain duplication of effort

would seem inescapable and to no beneficial end.

_ As we have stated above, in light of the lack of any statutory

_ command to extend use of the harmless error test to section

628 cases, the government urges us to discard that test. We

take care to note that the government does not ask us to

overrule the Sanders-Engels line of cases. As a panel of this

court, we of course are bound by the law of our predecessor

court. h _V. Uni s, 690 F.2d 1368 (Fed.

Cir. 1982). If the government's argument prevails, however,

we may understand those decisions as not applicable to the

case before us, because of the change in law governing the

review of twice passed-over officers.

We think it is possible, though less desirable, to force this

case into the harmless error analytic construct, as the

government seems to have urged at the early stages of the

litigation. As described in the following paragraphs, we

consider and reject this possibility. Such forcing would posit

that the corrections board must make a harmless error

determination in every case, but that it only makes that

decision after an SSB has made its decision on the

promotability issue. If the SSB decides in favor of

promotion, thé analysis would conclude that the government

had failed to prove that the material error that drove the case

to the SSB was harmless. If the SSB decided against

promotion, the harmlessness of the error would have been

shown.

The harmless error rule of the old cases leads to many

complexities, and in the end has enmeshed the civilian

corrections boards and the courts in the essence of promotion

vel non judgments. Retaining the harmless error test for

Cases such as this, however, carries the prospect that the line

dividing the military and the courts will become blurred if

not pierced. Thus, we perceive some considerable risk in

forcing the SSB process into the harmless error mold.

——

At the same time, we think there is little genuine gain to the

military personnel selection process by retention of the

harmless error construct. Under section 628, a passed-over

officer--including an officer discharged after two Passovers--

has access to an SSB ona showing of "material error" See

10 U.S.C. § 638(b). As that term is understood by the

government, it means an error that, in the opinion of military

command or a corrections board, might have affected the

outcome of selection board decisions. On such a showing, an

officer's record would go before an SSB, which is authorized

| by law to make a promotion decision that will bind the

} military command and the Secretary of the military

department. Civilian corrections boards retain their full

Powers to correct military records in order to insure that the

promotion system is operated fairly and according to

governing statutes and regulations. Even without the

harmless error construct, corrections boards have ample

authority and responsibility to guarantee that an officer's

record will be substantially complete and fair when

presented to selection boards, and that the processes of

selection boards, including SSBs, will not be arbitrary,

i capricious or contrary to law.

We see nothing in section 1552 nor in section 628 that stands

in the way of the government's argument. Proper allocation

of civilian and military duties and responsibilities is

advanced by the government's position. The pre-DOPMA

law on which the Court of Federal Claims relied need not be

applied to the circumstances of this case. The harmless error

test, while necessary to adjudicate cases such as this before

the enactment of section 628, is not only unnecessary now,

: but grafting it onto section 628 is sufficiently problematic for

_ US to reject that possibility. In cases such as this, the

harmless error rule has no application.

Because the powers of the Air Board are not circumscribed

by section 628, we emphasize that the Air Board's duties and

responsibilities are not reduced when it invokes assistance

from an SSB in responding to a petition for correction of

military records. In order for an SSB to perform lawfully, it

must yield--as Congress expected--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." See H.R.

Rep. No. 96-1462, at 74 (1980). We note that the same kinds

of questions that may be raised about the records presented

to, and the procedural operations of, regular selection boards

can be raised about the records before, and procedural

operations of, an SSB. When such questions are presented to

a corrections board on a petition to correct a military records

created by an SSB, the corrections board is bound by statute

to decide the questions presented. Section 1552 of title 10

conveys broad authority to the corrections boards regarding

how they may exercise their statutory responsibilities, and

contains no prescriptions on how they may fulfill their

Statutory charge. Therefore, the Air Board is not required to

decide whether an error of a regular selection board was not

"harmless" under the pre-DOPMA case law when

recommending that a passed-over officer meet an SSB, in

order to receive--after the fact--a reasonable determination of

his prospects for promotion on a corrected record. Rather, in

the post-DOPMA context, the Air Board may exercise its

section 1552 authority by following the statutory directive in

section 628(b)(1)(A); that is, convening an SSB upon

determining that "the action of the [original selection] board

which considered the officer was contrary to law or involved

material error of fact or material administrative error."

1 he hls i NRE Rie BT CRT aati ie aa

However, section 1552 imposes the ultimate responsibility

on the corrections board to assure that, if utilized, a section

628 SSB produces a reasonable determination of the officer's

promotion prospects. If an officer meets an SSB

unsuccessfully and can point to a material flaw in the SSB's

procedures arguably undermining the SSB's nonselection

judgment, he may petition the corrections board to alter or

void the SSB's decision. After an SSB has made its decision,

the focus of the corrections board's attention under section

1552 is on whether the process by which the SSB reached its

decision afforded the officer a "reasonable determination" of

his promotion prospects. Indeed, in this case, Porter

challenged the lawfulness of the 1993 SSBs in essence on

the ground that he was deprived of a "reasonable

determination" because of alleged imperfections in the

benchmarks and scoring used by the SSBs. The Air Board

was in error when it suggested that the response to Porter's

challenge would better be given by an SSB. As the Air

Board'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 supercompetitive 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 voidance of previous passover

decisions. Because the civilian corrections board is obligated

to recommend voidance of SSB decisions only when it

concludes that the process before an SSB has not yielded a

reasonable determination that the officer would have been

denied promotion initially even with an untainted record, the

use of an SSB in this case was consistent with, and satisfied,

the responsibility of the Air Board under section 1552.

The civilian boards for correction of military records are no

less the guardians of the military promotion process after

DOPMaA than they were before DOPMA. The promotion

interests of military personnel that were protected by

corrections boards in the past remain protected when an SSB

is used as part of the records correction process. Because of

DOPMA, however, the methodology of corrections boards

may dispense with the old and mooted harmless error

inquiry, and instead focus on whether an SSB has achieved

its statutory function of producing a reasonable

determination of the officer's original promotion prospects.

In a nutshell, the interaction between section 1552 and 628

shifts the focus of attention of a civilian corrections board

from the relative promotion prospects of one officer over

others to the fairness of the process by which an SSB has

decided the promotion issue in a given instance.

Finally, we assure the parties that we have fully considered

their other arguments in support of their positions and have

determined that the other arguments do not affect, undercut,

or stand in the way of our ultimate conclusions.

Conclusion

In cases such as this, the Air Board is not required by statute

or case law to void the initial passovers, with the attendant

consequences, when recommending that the officer's record

be submitted to an SSB. The Air Board's decision to deny

Porter's request for voidance of his initial passovers in this

case is therefore not arbitrary, capricious, unsupported by

substantial evidence or contrary to law. Porter was lawfully

od BN ae RLF le eine A al fl RR itis we dS

discharged from the Air Force in 1985. The judgment of the

Court of Federal Claims is reversed.”

REVERSED

* Porter argues, in a conditional motion to remand to the Court of Federal

Claims for further Proceedings, that this court should not “defer” to the

views stated in the Second Addendum without first remanding the case to

¢xamine the circumstances by which the Second Addendum was written.

To the extent that we agree with any view stated in the Second

Addendum, we do so as an independent matter of statutory interpretation.

The conditional motion to remand is denied

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

97-5007

GREGORY C. PORTER,

Plaintiff-Appellee,

THE UNITED STATES,

Defendant-Appellant.

ORDER

January 20, 1999, Decided

January 20, 1999, Filed

A combined petition for rehearing and suggestion for

rehearing in banc having been filed by the APPELLEE, and

the petition for rehearing having been referred to the panel

that heard the appeal, and thereafter the suggestion for

rehearing in banc having been referred to the circuit judges

who are in regular active service,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the

same hereby is, DENIED and it is further

ORDERED that the suggestion for rehearing in banc

be, and the same hereby is, DECLINED.

SUS Mee NT hee eee ee

Beat Gh cote Ra cae 2 Bs BR ce ls

The mandate of the court will issue on January 27,

1999.

Chief Judge MAYER did not participate in the vote.

FOR THE COURT,

/s/

Jan Horbaly

Clerk

Dated: January 20, 1999

CC: Armando Bonilla

Kathleen J. St. John

PORTER V US, 97-5007

(CFC - 91-1008C)

Note: Pursuant to Fed. Cir. R. 47.6, this order is not.citable

as precedent. It is a public record.

IN THE UNITED STATES COURT OF FEDERAL

CLAIMS

No. 91-1008C

(Filed December 30, 1992)

EEEKEEKEKEKEREEEAKEKKEKEEKS

GREGORY C. PORTER,

Plaintiff,

THE UNITED STATES,

—

V. .

—

Defendant.

KEEKKKEKKKEKAEAKRAEREKAEKAKKKEEKEKK

Order

Defendant’s motion for summary judgment is granted in part

and denied in part, and this case is remanded to the Air Force

Board for Correction of Military Records (AFBCMR). See

28 U.S.C. § 1491(a)(2) (1988) (“In any case within its

jurisdiction, the court shall have the power to remand

appropriate matters to any administrative or executive body

or official with such direction as it may deem proper and

just.”’)

' Remand to a correction board is appropriate when the administrative

record is not sufficiently developed for the court to make a reasoned

judgment. See Hary v. United States, 618 F.2d 704, 710 (Ct. Cl. 1980).

—

ol ti Meh AO als ER

Facts

Plaintiff was commissioned in the United States Air Force

Reserves and entered active duty on March 5, 1981. He was

promoted to the rank of first lieutenant on March 5, 1983.

Plaintiff was not selected by the two selection boards

considering him for promotion to the rank of captain, which

were convened on July 23, 1984 (CY 84 B) and January 21,

1985 (CY 85A). On August 31, 1985, plaintiff was

honorably bur involuntarily discharged from the Air Force,

pursuant to the “up o. out” requirements of 10 U.S.C. §§ 627

and 631 (1988) and Air Force Regulation (AFR) 36-12 (1

October 1984)?

* 10 U.S.C. § 627 (1982) provides (in pertinent part):

[a]n officer . . . [who] is considered but not selected for

promotion by a selection board. . . shall be considered to

have failed of selection for promotion.

10 U.S.C. § 631(a)(1982) provides (in pertinent part):

(a). . . each officer of the . .. Regular Air Force . . . who

holds the regular grade of first lieutenant and has failed of

selection for promotion to the regular grade of captain for

the second time . . . whose name is not on a list of

officers recommended for promotion to the next higher

regular grade shall--

(1) be discharged . . . not later than the first day

of the seventh calendar month beginning after

the month in which the President approves the

report of the board which considered him for

the second time... .

* AFR 36-12 (1 October 1984), paragraph 3-20, reads:

Reserve Officers on the Active Duty List Not promoted to the

Next Higher Grade

Reserve officers in the grade of first lieutenant,

captain, or major who fail selection for promotion to

the next higher grade for the second time must be

released from extended active duty no later than the

last day of the sixth month after approval of the

report of the board which considered them for the

second time ....

On September 26, 1984, after the decision of the first

selection board, plaintiff applied to the AFBCMR to request

that his Officer Effectiveness Report (OER) for the period

July 3, 1983 to January 2, 1984 be voided and removed from

his records, and that the nonselection recommendation of the

CY 84B Board be voided, on the grounds that his

supervising and rating officials had treated and rated him

unfairly. The records submitted to the AFBCMR included

numerous letters from other officers to substantiate his claim

that he was unjustly placed in a “no win” situation as Chief

of *’ersonnel Utilization during that period and was “set up”

as a “scapegoat” for longstanding deficiencies in the

command. (The contested OER rated his promotion

potential 2-2-2, whereas Mr. Porter’s most recent OERs

commencing in October, 1980, consistently ranked him at

the top of the scale in almost all rating categories and at 1-1-

1 for promotion potential.)

On August 22, 1985, the Assistant Secretary of the Air

Force, on behalf of the Secretary, accepted the AFBCMR’s

conclusion that “the applicant’s contentions [are] well

supported by statements from personnel knowledgeable of

applicant’s character and integrity, his leadership and

management skills, his professional qualities, his ability and

potential for greater responsibility [which] . . . are sufficient

to overcome the rationale expressed by the Air Staff [that

Mr. Porter would not have been promoted in any event],” see

defendant’s exhibits (DX) at 143, and ordered that: the

January 2, 1984 OER be declared void and removed from his

record; the CY 84B and CY 85A selection boards’

recommendations be voided; and Special Selection Boards

(SSBs) sitting for the CY 84B and CY 85A boards

reconsider plaintiff for promotion to the rank of captain.“

* 10 U.S.C. § 628(b)(2) (1982) (in pertinent part) requires an SSB to

evaluate the record of the officer being reconsidered by considering his

Ce ee ee

OS RB sa GK PSMA BES REA Cetin Whey

ia BD erat ve

The SSBs convened on March 24, 1986 to sit for the CY 84B

and CY 85A boards determined that Mr. Porter would not

have been selected for promotion by either board.

Through, inter alia, a November 17, 1987 request under the

Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1988),

and an April 18, 1988 conversation with the captain heading

the SSB staff appeals section (Mr. Porter was authorized to

tape the conversation, and transcribed and appended it to his

application to the AF BCMR), Mr. Porter attempted to

ascertain the basis for these passovers. He was informed that

the cut off scores for the CY 84B and CY 85A boards had

been destroyed and that “this information does not exist,” see

DX at 73; that the records of selected and nonselected

officers who met the boards were privilege and exempt from

disclosure under FOIA, 5 U.S.C. § 552(b)(2), (5), and (6)

record as it “would have appeared,” if corrected, “to the board that

considered him,” and by comparing that record “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.”

The sampling consists of the records of the officers whose records

received scores identical to the cut-off score (the so-called “gray zone”

records at the score at which the quota was filled). The records of all the

officers in the gray zone are rescored to determine which will make up

the remainder of the quota. The government states that the practice (it

apparently is not set out in regulations or other published guidance) is for

an SSB to be provided—from one of the panels before the original board

(€.g., the most representative pan

and AFR 12-30, par. 10b, e and f, and that their disclosure

“would interfere with the congressional mandate under 10

U.S.C. § 628° and AFR 36-89.” DX at 72.

On March 11, 1988, Mr. Porter applied again to the

AFBCMR for the correction of his record, alleging:

prejudice before the SSBs from the gap created by removal

of the voided OER; that his duty titles were incorrect both on

his June 1984 OER and on his Officer Selection Brief

(OSB), and that, as a consequence, his duty as Chief,

Personnel Utilization (CPU) was not reflected anywhere on

his record before the SSBs; and that a Letter of Evaluation

(LOE) dated March 14, 1984, attached to an OER dated

November 16, 1984--and written by the same reviewer who

wrote the voided OER--repeated the substance, and thus

perpetuated the negative effect, of the removed OER.°

Mr. Porter disputed whether his records had been compared

with those of the appropriate officers considered by the CY

84B and CY 85A boards as required by 10 U.S.C. § 628, see

supra note 4, since he had been told those officers’ records or

scores did not exist or were destroyed.

He also requested that his records be compared with all

officers considered for promotion by the CY 84B and CY

85A boards (not just those in the “gray zone”).’ As evidence

of improper consideration by selection boards, he alleged

> See supra note 4.

° This LOE thus appears not to have been before the CY 84B selection

board; it is not clear whether it was before the CY 85A board. It appears

not to have been in the record before the 1985 AFBCMR.

’ This request is beyond the AFBCMR’’s or this court’s power to grant,

since it conflicts with the statutory requirement that his record be

compared with a “sampling” of the officers selected and nonselected by

the original board. See 10 U.S.C. § 628; supra note 4.

OE —

CEA BRE) a ce Sa eeoree:

that a lieutenant whose records fluctuated more than his was

selected for promotion to Captain.

He demanded “reinstatement” at the rank of captain, back

pay and allowances at that rank, and, upon reinstatement,

removal of a May 1985 OER .®

. ‘ 4 4 Pee eT ee

AVES aA RE ISBELL it ia ah i i ot Sa

The AFBCMR denied Mr. Porter’s application on February

10, 1989, by decision dated April 24, 1989, concluding: “as

we have not found that the [SSBs] acted improperly or on

erroneous information, we have no basis to recommend that

their decisions be set aside.” On August 30, 1990, the

AFBCMR also denied his request for reconsideration.

Bea Re

Wn LR Bien al

aia,

nats:

: Plaintiff's voluminous pro se complaint in this court, filed on

March 12, 1991, repeats most of the allegations in his

application to the AFBCMR, and essentially alleges that the

AFBCMR’s action on his application was arbitrary and

: Capricious.

Mr. Porter seeks damages of $20,559,799 33, consisting of

active duty wages and medical benefits (apparently at the

rank of captain) until his projected retirement, forty years of

5 retirement wages at the rank of captain, nominal damages of

$5,000,000.00, compensatory damages of $6,000,000.00 and

F punitive damages of $7,000,000.00, plus taxes on “all

; monies received” in this court, plus attorneys’ fees, and a

} jury trial.’

)

$ * The government is granted summary judgment on this claim because

i plaintiff has submitted no basis for controverting the AFBCMR’s

; determination that the May 1985 OER was not a matter of record before

: the SSBs.

: ” This court cannot award “nominal,” compensatory, or punitive

. damages. See Nortz v. United States, 294 U.S. 317, 327 (1935) (in

: employee pay cases this court cannot award nominal damages); Garner v.

United States, 230 Ct. CL 941, 943 (1982) (no authority to award

Punitive damages); United States v. Severin, 99 Ct. Cl. 435, 443 (1943)

Discussion

Jurisdiction

This court has jurisdiction under the Tucker Act, 28 U.S.C. §

1491(a)(1) (1988), to render judgments for pack pay due to

unlawful separation based on the statute mandating the rate

of pay for the position from which the employee is

wrongfully discharged, i.e., the plaintiff's statutory

entitlement, but for the illegal separation, to that pay. See

United States v. Wickersham, 201 U.S. 390 (1906); Engels

v. United States, 678 F.2d 173, 175 (Ct. Cl. 1982). (In Mr.

Porter’s case, the pay mandating statute is 37 U.S.C. §§ 203

and 204(a)(1) (1988).)

In cases under its Tucker Act jurisdiction, the court also, to

provide an entire remedy and complete the relief afforded by

the judgment, may issue orders directing restoration to office

or position and correction of records, or remand to the

administrative or executive body or official. 28 U.S.C.

§ 1491(a)(2)

(no authority to award nominal damages). Nor can it award retirement

benefits. See Austin v. United States, 206 Ct., Cl. 719, cert. denied, 423

U.S. 911 (1975) (court may not order relief beyond the duration of a

service member’s enlistment).

Plaintiff's request for a trial by jury also is beyond the power of this

court to grant. By filing a complaint in this court, a plaintiff is deemed to

have waived any Seventh Amendment right to a jury trial. The nonjury

review process of this court is constitutionally permissible as a condition

of the sovereign’s waiver of its sovereign immunity. See Seaboard

Lumber Co. v. United States, 903 F.2d 1560, 1566-68 (Fed. Cir. 1990)

(citing Murray’s Lessee v. Hobokan Land & Improvement Co., 59 U.S.

(18 How.) 272, 284 (1855)). See also Lehman v. Nakshian, 453 U.S.

156, 160 (1981) (Seventh Amendment right to trial by jury does not

apply in actions against the Government.).

Standard of Review

Summary judgment is granted when there is no genuine issue

of material fact and the moving party is entitled to judgment

as a matter of law. Anderson v. Liberty Lobby. Inc., 477

U.S. 242, 247-48 (1986). The moving party must show that

there is an absence of evidence to support the non-moving

party’s case. See Sweats Fashion, Inc. v. Pannil Knitting

Co., 833 F.2d 1560, 1563 (Fed. Cir. 1987), citing Celotex

Corp. v. Catrett, 477 U.S. 317, 325 (1986), cert. denied, 484

U.S. 1066 (1988).

In considering defendant’s motion for summary judgment,

the court must view the evidence , and draw inferences

therefrom, in the light most favorable to the nonmoving

party, Mr. Porter. See United States v. Diebold, Inc., 369

U.S. 654, 655 (1961); Olde Tyme Foods. Inc. v. Roundy’s,

Inc., 961 F.2d 200, 202 (Fed. Cir. 1992).

In opposing the motion for summary judgment, Mr. Porter,

as the non-movant, may not rest on his conclusory pleadings,

but must “proffer countering evidence sufficient to create a

genuine factual dispute,” Sweats Fashion, 833 F.2d at 1562.

The proffered evidence must be sufficient for the trier of fact

reasonably to find in favor of the non-movant. Anderson,

477 US. at 249.

Scope of Review

Mr. Porter must overcome the rebuttable presumption that

the “administrators of the military, like other public officers,

discharge their duties correctly, lawfully, and in good faith,

Arens, 969 F.2d at 1037 (citing Sanders v. Unites States, 594

F.2d 804, 813 (Ct. Cl. 1979)), by demonstrating by cogent

and clearly convincing evidence that the AFBCMR acted

arbitrarily, capriciously, contrary to law, or that its

determination was unsupported by substantial evidence.

Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992)

(citing Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir.),

cert. denied, 479 U.S. 853 (1986). See also Chappel v.

Wallace, 462 U.S. 296, 303 (1983). A court cannot

substitute its judgment for the military’s when reasonable

minds could reach differing conclusions based on the same

evidence. Heisig v. United States, 719 F.2d 1153, 1156

(Fed. Cir. 1983).

Correction of Records by AFBCMR

Record correction may be required when the plaintiff makes

out a prima facie case that there was a significant error in his

record before a selection board and that there was a “causal

nexus” between that error and the board’s nonselection. See

Engels, 678 F.2d at 176; Hary v. United States, 618 F.2d

704, 710 (Ct. Cl. 1980).

Two questions are relevant when determining whether there

is a “causal nexus” between an alleged error in the record

before a selection board such as to warrant reversal of the

Secretary’s decision (accepting a correction board

recommendation) to uphold the selection board’s

nonselection recommendation: (1) did the error make

plaintiff's record appear worse than it otherwise would have

appeared, and (2) if so, is it unlikely that he would have been

promoted in any event. Engels, 678 F.2d at 176; Hary, 618

F.2d at 710.

On the first question, plaintiff has the burden of proving that

there existed errors in the record or other factors adversely

affecting the rating process that had no business in the rating

process, or a clear violation of a specific objective of a

statute or regulation, or a misstatement of a significant hard

fact. Hary, 618 F.2d at 708. Once a plaintiff presents

enough evidence to establish the likelihood of causation, the

burden shifts to the defendant to show that, even without the

errors, plaintiff would not have been promoted. Engels, 678

F.2d at 177-78.

The AFBCMR’s function is authorized by 10 U.S.C. §

1552(a) (1988), which provides that “[{t]he Secretary of a

military department, under procedures established by him

and approved by the Secretary of Defense, and acting

through boards of civilians of the executive part of that

military department, may correct any military record . . .

when he considers it necessary to correct an error or remove

an injustice.” The department may pay any claim for

pecuniary benefits found to be due on account of the

claimant’s service in the military as a result of correcting a

record under § 1552(a). See 10 U.S.C. § 1552(c) (1988).

The Air Force regulations establishing and governing the

operation of the AFBCMR are set out at 32 C.F.R. § 865.1 et

seq. (7-1-85), and at AFR 31-3, § B, par. 9a (31 May 1985).

They provide (in pertinent part):

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.

32 C.F.R. § 865.2(b). Also:

The Board shall have jurisdiction to review and

determine all matters properly brought before it,

consistent with existing law.

32 C.F.R. § 865.2(c).

“[E]ach application [for correction] and the available

military or naval records pertinent to the corrective

action requested” “will be reviewed” by the

AFBCMR in order to make its determination as to

what AFBCMR action is required. AFR 31-3, § B,

par. 9A. (Emphasis added).

The AFBCMR is required by its procedural regulations to

make written determinations, which “will include . . . all

facts of record, and statement of ground(s) upon which the

Board’s determination is based.” 32 C.F.R. § 865.7(d) (in

pertinent part) (emphasis added).

While Congress under 10 U.S.C. § 1552 has conferred broad

powers on the Secretary of the Air Force to remedy errors

and injustices through the AFBCMR, the statute imposes “a

duty as well as the power to afford servicemembers proper

relief.” See Sanders, 594 F.2d at 812. Notwithstanding his

broad discretion in interpreting statutory requirements, the

Secretary is bound by any regulations he promulgates

thereunder. See Voge, 844 F.2d at 779.

The Secretary of the Air Force must correct any military

record if it contains a legal error consisting of his failure to

comply with the regulations he promulgates. See Sargisson

v. United States, 913 F.2d 918, 921 (Fed. Cir. 1990); Voge,

844 F.2d at 779 (“It has long been established that

government officials must follow their own regulations ...”).

This court has authority to review secretarial decisions made

through the AFBCMR. Sargisson, 913 F.2d at 920.'°

Congress has long contemplated that a court would be permitted to

review the actions of boards of correction. The court in Sanders stated:

Action under 10 U.S.C. § 1552, except when procured by fraud, was

made final and conclusive on officers of the United States, but not

on the courts of the United States. A specific provision limiting

review was stricken in order to permit judicial review “under

appropriate circumstances.” Hearings Before a Subcommittee of the

House Committee on Armed Services on H.R. 1182, 82d Cong., Ist

Sess. 369, 377, 391-93, 398, 401, 450 (1951) .... Indeed, “[t}he

fact that this court has the jurisdiction to review actions of military

SLC in RE RTI

Lae eee

Plaintiff's assignments of errors by the AFBCMR

|. Improperly constituted SSBs

Mr. Porter’s allegation that the SSBs were not properly

constituted is based on a misapprehension as to the

applicable statute. 10 U.S.C. § 8362 (1988), requiring half

the board to be reserve officers, is not applicable to reserve

officers on the active duty list, as was Mr. Porter. See 10

U.S.C. § 8396 (1988).

One member of the SSB board was in the reserves, as Mr.

Porter has conceded. Thus, the applicable statute, 10 U.S.C.

§ 266 (1982), and the regulations thereunder,'' 32 C FR.

Part 41, App. A, Part 3C 5A.2 (1986), appear to have been

met.

However, even if there were a violation of 10 USC. § 266,

this issue was raised by Mr. Porter for the first time in this

litigation, in his “Notice of Discovery” filed shortly before

defendant’s motion for summary judgment. Because the

issue was not raised to the AFBCMR, it may not be the basis

for a decision by this court. See Doyle v. United States, 599

corrections boards is not disputable (Citations omitted.) This was so

even before our authority to correct records was made explicit in

1972 by amendment of 28 U.S.C. § 1491. (Citations omitted.)

Sanders, 594 F.2d at 810.

" 10 U.S.C. § 266 (1982) requires “at least one member of the Reserves,

with the exact number . . . determined by the Secretary concerned in his

discretion.”

The regulations thereunder, at 32 C.F.R. Part 41. App. A, Part 3C

5a.(2) (1986), provide:

If the respondent is an enlisted member of a reserve component or

holds an appointment as a reserve commissioned or warrant officer,

the Board shall include at least one Reserve officer as a voting

member. Voting members shall be senior to the respondent’s

reserve grade. See 10 U.S.C. 266.

F.2d 984, 100 (Ct. Cl. 1979), cert. denied, 446 U.S. 982

(1980) (“a party cannot raise an issue on appeal to a court

when it failed to raise it before an adminisirative agency

competent to hear it.”); Tannehill Il v. United States, 18 Ct.

Cl. 296, 302 (1989) (applying the rule in Doyle to the

AFBCMR).

ya Errors in the record

a. Gap in record

A gap in a record resulting from the removal of an OER may

be a basis for invalidating a selection board decision based

on that record, see, e.g, Sanders, 594 F.2d at 314. However,

it is not considered harmful if the gap is explained. Yee v.

United States, 512 F.2d 1383, 1386 (Ct. Cl. 1975). Plaintiff

does not dispute that a page was inserted in his record before

the SSB to explain the gap created by removal of the January

1984 OER, and conceded at a status hearing held in August,

1992, that it was an “adequate explanation,” see id. at 1386-

88.

b. LOE reiterating voided OER

Mr. Porter contended to the AFBCMR that a March 14, 1984

LOE “indicate[d] problems which existed from the last

evaluation period” (the OER for which was voided by

recommendation of the 1985 AFBCMR). See supra note 6.

Mr. Porter’s August 16, 1988 letter, responding to the Air

Staff reports to the AFBCMR, also states that the LOE

indicates problems in the previous rating period (for which

the OER was voided) and that the LOE “would hurt [his

record] just as much as the OER being in the records.”

The March 14, 1984 LOE covering the period January 3,

1984 to March 11, 1984, which immediately follows the

period of the voided OER, was written by the same officer

who wrote the voided OER. The LOE was attached as a

“supplemental evaluation sheet” to the November 16, 1984

OER, in which Mr. Porter received the highest ratings in

every Category, including “1-1-1” for promotion potential.

The LOE sets out Mr. Porter’s duty title during this period as

Chief, Career Progression (CCP), a post he assumed in

December 1983, and, in one eleven-line paragraph, states (in

pertinent part):

Mr. Porter has continued to maintain his duty

performance during this reporting period. With

continued guidance and assistance his judgments and

decisions are effective. Although he was recalled

from leave because of an omission in tying loose

ends together in his section prior to taking his leave,

he took the initiative once it was brought to his

attention. Recent manning problems in one of his

work centers required that he roll up his sleeves and

become a technician... . Lt. Porter seems to be

putting forth a concerted effort to improve his writing

ability and an overall improvement has been noted

during this time frame... .”

DX at 12 (Vol. III of III).

The comments on the voided OER, which ranked his

promotion potential as “2-2-2,” and lowered rating items 2,

3, 8, from the highest level, “well above standard,” which he

received on his previous and subsequent OERs, to the third

highest level, “meets standard,” included:

l. At item 2, Judgment and decisions:

“Adequate.” “With guidance and ssistance,

renders consistently accurate and sound

decisions.”

2. At item 3, leadership: “Responsibility and

initiative usually displayed under pressure.

Takes action promptly after being assured he

is right. Tries to be fair and consistent with

subordinates.”

3. At item 8, Written communications:

“Sufficient. Written work usually requires

editing... .”

Clearly, the March 1984 LOE refers back to the period of the

voided OER (during which both the “omission in tying loose

strings together” and the “manning problems” occurred). It

also clearly repeats (verbatim at item 2) the negative

comments in the voided OER regarding his judgment and his

writing ability, and makes other comments “damning him

with faint praise.” As Mr. Porter contends, the LOE appears

to signal the very problems that the Secretary’s order voiding

the January 1984 OER was supposed to remove from

promotion board consideration. The LOE errors thus appear

equal, in significance and materiality, to the errors on the

voided OER.

The only explanation provided by the AFBCMR for its

decision that Mr. Porter was not entitled to have the LOE

removed was because Mr. Porter’s August 16, 1988

response to the Air Staff's report (recommending denial of

relief) “did not provide any data which substantiates that the

LOE is in error or unjust” and because “the military record

... Teveals no irregularities causing an injustice to the

applicant.”

eS ee te eS ed

This explanation ignores the ample evidence of error or :

unjustness revealed by the foregoing textual comparison of

the contents of the LOE with the very similar OER that the

1985 AFBCMR concluded was “in error or unjust.” More

discussion than the conclusory statement set out above (or

the conclusory statements in the Air Staff opinions) is

needed to withstand review of this AFBCMR determination

under an arbitrary or capricious or “substantial evidence”

standard of review and to comply with the requirement of 32

C.F.R. § 865.7(d) (1985) (AFBCMR’s determinations “will

include . . . statement of ground(s) upon which determination

is based.”’).

c. Erroneous duty history

Mr. Porter asserts that he was prejudiced by an erroneous

duty history because his officer selection brief (OSB) before

the SSB, which contained his duty assignment history,

eliminated his promotion as Chief Personnel Utilization

(CPU), from June 13, 1983 until October 11, 1983, and

showed him instead as Chief, Customer Assistance Section

(CCAS) until July 3, 1983 and as “Special Assistant to

Chief, CBPO” (SAC/CBPO) from July 4, 1983 until

December 11, 1983. DX at 118,!?

He claims, however, that he was not appointed as

SAC/CBPO until October | 1, 1983--and that he served as

such for only two months, until December 11, 1983.

He also claims that his July 2, 1983 OER should have shown

him as CPU, rather than as CCAS, his previous position,

because he left the CCAS position by June 13, 1983.

DA PAM 600-3 4.9g Special Selection Boards states that “SSBs

generally are not approved because of erroneous entnes or omission on

the Officer Record Brief “because the entitlement in AF 624-100 submit

a letter to the board is “considered sufficient Opportunity to overcome

minor administrative deficiencies.” The errors alleged by Mr. Porter do

not appear minor, however, and his previous attempts to correct these

errors, commencing with his application to the 1985 AFBCMR, have

been unavailing

In his complaint, as in his August 16, 1988 letter responding

to the AFBCMR’s request for comments on the 1988 Air

Staff letters, Mr. Porter claims that the omissions are

significant (in his experience as a personnel officer) because,

whenever the promotion board reviews a duty history, “they

look for progression and diversity, not digression” and they

will note a problem from a position change from “section

chief” to a “special assistant.” He maintains that the LOE is

a “key indicator” to the SSB of a prior problem.

The existence of these errors is clear from the record before

the 1983 AFBCMR, which also was before the 1989

AFBCMR, and appears significant because it omitted all

mention of his actual, subsequent (presumptively higher

level) position as CPU during that period, and showed that

he served as a (lower level) special assistant for three months

longer than he did.

The AFBCMR determination on this issue was as follows:

insufficient relevant evidence has been presented to

demonstrate the existence of probable error or

injustice. The evidence relating to the applicant’s

allegations of incorrect duty titles does not overcome

the advice of the Air Staff indicating compliance with

regulatory provisions.

The Air Staff advice to the 1988 AFBCMR states only the

legal rule that an OER must show the duty titled held on the

report period close date. However, its conclusion -- that the

title used on Mr. Porter’s OER closing on July 2, 1983 was

correct under that rule--begs the very question raised by Mr.

Porter, because it assumes--without setting out any

explanation or grounds therefore--that his duty title on that

date actually was CCAS, rather than CPU.

oe i os Gite Raa “ho adie hk et bates so

Ba aig 0) ab

Ce eR ee NN a

Mr. Porter, notwithstanding the Air Staff letter, does not

appear ever to have contended that the OER should not be

dated on the close date, July 2, 1983, or that it should show a

position other than that held on the close date. Rather, he

alleges classic, factual record errors--that his correct duty

title on July 2, 1983 was not CCAS, but CPU, and that he

served as CPU from June 3, 1983 to October 11, 1983.

The evidence in the record before the AFBCMR that Mr.

Porter’s OSB and OER erroneously omitted his duty as CPU

from June 13 to October 10, 1983 is as follows:

1. Mr. Porter’s application to the 1985

AFBCMR (which also was before the 1989

AFBCMR) states: “I would report to Cap.

Foley, 8 Oct. 83, at 7:30 hours. It was

determined that I would no longer be

DPMU;” and “After my assignment back to

the CBPO on 8 Oct. 83, I was assigned as the

Special Assistant to the Chief, CBPO, Capt.

Foley.” See DX at 514, 515.

2 Air Staff report #MPCAOB, dated December

1984, from Lt. Col. Douglas G. Barclay to the

1985 AFBCMR, states that Mr. Porter was

not in fact designated SAC/CBPO until

October 1983, and concedes both the

backdating alleged by Mr. Porter and the

effect of such backdating on his duty record.

The Air Staff letter states:

The AF Form 2095 at attachment two

shows the applicant was designated as

assistant to the CBPO Chief on 11

October 1983. However, it is

interesting to note the change [from

CPU to SAC/CBPO] was backdated to

3 July 1983, the effective date of

personnel utilization duties. Although

not improper, backdating the change

to 3 July 1983 essentially voids any

record of the applicant in the position

of Chief Personnel Utilization. We do

not know why this was done and the

applicant does not comment on this

matter. We can only conclude the

change was backdated in the interest

of the applicant to “camouflage” the

fact that he had been relieved of

duty."

DX at 120. (Emphasis added.)

The official record before the AFBCMR, as

submitted by the defendant, contains two

personnel action forms signed by Mr. Porter

as CPU, one for Mr. Donald Deramus, on

June 13, 1983 (DX at 663, 702) and one for

Mr. Theodore Dye, on June 28, 1983 (DX at

664, 703). According to these forms, Mr.

Porter was not at CCAS on July 3, 1983, as

the OER and OSB would indicate.

Finally, Mr. Deramus’ statement on Mr.

Porter’s behalf, submitted to the 1985

AFBCMR and thus in the record that

apparently was before the 1988 AFBCMR,

confirms that Mr. Deramus began working

'3, Because the Air Staff opinion recommended that Mr. Porter’s January

1984 OER not be voided, and that recommendation was rejected by the

1985 AFBCMR, it is not clear whether the 1985 AFBCMR agreed with

or accepted any portions of the opinion. Whether the admitted

backdating is not “improper” under Air Force rules and regulations is an

issue for the AFBCMR, in the first instance, to decide. See infra note 14.

Sh aR hh iN i sali

under Mr. Porter’s supervision on June 13,

1983. DX at 732.

Notwithstanding ample evidence in the record before the

AFBCMR that Mr. Porter’s factual contentions are correct,

and that his records before the SSB were not (there is only

one piece of (equivocal) evidence to the contrary--a copy of

a record with a typed-in, apparently retroactive, correction

(which the aforementioned Air Staff letter admitted was

“backdated” to “camouflage” the facts)),'* his contentions

simply have never been addressed, either by the Air Staff

opinion, or the AFBCMR.

Given the absence of any written facts or grounds to support

the AFBCMR’s determination that Mr. Porter’s duty records

omitting his duty as CPU were correct and the ample

evidence in the record before the AFBCMR to the contrary,

this court cannot grant summary judgment that the

AFBCMR did not act arbitrarily or capriciously or that there

is substantial evidence to support its determination

dismissing Mr. Porter’s allegations of record errors.

The pleadings before this court also present no evidence (or

rationale) to support the AFBCMR’s determination that the

duty descriptions in Mr. Porter’s record before the SSB were

not erroneous.

In fact, the government does not explicitly argue that they

were not erroneous. Nor does it argue that these errors were

“insignificant.” Instead, echoing the disregarded Air Staff

opinion to the 1985 AFBCMR, the government contends that

‘* The record with the altered duty date, showing the date of June 13,

1983 crossed out and replaced by July 3, 1983 date, is at DX at 662.

According to Mr. Porter, records cannot be corrected in this fashion;

rather, a new form, making the correction, must be added to the record.

There is no such form in the records provided by the defendant.

the “overall effect” of the errors was harmless, and may even

have been “advantageous” to Mr. Porter, because they

“camouflaged” the fact that he had been relieved of his duty

as CPU. Therefore, the government contends, Mr. Porter has

not sustained his burden of showing that there was a causal

“nexus” between the errors and his nonpromotion, citing

Engels, 678 F.2d at 177 and Hary, 618 F.2d at 709.

Defendant, however, misapprehends the proper allocation of

burdens of proof on this issue. Once plaintiff has

demonstrated that a significant error exists, Le., a

“misstatement of significant hard fact” or an error that shows

his record to be “something less than ‘substantially complete

and fair,” Hary, 618 F.2d at 709, (citing Sanders, 594 F.2d

at 814)--and this court cannot conclude as a matter of law on

this record that these errors (the erroneous duty records of

the presence of the LOE) were not significant--the burden

shifts to the government to establish that the error(s) in fact

were harmless, i.e., did not affect the nonselection, e.g.,

because plaintiff would not have been selected anyway. See

Engels, 678 F.2d at 175 (“end-burden of persuasion falls to

Government to show harmlessness” once plaintiff makes

prima facie case of an incomplete or inadequate military

record before a promotion board, because defendant has “far

greater knowledge of the facts, statistics, and operations of

the promotion selection process [and] is in much better

position to produce evidence and materials showing the lack

of adequate nexus.”); Sanders, 594 F.2d at 816 (“the ultimate

burden should be on the party whose error and obfuscation

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

Not having conceded the OER or OSB errors, neither the

AFBCMR nor the government, understandably, has made

any attempt to present facts or grounds sufficient for

determining that, even with the errors, the SSB would have

reached the same decision regarding Mr. Porter’s likelihood

of promotion by the original selection boards.

This opportunity may be presented on remand. However, the

government’s burden would appear to be somewhat heavy in

this case, given the high proportion of selections (ninety-five

percent) authorized io be made by each of the two original

selection boards and the apparently high caliber of Mr.

Porter’s record before (and after) the period of the prejudicial

LOE and OER."*

Even if, as government counsel conjectured, there was

significant inflation of officers’ OER ratings in the years at

issue, neither this evidence nor any evidence that,

notwithstanding such ratings, Mr. Porter’s record placed him

in the bottom five percent of his promotion class appears to

have been before the AFBCMR.*°

As the evidence in the record of the government’s standard

form correspondence to Mr. Porter at the time of his

nonselections strongly implies, the duty assignment errors

alleged by Mr. Porter relate to significant evaluation factors.

See DX at 115 (government letters to Mr. Porter announcing

his nonselection stating that “performance, breadth of

experience, job responsibility and professional competence”

were factors other than OERs that were considered by the

selection boards in determining an officer’s potential for

performance); cf. DA PAM 600-3, 45-1 OER System

'’ His OER promotion potential ratings, for example, were consistently

at the highest level (1-1-1) from his October 1980 OER forward and on

only ten percent of the ten rating factors on his OERs for that period did

any rating drop below the top level, “well above standard” (and then

never below the “above standard” level). Further, according to Mr.

Porter, only two percent of the lieutenants considered for promotion to

the rank of captain have complete the Marine Corps Command and Staff

College, as he did. See DX at 104.

'® ‘There has been no suggestion that Mr. Porter was not “fully qualified”

for promotion, but only that he was not among the ninety-five percent of

his promotion class “best qualified” for promotion.

Overview (10 July 1984 Update) (in pertinent part)

(emphasis added) (Officer qualifications “focus on the

officer’s background in terms of his experience and expertise

and include such items as specialty qualification, successful

performance in demanding positions, civil and military

schooling and physical profile.’’)

Further, because the SSB’s and the AFBCMR’s

“harmlessness” determinations would require consideration

of plaintiff s comparative position before the selection

boards,” see Hary, 618 at 710, it is difficult to understand

how either board could make such a determination without

some evidence regarding the records or scores of the officers

with whom Mr. Porter was compared, even in summary

form. However, as stated before, there is no record before

the court that any such evidence was presented to the

AFBCMR. Nor is there any record of how the SSB ensured

that the record “samplings” used, as required by 10 U.S.C. §

628, were in the gray zone for the original boards.

This court also cannot conclude that defendant’s argument

that Mr. Porter actually was “benefitted” by not having his

relief from duty appear on his record constitutes substantial

evidence to support an AFBCMR determination of “harmless

error.” Not only was this issue not raised to or considered by

the AFBCMR, it was not set forth as written grounds for its

determination, as required by its governing regulations. See

32 C.F.R. § 865.7(d) (1985).

The government’s after-the-fact argument of harmlessness

does not appear sufficient to support a legal determination to

that effect because it assumes that the error of omitting a

positive record may be fully excused by another error--that

of omitting a negative record. In other words, two errors

make it right.

However, there is no authority in 10 U.S.C. § 552 or the

regulations thereunder for not correcting one error merely

because its effect may be “offset “ by another. Cf. Weiss v.

United States, 408 F.2d 416, 419 (Ct. Cl. 1969) (“Ifa

Service Secretary place[s] before the Board an alleged

officer’s record filled with prejudicial information and omits

documents equally pertinent which might have mitigated the

adverse impact of the prejudicial information, then the record

is not complete and it is before the Selection Board other

than as the statute (the predecessor to 10 U.S.C. § 615(3),

requiring presentment to the boards of “the pertinent records

. of each officer whose name is submitted to the board”

requires.”’).

Rather, the government’s harmlessness argument would

appear to eviscerate the purposes of the statute mandating

correction of records, 10 U.S.C. § 1552. (There also is no

explanation from the government of the basis for its

assumption that the relief from duty, if prejudicial and

incorrect, as well as the erroneous LOE and OSB duty

records, could not both have been corrected without

sacrificing Mr. Porter’s entire record of service at the CPU

post, which appears to have been exemplary, albeit

performed under most difficult circumstances. )

3. Improper “gray zone” comparison

Plaintiff has conceded that he has no direct evidence that the

SSB failed to compare his record, as required by 10 U.S.C. §

628 and AFR 36-5 93-6f(4) (1991), with that of the officers

in the “gray zone” for the CY 83B and CY 84A boards. See

supra note 4.'”

” AFR 36-5 § 3-6f(4) (15 November 1991), like 10 U.S.C. § 628,

provides, in pertinent part: “The officer’s record will be compared with a

sampling of records of officers of the same competitive category who

were and who were not selected by one or more of the Original boards.”

The fact that one of his original selection boards may have

promoted an officer less highly qualified than he, even if true

(defendant has not conceded that the officer exists or, if so,

that her official records are accurately represented by

plaintiff), is not presumptive evidence of impropriety by the

SSB sitting in its stead. '

On the other hand, the AFBCMR did not rebut, or even

address, Mr. Porter’s contention, that there no longer existed

any scores indicating which officers were in the gray zone

before the original selection boards, e.g., because these were

destroyed.'” This contention is supported by government

'® Further, under the regular approved procedures by which

selection boards make their decisions, and, in the ordinary

course of events, a slightly more qualified candidate in the same

pool may be nonselected by a different pancl of the selection

board considering that pool. That is because cach selection

board is divided into panels, cach of which receives a random

but proportionate share of the total pool, and a proportional

quota of the total promotion quota (ninety five percent in this

case). Because, statistically, the panels cannot be identical, one

panel's quota necessarily will be reached at a lower or higher

ranking than another. Thus, as plaintiff conceded at oral

argument, of two candidates with identical records, one may be

selected and the other nonselected simply because they were

before different panels of that board. Similarly, if the

“representative” pancl used by the SSB sce supra, note 5, was

different. a candidate with a record identical to that of an officer

who was recommended by an original selection board may

Icgitimately not be recommended by the SSB.

'° The Air Force also relied on Freedom of Information Act exemptions

in denying Mr. Porter's requests for the records with which his was

compared by the SSB. DX at 72. However, the denial does not explain

why the release of redacted records (or the “composite” assessment for

each officer requested by Mr. Porter) was not possible without

jeopardizing the personal privacy and deliberative process protections of

the relied upon exemptions in (b)(2), (5) and (6) of the Act. 5 U.S.C. §

552(b)(2), (5), (6). Certainly, in other military passover discharge cases,

statements in the record before the AFBCMR provided to

this court by the government in the appendix to its motion

for summary judgment.”’

While the AFBCMR concluded that, “On the basis of the

evidence, it appears that ... the board members fulfilled their

obligation to evaluate [Mr. Porter’s] record against a

sampling of the records of officers who were and were not

selected by the regularly scheduled boards,” (emphasis

added), it did not identify any evidence supporting this

conclusion. The government also concedes that the records

before the AFBCMR did not include any such evidence (i.e.,

no transcript of the SSB’s deliberations or any record (or

summary) of the officers’ records that were compared with

Mr. Porter’s or of their scores,”! or any other evidence, e.g., a

statement by the SSB that the SSB compared Mr. Porter’s

records to the records required by 10 U.S.C. § 628).

Similarly, in determining that Mr. Porter had “not provided

convincing evidence or arguments to show that his corrected

record was improperly evaluated,” DX at 100, the

the AFBCMR, or this court, has had before it, at least in summary or

redacted form the records of the officers with which the applicant's

records were compared. Sec, ¢.g., Hary v. United States, 618 F.2d 704.

710 (Ct. Cl. 1980); Etheredge v. United States, Cl. Ct. 736 (1985).

Exhibit A-6 to plaintiff s complaint, a December 4, 1987 response to

his FOIA requests for such records, states that the gray zone scores are

cxempt from disclosure and were destroyed and therefore “this

information does not exist.” See DX at 197-99. In a memorandum of his

tclephone conversation with Captain Debra L. Clark, a staff officer at the

SSB, DX at 77-79, she too states that the gray zone scores were

destroyed. The AFBCMR also did not address evidence that the OSBs

from the original boards were not microfilmed. DX at 148.

' The AFBCMR’s conclusion that no personal appearance was

necessary because of “the availability of the complete record,” (emphasis

added) is at odds with the government's concession that no gray zone

scores (or any evidence of the content of the records of those in the gray

zone) were included in the SSB records reviewed by the AFBCMR.

AFBCMR did not explain why the government’s statements

that the gray zone scores of those whose records were

required to be compared with Mr. Porter’s under 10 U.S.C. §

628 were “destroyed” or “did not exist” was not evidence of

improper evaluation or “convincing.”

The absence of any records before the AFBCMR that the

sampling required by 10 U.S.C. § 628 was considered by the

SSB also raises the question of whether the AFBCMR,

contrary to the requirements in the Secretary’s regulations,

reviewed “the available military records pertinent to the

correction action requested, 7’ as required by AFR 31-3, §B

par. 9a (31 May 1985).

Nor has the AFBCMR set out “facts of record or statement

of grounds” as required by 32 C.F.R. § 865.7(d) (1985), to

support its determination that those records were properly

evaluated by the SSB. See 32 C.F.R. § 865.7(d)(1985)

(AFBCMR’s determinations “will include ... all facts of

record, and statement of ground(s) upon which ...

determination is based (emphasis added).

The government asserts that the AFBCMR properly had

before it only Mr. Porter’s records before the SSB, because

the AFBCMR reviews [only] the record before the SSB of

the officer applying for correction of his record, to see if his

*2 The court is not prepared to conclude that the SSB board members’

certifications pursuant to 10 U.S.C. § 628 (c)(12) or a presumption of

administrative regularity constitute substantial evidence, notwithstanding

inconsistent statements by SSB staff, to support a determination that the

required records did exist and actually were considered by the SSB.

*> The government also has provided no explanation why the full record

statutorily required to be before the SSBs, i.¢., including records of

selected officers in the gray zone before the original selection boards

with which the SSB was required to compare Mr. Porter’s, see 10 U.S.C.

§ 628(b)(2), was not “available” or “pertinent” such that AFR 31-3, par.

par. 9a would not apply.

record was a “substantially complete and fair” representation

of his duty history. This assertion appears to ignore that the

AFBCMR’s review of the harmlessness of an error

necessarily must consider the records with whose the

officer’s statutorily was required to be compared by the SSB,

to determine whether the SSB’s conclusion that he would not

have been promoted in any event, Engels, 678 F.2d at 177-

78, was contrary to law or involved material error 24

Even if the government is correct in arguing that the

AFBCMR has no authority to review the SSB’s

harmlessness determination, it cannot argue that the

Secretary, on whose behalf the AFBCMR functions, has no

authority to review selection board decisions for error or

compliance with the law. See 10 U.S.C § 618(a) (requiring

the Secretary to (“shall”) return a report to a selection board

(or a subsequent selection board) if it “has acted contrary to

law or regulations”); see also AFR 36-5, §3-6d(2) (15

November 1991) (the grounds for reviewing the action of a

selection board are that: “(a) The action of the board that

considered the officer was contrary to law or involved

material error of facts or material administrative error, or (b)

the board did not have before it for its consideration material

information that should have been available had pertinent

Air Force Regulations and policies been complied with.”).

Conclusion

This Court recognizes that it must defer to the military in its

governance of its affairs. See Orloff v. Willoughby, 345

U.S. 83, 93-94, reh’g denied, 345 U.S. 931 (1953) (“judges

““ While the absence of Bray zone records or scores, which are necessary

to review an SSB’s determination of harmlessness, was not at issue

because the AFBCMR never made the antecedent determination that

there was an error or injustice in the record before the SSBs, these

records would appear to be highly relevant if. on remand, the AFBCMR

concludes that the LOE was unjust or the duty errors were material.

are not given the task of running the Army”); Voge v. United

States, 844 F.2d 776, 782 (Fed. Cir.), cert. denied, 488 U.S.

941 (1988) (“strong policy reasons compel courts to “allow

the widest possible latitude to the armed services in their

administration of personnel matters”) (citation omitted). It

also recognizes that there is a strong presumption that the

corrections boards faithfully and lawfully discharge their

duties. See, e.g, Arens, 969 F.2d at 1037; Hoffman v.

United States, 894 F.2d 380, 385 (Fed. Cir. 1990); Sanders,

594 F.2d at 813, and that a corrections board decision should

not be overturned absent cogent and clearly convincing

evidence. Arens, 969 F.2d at 1037; Wronke, 787 F.2d at

1576.

In this case, however, there seems to have been cogent and

convincing evidence before the AFBCMR that the records

presented to the SSB were incorrect as to Mr. Porter’s duty

record and that inclusion of the LOE was an error or injustice

comparable to the inclusion of the OER that was voided by

the Secretary upon recommendation of the 1985 AFBCMR.

The court, therefore, cannot, at the summary judgment stage,

and without the benefit of knowing the grounds therefor,

conclude that the AFBCMR’s determinations--that there was

no error as to his duty history or LOE, or that these errors

were insignificant or provided no causal nexus to his

nonselection, in that they did not make Mr. Porter’s record

appear worse--are supported by substantial evidence and not

arbitrary and capricious.

On this record, the court also cannot uphold a determination

(not made by the AFBCMR) that, even if these were errors

or injustices they would not have affected the original

selection boards’ nonselection decisions.

In deference to the role of the AFBCMR, however, the court

declines at this juncture to order back pay, a correction of

Mr. Porter’s record, reinstatement, or other relief. Cf.

ee en Taree

Sargisson, 913 F.2d at 922 (substantive merits of decision to

reinstate beyond the competence of the Claims Court and

non justiciable; Voge, 844 F.2d at 779, 780 (Claims Court

without jurisdiction to conduct substantive review of military

determinations entrusted to military, even indirectly, but only

to review for procedural errors. )

Instead, the AFBCMR is accorded another Opportunity to

support its determinations regarding Mr. Porter’s allegations,

as discussed above. These determinations shall be based

upon the record before the SSB,”° including the records with

” The court is not persuaded by, but need not reach at this time,

defendant's contentions, in response to the court’s May 29, 1992 order to

submit all of the records before the AFBCMR, that the entire record

before the SSB (specifically, the records of the Officers in the gray zone,

with whose records Mr. Porter’s was required to be compared) need not

(and may not) be provided to the AFBCMR, and need not be provided to

this court, because both are precluded by 10 U.S.C. § 618(f) from

reviewing such records. (10 U.S.C. § 618(f) provides: “[e]xcept as

authorized or required by this section. proceedings of a selection board

convened under § 611(a)... may not be disclosed to any person not a

member of the board.”)

Clearly, the Secretary must be deemed to be “authorized” under this

section (specifically, under subsection (a)(1) thereof), to review such

records in order to carry out his mandate in subsection (a)(1) to “review”

AFBCMR “reports.” See 10 U.S.C. § 618(a)(1) (1988) (Secretary “shall

review" reports of a selection board to determine whether the board “has

acted contrary to law or regulation or to guidelines” and make a

“determination” thereon.)

In fact, the authority of the AFBCMR to review in camera documents,

protected by the Privacy Act or other privilege or protection from

disclosure, was alluded to in a letter from the Deputy Inspector General

of the Air Force to Mr. Porter. denying him access but stating: “if [the

AFBCMR] believe the documents you requested are needed to rule on

your petition, they may request the documents for review in camera and

safeguard them from unauthorized release.” DX at 301.

The AFBCMR acts on the Secretary’s behalf and is required by statute

{0 review records for error or injustice. See 10 U.S.C. § 1552(a). It is

inconceivable that the AFBCMR in that Capacity may not review

everything in the record before a selection board or SSB, since it would

not otherwise be able to carry out its statutorily delegated responsibility

to recommend correction of the SSB or selection board's records. Sec 10

U.S.C. § 618(a)(1) (1988); see also AFR 31-3, § 9a (31 May 1985)

mandating that a panel of the AFBCMR review “[e]ach application and

the available military or naval records pertinent to the corrective action

requested.” Nor would this court be able properly to apply the standard

of review mandated by the cases binding this court—arbitrary or

capricious or unsupported by substantial evidence—without any record

of the SSB record before the AFBCMR. See also 10 U.S.C. § 618(a)

(requiring the Secretary to return selection board report if board “acted

contrary to law or regulations”), AFR 36-5, § 36d(2).

The court also does not decide whether, if such records were not

protected (or could not be redacted), Mr. Porter was entitled to those

records in filing his AFBCMR application, under 32 C.F.R. § 865.8(¢)

which provided (in pertinent part):

that an applicant to the AFBCMR “shall have access to such

official records as are deemed necessary to adequately present

his case” and puts the responsibility on the applicant to procure

only “such evidence not contained in official records.”

(Emphasis added.) Also, 32 C.F.R. § 865.16(a) provides that, at

the AFBCMR’s request, “the appropriate staff office will

assemble the original or certified copies of all available military

records pertinent to the correction action requested.”

Defendant's assertion at the August 11, 1992 hearing that the court in

Law v. United States, 26 Cl. Ct. 382 (1992) decided that a correction

board may not be required to consider all the records before an SSB in

order to comply with its mandate under 10 U.S.C. § 1552 was

misinformed. The decision does not deal with this issue, or with SSBs at

all.

The absence of any provision in 10 U.S.C. comparable to a provision

in the Privacy Act of 1974 permitting disclosure of otherwise protected

agency records at the order of court, see 5 U.S.C. § 552a(b)(11), also is

not, as defendant argues, conclusive on whether Congress intended to

preclude court review (in camera, at least) of AFBCMR records (or of

SSB records before the AFBCMR). Rather, it appears to support equally

well the opposite proposition—that even protected agency records may

be released to a court.

Defendant also has not explained why military personnel records,

properly redacted, should be subject to a greater degree of protection than

the Privacy Act or FOIA, 5 U.S.C. §§ 552, 552a, accord to other

government records.

The Privacy Act exemption most apposite to this situation, see 5

U.S.C. 552a(7) (emphasis added), in fact, permits exemption (by rule) of

which Mr. Porter’s record was compared, as necessary to

determine whether there was a significant error or injustice

in Mr. Porter’s records or, if there was, whether it was

harmless, in that he would not have been promoted in any

event. The AFBCMR’s decision on remand shall set Out the

full evidentiary basis or other rationale for these

determinations. *° Cf Massachusetts Trustees v. United

States, 377 U.S. 235, 246 (1964) (“grounds not relied on bya

government agency cannot be invoked to validate an

“evaluation material used to determine potential for promotion in the

armed services,” only to the extent that their disclosure “would reveal the

identity of a source who furnished information to the government under

an express promise [of confidentiality].”

The exception permitted by 5 U.S.C. § 552a(6) also seems not to

apply, since it protects only Promotion “testing or examination material

(emphasis added), and is applicable only if the material is used “solely to

determine individual qualifications for promotion.”

The DoD and Air Force regulations under these Privacy Act

exemptions merely repeat the standards of the statute. See, e.g, 32

C.F.R. § 310.52(a), 5C.F.R. § 297.50 1(b).

Further, redacted records, which apparently would satisfy the SSB’s

needs under 10 U.S.C. § 628, are not “records” subject to Privacy Act

Protections at all, because, by definition. they do not “contain {an

individual's] name, or. . . other identifying particular assigned to the

individual.” See 5 U.S.C. § 552a(a)(4).

While the SSB regulations provide that SSB scores “are internal

working papers, are exempt from disclosure, and are destroyed as soon as

the Secretary approves the Board proceedings,” see AFR 36-5, § 3-6 (in

pertinent part), the Secretary's authority to permit such destruction under

the Privacy Act is not clear, and is not asserted in the Department's

Privacy Act regulations.

* The AFBCMR also shall determine whether any information similar

to the composite assessment sheet allegedly compared by the Air Force

Personnel Center, attached as Exhibit 29A to plaintiff's complaint, which

the government conceded at oral argument “should not be before the

[SSB]” or an allegedly improper and revoked letter of reprimand

ordering Mr. Porter’s placement in a weight reduction program were in

fact part of the records before either SSB. While both these issues were

raised in Mr. Porter’s application to the AFBCMR, the AFBCMR

decision did not address them.

exercise of administrative discretion which has in fact been

based on insufficient grounds”) (citations omitted).

If, on remand, the AFBCMR determines that there were one

or more significant errors in the records before the SSB, it

shall make whatever recommendations to the Secretary it

deems appropriate, including reinstatement, back pay,

correction of records (including, but not limited to, voiding

the SSB decisions), and another opportunity to be considered

by an SSB sitting for the CY 84B and CY 85A selection

boards.”’

>” Neither this court nor the AFBCMR, however, unilaterally may grant

Mr. Porter's request for a promotion to the rank of captain. This court

cannot substitute its own criteria for that of a selection board or an SSB

in promotion decisions. See Orloff, 345 U.S. at 83; Kien v. United

States, 227 Ct. Cl. 772, 776 (1981).

While the AFBCMR may recommend a promotion, it may not actually

promote a member of the military service, retroactively or prospectively.

See 10 U.S.C. § 616 (1988) (Recommendations for promotion by

selection boards); 10 U.S.C. § 617(a) (1988) (“selection board . . . shall

submit ... report ... containing a list of the ... officers it recommends for

promotion”). (Emphases added). Rather, promotions of general officers

must, by statute, be reviewed by a military chain of command (the

Secretary of the department, the Secretary of Defense), and submitted to

the President “for his approval, modification, or disapproval,” see 10

U.S.C. § 618(b) and (c) (1988); see also 10 U.S.C. § 616(d). Only after

the board’s recommendation is approved by the President may the names

selected by the board be placed on the promotion list. See 10 U.S.C. §

624(a)(1) (1988). Further, the President may remove from the list the

name of an officer recommended for promotion by a selection board. Cf.

10 U.S.C. § 618(d) (1988). (While the President has delegated his

authority under 10 U.S.C. § 624(c) he has reserved his removal authority

under 10 U.S.C. § 618(c). See Executive Order No. 12396 §§ 1(a), 1(g),

3, Dec. 9, 1983, 47 F.R. 55897, 55898.)

Thus, even if an officer were placed on a promotion list by a selection

board or an SSB, this would not assure his actual promotion to that rank

until the statutorily required review was conducted.

Awarding back pay damages corresponding to the rate

allocable to any rank above that of first lieutenant also would be

beyond this court’s power, because its jurisdiction is based upon

the statute setting his rate of pay at his rank at the time of

Plaintiffs brief, if any, regarding the effect of the

AFBCMR’s decision on remand--or the Secretary’s, see 32

C.F.R. §865.21 (1989)--shall be filed within thirty days of

the filing of such decision in this court.

/s/

DIANE G. WEINSTEIN

Judge, U.S. Court of Federal Claims

discharge or separation. See United States v. Wickersham, 201

U.S. 390 (1906).

In the United States Court of Federal Claims

No. 91-1008C

(Filed October 31, 1994)

GREGORY C. PORTER,

Plaintiff,

THE UNITTED STATES

Defendant.

Order

This case is before the court on cross-motions for summary

judgment following remand to the Air Force Board for

Correction of Military Records (AFBCMR), Porter v. United

States, No. 91-1008C, slip op. at 27-31 (Fed. Cl. Dec. 30,

1992), and nonselection decisions by special selection

boards (SSBs) convened in November 1993 for the 1984B

and 1985A promotion selection boards. The court denies

both motions and remands with the direction that Mr.

Porter's record be corrected to show reinstatement at his

discharge rank and date and that he be paid the wages and

other benefits to which he would have been entitled if he had

served at the reinstated rank of first lieutenant for at least the

period between (1) his original unlawful discharge pursuant

to 10 U.S.C. § 631 ' on August 31, 1985 (based on voided

' Citations to Title 10 of the United States Code are to the edition in

effect at the relevant time, unless otherwise stated.

)

nonselection decisions in CY 84B and CY 85A) and

November 15, 1993, when he was nonselected for promotion

by the SSBs to [sic] sitting for the CY 84B and CY 85A

selection boards.

Background

The pre-remand facts and procedural history are set out in

the remand order, and will only be summarized here.

Plaintiff Gregory Porter, a first lieutenant in the Air Force,

was not selected by the two selection boards considering him

for promotion to the rank of captain, which were convened

on July 23, 1984 (CY 84B) and January 21, 1985 (CY 85A).

He was then discharged, pursuant to the "up or out"

requirements of 10 U.S.C. § 631 and Air Force Regulation

(AFR) 36-12, 9 3-20 (1 October 1984). Upon plaintiff's

application, the AFBCMR concluded that his Officer

Effectiveness Report (OER) for the second half of 1983

should be voided and removed from the record, that there

was nexus between the erroneous inclusion of the OER and

his nonpromotion, and that therefore the 1984B and 1985A

nonselection decisions should be voided, and he should be

reconsidered for promotion by SSBs sitting for the CY 84B

and CY 85A boards.” Those SSBs, convened in March 1986,

both decided, based on the corrected record as it would have

been considered by the original selection boards, not to

recommend his selection for promotion.

Plaintiff again applied to the AFBCMR in 1983, alleging

that he was prejudiced before the 1986 SSBs by the gap

* The Secretary of the Air Force (Secretary) accepted the AFBCMR's

conclusion that Mr. Porter's record and recommendations were

"sufficient to overcome the rationale [of] the Air Staff [that Mr. Porter

would not have been promoted in any event]." DX at 143.

created by removal of the voided OER, that the record listed

his duty titles incorrectly, and that a Letter of Evaluation

(LOE) written by the same reviewer who wrote the voided

OER (but attached to a different OER) repeated the

substance of, and perpetuated the negative effect of, the

removed OER. He also alleged procedural irregularities by

the SSBs. After the AFBCMR determined there were no

errors and denied the application. He filed suit in this court

in 1991 on these and other grounds.

Defendant moved for summary judgment on the grounds that

the AFBCMR decision was correct in that there were no

errors in his record and no causal nexus between any

possible errors and the SSBs' findings that he would not have

been promoted. In December 1992, the court held that

plaintiff was not prejudiced by the gap in his record but

remanded the case to the AFBCMR to consider whether the

misstatement of his duty titles and the LOE were errors

having a causal nexus with his nonselections by the 1986

SSBs. See. e.g., Engels v. United States, 678 F.2d 173, 175

(Ct. Cl. 1982); Sanders v. United States, 594 F.2d 804, 811

(Ct. Cl. 1979). The court also denied plaintiffs motion for

summary judgment based on certain other procedural

irregularities.

On remand, the AFBCMR concluded that plaintiff's

misstated duty title should be corrected and that the LOE

should be removed from the record. The Secretary's designee

ordered that plaintiff should again be considered for

promotion by SSBs sitting for the CY 84B and CY 85A

boards. Neither the AFBCMR nor the Secretary appears to

have reviewed the SSBs' decisions, and neither has issued

any further explanation of its action on remand or their effect

on plaintiff 's claims. Like the AFBCMR in 1986 that voided

the 1984B and 1985A passovers, the AFBCMR did not

decide, or address, whether compensation was due to Mr.

Porter as a result of correcting the nonselections upon which

ee ee

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his discharge was grounded, see 10 U.S. C. § 1552(c)

(1988), e.g., for back pay to the date of his unlawful

discharge. SSBs convened for each of the CY 84B and CY

85A boards in November 1993 both recommended that he

not be promoted.

Defendant has moved for summary judgment on the grounds

that the conclusions of the 1993 SSBs show that there was

no nexus between the errors in plaintiff's record and the

1986 SSBs' nonselection decisions, and that the 1993 SSBs'

procedures suffered no defects. Plaintiff has cross-moved for

summary judgment, alleging that there was such a nexus,

and that the 1993 boards committed various procedural

errors. Plaintiff requests another remand to the AFBCMR for

the purpose of considering his objections.

Discussion

Summary judgment is granted when there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986). The moving party must

show that there is an absence of evidence to support the

non-movant's case. See Sweats Fashions, Inc. v. Pannill

Knitting Co., 833 F.2d 1560, 1563 (Fed. Cir. 1987) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), cert.

denied, 484 U.S. 1066 (1988). In Opposing the motion, the

non-movant may not rest on conclusory pleadings, but must

"proffer countering evidence sufficient to create a genuine

factual dispute.” Sweats Fashions. Inc., 833 F.2d at 1562.

Plaintiff appe

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