Petition for Writ of Certiorari — Chandler v. Roche

supreme Court, US.

os FILE®

| / @& 828 JUN 13 2003

.

AER LL A LE TNT a ECOL © EEE IEICE EI A IS

IN THE

Supreme Court of the Gnited States

WINSTON G. CHANDLER

Petitioner

V.

SECRETARY OF THE U.S.

AIR FORCE, RAYMOND H.

WELLAR, CHIEF OF

CORRECTION BOARD, Mr.

MARTHA MAUST, PANEL

CHAIR.

Opponents

On Petition for Writ of Certiorari

To The Eighth Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

WINSTON G. CHANDLER

Major U.S.A.F.R.--Pro Se

89 Pinedale Circle

Mabelvale, Ar. 72103

501-455-5087

LEO LOLI LLL INT ETE LEE EE EILEEN NE IGS IEEE SAE EB

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QUESTIONS

1. The Eighth Circuit Court of Appeals has entered

a decision that has not been decided before on an important

question of Federal Law. This should be settled by this

court to clear up the confusion on whether all time served

in the Army and Air Force is tied together for promotions?

Would this not be a basis for Federal Jurisdiction in the

| Court of First Instance, or First Impression?

2. Is ita violation of the U. S. Constitution Art 1 #8

for the Board of Corrections of military Records,

(hereinafter referred to as BCMR) to ignore mandatory

laws and regulations passed by Congress for the corrections

of Military Officers records on promotions, and then the

Appeal Court to affirm their iltegal decisions, is-this an

abuse of discretion?

3. Where copies of facts, laws and Court Cases

involved in this type case were provided BCMR, and the

District Court, and they still refused to follow the laws, and

the Appeals Court affirmed their invalid decisions, is this

not an Arbitrary and Capricious Act?

i

LIST OF PARTIES

[x]All parties of this case are on the cover page.

TABLE OF CONTENTS.

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PARTIES TO THE PROCEEDING...............sssesse0 ii

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CONSTITIONAL PROVISIONS AND STATUTES

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STATEMENT OF CASE......c.ccccccsccccsccccsccccccccess 5

REASONS FOR GRANTING THE PETITON.......... 7

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TABLE OF AUTHORITIES

- Brown v. Gleni 444 U.S. 348 (1980)............. 0. ccc eceeee eee 2

Bowen v. Georgetown 488 U.S. 30 ..............ccceeeeee ees 17

Chandler v. U.S. 255 F3d 919 (2003) .......cccccccsccccseses iii

CE Wi: Shas Pe a UE DUET chibndbinddcuweccccecdecsecenanl iii

Chandler v. U.S. 320 F3d 828 (2003)................cceeeee iii.

Chappell v. Wallace 462 U.S. 303 (1982) .................. 19

Elwood Investors Co. v. Behme 79 Misc 2d 910........... 21

Persone ¥V. U.S. 152 F Bam. 256 o.cicecsccsccccsvvsvccecesens 19

Friedman v. U.S. 310 F 2d 402-04... 0... cece ccee eee e ee 12

Friends of Richard Gabaur v. F.A.A. 351F3d 1181........ 18

Geyer v. Marsh 26 CtCl 1442 (1992).............ccceee eee 18

Hollingsworth v. Ind Emp. 84 N.E.2d 362-367............. 12

Horn v. Schlesinger 517 F2d 549...............cccccecceccees 19

Leuthol v Banford 47 F2d 42-45...............ccecceeecees 16

Sanders v. U.S. 594 F 2d 815..............ccccssecees 12-13-14

Stine 25 4BR,244 I” Clzoulit..............c0sescecscecsenessvers 12

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BASIS FOR FEDERAL JURISDICTION

This case Comes from the Eighth Circuit Court of

Appeals (Appendix B) that has decided an important

questions of federal law that has not been decided in any

other Court, but should be settled by this Court. It also

conflicts with relevant decision of this Court, and other

Appeals Courts on some other important points in this case.

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1) amended on 1947-1954. See: §706-10

U.S.C.A. §1552.

OPINIONS BELOW

(i) The date of the Judgment subject to review was

February 25, 2003. (No. 02-2053 EA) Chandler v. U.S.

320 F3d 828 (2003).

(ii) Date of rehearing denial was April 18, 2003.

(iii) District Court order July 16, 2002(No.400CV00572).

CONSTITUTIONAL PROVISIONS-STATUTES AND

REGULATIONS(Hereinafter known as CPSR)

(1) United States Constitution Art 1 § 8. cl16.

“This was a plenary power granted to Congress by

the Constitution, to raise and support Armies”. “To

iv

provide and maintain a Navy,” “To make Rules for the

Government and Regulations of the land and Naval

Forces.” Art.1 Sec 8, cls. 12-14.

(2) PUBLIC LAW 773-Coded10 U.S.C.A. 1552

Congress passed 10 U.S.C.A. 1552 to cover the

rules and Regulation the services had been operating under

from the beginning. Making them Statutory. (AR. 84)

(3) PURPOSE OF THE BILL Public law 773

The principle purpose of H.R.773 (Public Law 773)

is to provide Officers of the Reserve Component a

Statutory basis for promotions and _ elimination

comparable to that of the Officers of the Regular

component by the Officers Reserve Act of 1947. (emphasis

added)(AR 65-Page2).

(4) Relationship to Existing Procedures

“This bill does not establish promotion and

elimination that are basically new” Sec; §.216(a) of the

Armed Forces Reserve Act of 1952. (emphasis

added)(AR.65-Page 2)

(5) §308; ARMY-§509 U.S. ATR FORCE

§308 Each non-unit Officer in the grade of

Second Lieutenant who is found by the Secretary or any

officer to be designated to be qualified for promotion

shall be promoted, effective on the date he has three

]

years of promotion service, regardless of a vacancy in

the grade of First Lieutenant. (AR.93)

§509;(a) Except as provided in subsection (b) of

this section, each officer of the Air Force Reserve in an

actiye status in the grade of Second Lieutenant who is

found qualified for promotion shall be promoted to the

grade of First Lieutenant effect on the day he reaches 3

years of promotion service in grade.

(b) A Reserve Officer in the grade of Second

Lieutenant who completes three years of Promotion

service in grade and who is found not qualified shall be

discharged.

(Petitioner was in beth Army and Air Force for 21

years and 7 months and 14 days)

(6) ROPA 10 U.S.C. 8380 TITLE U.S.C. §:628-5A

States as follows: “To correct inequity in

Officers Promotions before ROPA (1945) with qualified

ratings not on active duty would be promoted as if he

were on active duty. Said Officer will be presumed to

recommended by their commanding officers for said

promotions.

(7) TITLE V1i.MISCELLANEOUS PROVISIONS

See§ 702(b)-All Officers of the Army and Air

Force serving in any grade (in case of Reserves Officers,

2

shall precede that on which he enters the Active service

of the United States by a period equal to the total of (1)

One year for each year of satisfactory Federal Service.

“ACTIVE STATUS” means the status of a Reserve

Officer who is not in the Active National Guard or

inactive National Guard, or in the retired reserve. (All

other point are in an Active state)(emphasis

added)(AR.117)

(8) RESERVE PERSONNEL ACT OF 1946

§ 207(a) Of the Legislative Reorganization Act of

1946, as amended, provides for the correction of

Military and Naval records. Secretaries of the Armed

Services through Boards of civilian officers or

employees of the respective departments, to correct

errors or remove injustices. Action under this authority

may, in some instances effect a retroactive promotion.

(b) EFFECTIVE Date of Promotion. This subsection

provides that in carrying out the provisions of this title,

a promotion may be made effective, before, on, or after

the date accomplished.(emphasis added)(See;)(AR.70)

(9) ROPA INFORMATION SHEET.

(3) TOTAL COMMISSIONED SERVICE

DATE(TFCSD) That date which reflects all periods of

3

Federally recognized commissioned service-The TFCSD

will be the date you accepted your initial commission.

(10) PROMOTIONS PATTERNS.

-after he has served a prescribed maximum period

of service in that grade his consideration becomes

mandatory if he is qualified for the next higher

grade.(AR.67)(emphasis added)

. (11)Sec:510.Mandatory Consideraton

for Promotion to Captain, Major, and

Lieutenant Colonel.

(a) Mandatory Consideration ....This sub-section

prescribes for promotion of officers reaching specific

career are points.

Grade for consideration.............cccsccceceee Phases

Captain.....4 years in grade and 7 years service.

Major....... 7 years in grade and 14 years service.

Lieutenant Colonel..7 years in grade and 21 years

service (AR.No.79-2)

(12) Public Law 773—10 U.S.C. 1552.

Sec:501 (68 Stat) (Total years of service, means

all periods of time a Reserve Officer: (A) has held an

appointment as a commissioned Officer in any of the

Armed Forces of the United States, without component

or in any component thereof: (AR No 105)

4

STATEMENT OF THE CASE

Petitioner, Winston G. Chandler, is a Retired Air

Force Major serving from August 6, 1944 to October 9,

1966.(AR16). He served as a Pilot, (Staff Supply

Officer, and Staff Transportation in the Reserve.)

(Petitioner was released August 18, 1945 from

Active duty(when World War II ended). He was assigned

to the Organized Reserve Corp. which was Army Air Corp

at that time.(AR58) Not Air Force as Appeals decision

says)

Petitioner was promoted to First Lieutenant in June

1950(AR17), after the U.S. Air Force was created. This

was 2 years, 10 Months past the mandatory time for the

promotion, (which was three years, not the 5 years and 10

months). This caused Major Chandler to be in the wrong

promotion zone. His Army Air Force time was not

considered by the Air Force, as the Regulations called for

(which was continuous in both services)

The promotion to Captain was February 3, 1955,

(AR 18) which was also over the 4 years for the promotion.

(6 Months over the mandatory time.) The Promotion to

Major was February 3, 1962.(AR 23). Petitioner filed

with BCMR asking for correction of the promotion to First

5

Lieutenant BCMR came back that there, (had to be

avacancy _for a promotion to First Lieutenant.(AR40)).

Petitioner sent BCMR the Regulations and Court

Cases, that said, “that a vacancy was not required for

promotion to First Lieutenant”. (§ 13-f (AR.61).

The next excuse was that (promotions could not be

made retroactive)(AR 9). Major Chandler again sent the

‘Law which said, “Promotions could be made

retroactive,” (CPSR No. 8)(AR70) “his was a 1946 Act

that is stillin effect. BCMR still refused to correct the

military records. Thereby denying again. This was done

with the correct law in their hands. They were acting

arbitrary and capricious in not complying with the law.

Petitioner filed suit in Federal District Court,

Arkansas, Eastern Division on July 24, 2000. BCMR came

with an answer saying, “The Statute of Limitation had

run.” The District Court agreed and dismissed the case

October 4, 2000. Motion for reconsideration was denied

October 30, 2000.(2)

Petitioner filed an appeal to the Eighth Circuit

Court of Appeals November 13, 2000. The Appeal Court

ruled the District Court was wrong thereby, _ reversing

the Court on the Statute part. Mandating the Court

6

to see if the law had been violated. If BCMR had been

arbitrary and capricious. (Appendix B)

June 26, 2001.(3)Opponents filed second identical

motion for Summary Judgment on February 5, 2002, which

was granted by the District Judge dismissing the suit again

on July 16, 2002.(1)(Appendix No.,C)

Petitioner, Major Chandler filed another

appeal to the Eighth Circuit Court of Appeals on September

4, 2002.

The Eighth Circuit Court panel issued a decision

2003.(3) Affirming the District Court dismissal.

Rehearing was filed for on April 1, 2003, which was denied

on April 18, 2003. (Appendix A)

REASON FOR GRANTING THE WRIT

This is an unusual case. It was made so by the

continuous hunting a way to deny the petitioner his rights

by BCMR.. All the issues the BCMR used were false..!!

First “that there had to be a vacancy for the promotion

to First Lieutenant” when AFT-45. 13-f made it

false..Someone failed to read the Regulations. (AR. 36) (1)

(2) (3)

Then BCMR came back with, “a promotion could

not be made retroactive. § 207 of the Reorganization

7

Act of 1946, clears this up if you are trying to find the

truth. This Act is still in effect today.

The Appeals Court agrees that “Retroactive

promotions, and the three year, without a vacancy is in the

law.” Pub.L 773 the 1954 part of ROPA states the purpose

is to equalize Regular and Reserve officers, (this includes

Army and Air Force Office together) as provided in the

1947 Act..(AR 65-2). The Legislative History brings in

§ 207 of the 1946 Act clears up the Retroactive part of the

Act.

ON QUESTION NO 1

The Honorable Eighth Circuit Court of Appeals in

their February 25, 2003 decision in this case has brought

up a question of law that has not been decided by this

Court or any other Court. It needs to be brought before

this Court for a clarification of the law, so the printed

decision of this case will not become an erroneous

precedent for the future that will effect many Officers in the

same category as Petitioner.

The question that need an answer from this

Honorable Court is “Does the time served in both the

Army Air Force, and the U.S. Air Force count together

for the promotions of Military Officers”?

8

The ruling in the Appeal Courts decision is NO.

The Reserve Office laws have not been followed..

In the decision the Apneals Court said (appendix B)

“The Plaintiff initially became an officer at

the time when the Air Force, then called the Army Air

Corps was part of the Army, but this situation changed,

and the Air force had become a separate service, well

before ROPA Law.”

Then the Appeals Court after the erroneous

decisions by BCMR then turned around and said:

“We conclude, that cur reviewing authority is

not sufficient to set aside the decision of the Air Force

Board for the Corrections of military Records. The

Boards interpretation of the governing military Statutes

are not unreasonable ” (Appendix 7b)

BCMR was not correct on any of its argument, yet

the Appeals Court gave them the right to continue to make

up erroneous false decisions, and give Major Chandler the

shaft. Let us now see what the governing statutes say:

(7) TITLE _V1l1_ Miscellaneous Provisions, _in

Constitutional Provisions, Statures, Regulations)

(hereinafter known as CPSR.]

(7) §702(b) All Officers of the Army and Air

Force serving in any grade — {in case of Reserve Officers,

9

shall precede that on which he enters active service of the

United States by a period equal to the total of (1) year for

each year of satisfactory service”}

“Active Service means the status of a Reserve

Officer who is not in the Active National Guard, or

inactive Guard, or in the retired Reserve.(AR117) See;

(CPSR12)

(10) Promotions Patterns — after he has served a

prescribed maximum period of service in that grade his

consideration becomes Mandatory if he is qualified for the

next higher grade. (AR. No.67)(CSPR 10)

(11) Sec; 501. Mandatory Consideration for

Lieutenant Colonel. 7 years in grade and 21 years service,

was ignored(AR.79-2) (CSPR No. 11)

(12) Public Law.773. Total years of service means

all periods of time a Reserve Officer:

(a) has held as appointment as a commissioned

Officer in Any of the Armed Forces of the United

States, without component or in any component. (AR.No.

105)(CSPR No.12)

The question that this Court needs to confirm is,

whether service in both the Army Air Corp and the U.S.

Air Force should be counted together for promotions,

where service has been continuous, which is the case of

10

the Petitioner, and as stated in the law. The Appeals

Court is in-error in their opinion on this issue and has

been unfair te Officer that fits in this category. (CPSR

7 & 12) And §702(b)

This is an issue that is a first instance or first

impression since no other court has made a ruling on

this law, and it needs to be cleared up by this Honorable

Court.

ON QUESTION NO. 2

The U.S. Constitution Art 1 §8 gives the U.S.

congress plenary power to make all laws and Regulations

for the Military services, and Congress established Boards

for the corrections of Military Records. (Hereinafter

known as BCMR). !n the case at bar, BCMR refused to

correct Petitioner’s Military Records that would give him a

rank of Lieutenant Colonel with 21 years and 7 months and

14 days continuous service. The Appeal Court has

confirmed his erroneous decisions of BCMR and the

District Court. When the BCMR and the District court

had in hand the Copies of the Reserve Officer Laws and

Regulations, an ignored all, it certainly is a case of

Abuse of Discretion. This was also overlooked by the

Appeals Court in their eee . See : (4)(5)(6)

————— ii

The Courts have not followed the intent of Congress

in this case by not declaring an ABUSE OF

DISCRETION. See (6)(7)

This decision is in violation of the U.S.

Constitution, and should be reversed. BCMR has a

mandate to make corrections of Military Records. Courts

have said mistakes may be made but Congress expects

judicial authority to see that are corrected. The Appeals

Court somehow became lost in the maze of Promotion

Laws. Friedman v. U.S. 310 F2d 403-04. Also see

Sanders v. U.S. 594 F2d 817(4) (5)(6)(7).

(4) “Legislative intent is to do justice to those injured by the

occassional Legal mistakes to be expected in administration of a

vast personnel system which Congress expects to be brought in

account by judicial authority when necessary” Friedman v. United

States Supra, 310 F2d 403-04 and also see Sanders v. U.S. 594 F2d

81 §190g 10 U.S.C.A. §1552. Sanders v. U.S. 594 F2d 804.

(5) “Lower courts commits “abuse of discretion” if it bases its

decision on erroneous legal standards or upon clearly erroneous

findings. Stine 254 B.R.244 Affirmed 19 Fed.” Appx 626 9"

Circuit (2000). y

(6) “an abuse of discretion” reviewable on appeal is an erroneous

conclusion and judgment, clearly against the logic and affect of the

facts and circumstances or the reasonable, probable, and actual

deductions to be drawn there from. Hollingsworth Tool Works vy.

Employment Security Review Bd of Ind. N.E.2d 362 367.

12

This is a case of abuse of discretion by BCMR not

correcting the Records. They are commanded to make

corrections, not deny. The Eighth Circuit Court of Appeal

Did not follow the intent of Congress in this case.

See (6 and 7)

ON QUESTION NO. 3

Question No. 3 covers Arbitrary and Capricious

The BCMR and District Court both said, there

was no “retroactive in ROPA”. That time in the Army

Air Force and Air Force Reserve started in the 1954 Act is

a false assumption... The Appeals Court also agreed that

the District Court and BCMR were wrong on both

items. Yet the Appeals Court has been misled by argument

of the Opponents. Saying, “Major Chandler, did not

apply _in_ his case.” (Appendix 4b), (8)(9) because

Petitioner spent the first 2 years, and 10 months in the

Army Air Force.

7) ”Thus the ultimate burden_sheuld be on the party whose error

and obfuscation of the evidence caused the problem in the first

place; thus we repeat, the Correction Board’s decision denying

ntiff complete relief was Arbitrary, and Capricious, without

rational basis, unsupported by substantial evidence, and contrary

to law. Sanders v. U.S. 594 F2d 816-820.

13

It is clear that Public Law 773 Sec:501, (68 Stat

1147) that All time served as a Commissioned Officer in

any service counts together for promotions. See (CSPR

No. 12).

In the ROPA Act it refers to the 1952 Act §701:

(Where it says on time in service). (1) It covers All

Commission Officers.3) “Grade means, unless otherwise

specified, the permanent grade of a Reserve Officer. (4)

Points means points Credited under §701 of the Army and

Air Force. The Vitalization Equalization Act of 1948;

Also see § 216 of the 1952 Act, which, made promotion

Regulations Statutory. 10 U.S.C. 507-511.

The purpose of the bill H.R. 6375, (CSPR 3)

becoming Public Law 773, refers to the Officer Personnel

Act of 1947. It can be seen that all the Acts were a way of

making the promotion of military officers more secure.

None has been repealed. See: CSPR No. 11 & 12)

(8) “Secretaries of the military departments have a duty as well as

power to afford proper relief by correcting Military Records”

Legislative Reorganization Act of 1946 §131-2 U.S.C.A. United

States supra Boards have a statutory duty to determine where

there has been error or injustice, and to grant through and fitting

relief Sanders v. United States 594 F2d 817 (1979)

14

The Legislative Reorganization Act of 1946,

provides for correcting of Military and Naval records and

sets up Boards to make the corrections §207. This is the

Section that authorizes Retroactive promotion of

Officers and makes it effective before the accomplishing

of the action. How the District Court and BCMR could

miss this, when copies of the Acts were furnished to both

parties? It looks like both the District Court and BCMR

were arbitrary and capricious in this case because the

Petitioner had gone to Appeal Court.

Taking all the above into count it can be seen that

the Court of Appeals misconstrued the facts and laws in

this case...Their statement on what §207 of 1946

Legislative Reorganization Act of 1946 is so clear that it

cannot be misunderstood. Yet here is what the Appeals

Court said in the 2003 decision.(See; Appendix 6b)

“We agree that the Statute may, in some instance,

authorize a retroactive promotion, but the authority is a

general one. It applies where for some legal reason,

retroactive is required, or at least appropriate, under law in

effect at the relevant time (emphasis added) (Appendix 6b)

Just what is the Court saying?. In all cases and

Dictionaries it has been understood from the beginning that

retroactive is “correcting something that should have

15

been done in the past” §207 makes (a)(b) make it clear

when it was passed in 1946, it was to clear up mistakes

made by the Military services so Officer would not be left

outside by mistakes the service had made: There is no

other way this Act can be described. Major Chandler

was in this category. The Appeal Court was just plain

outside of reason in their decision. You cannot be partly

retroactive!!!!

What is “general”? It relates to the whole, kind,

class, or order, Universal” Leuthol v. Branford 47 2d 41-

45 (it is a class or kind, and cannot be ignored. It is for

promotions that had been missed before, and the BCMR

were ordered to correct by Congress, regardless of when

the mistakes were made. General is out of place in this

ease.

(9) States ite case general. It is universal, whule, kind, class or

order. Leuthol v. Banford. 47 2d 42-45 (It covers all, you can’t be

(10) Army Board of Correction of Military records denying

Plaintiff's application or correction of his military records was

inadequate in that there was no satisfactory indication that the

Board based its decision on a balanced consideration of all the

evidence presented and available Werner vy. U.S. 642 F2 404.

16

Petitioner is covered. He was in the Army Air

Force and the U.S. Air Force for 21 years 7 months and 14

days, with a clean record. How can the Appeal Court let

the BCMR deny him the correction mandated by Congress?

Denying him his rank he worked all those years to qualify

for.

The Appeal court uses “E.G. Bowen _v.

Georgetown University Hospital 488 U.S. 304 (1988)

wrong as the case quoted said “if Retroactive is in the

Act it is authorized.” The Supreme Court allowed the

retroactive part. In the Bowen Case the U.S. Supreme

Court page 224, by one of the member on this

Honorable Court said “it is important to note that the

retroactivity limitation applies only to rulemaking”

(Appendix 5b) Then the appeals Court went into the

Administrative Act Procedures and tried to hid their

obligation saying: (Appendix 4b)

“We must defer to the Air Force Boards

interpretation of governing statutes, and accept that

interpretation if it is reasonable regardless of how we

might interpret the statues as an original matter—our

review of Military agency’s decision must be extremely

deferential —due to the narrow scope under APA.”

17

This argument is not valid. If this is correct, why

did Congress in it Acts give the Courts a right to review

and reverse erroneous decisions of BCMR.? Here we

have a case where the BCMR and the District Court

have ignored all the laws and facts in the case, ruling

with no basis for their actions. This was agreed by the

Appeals Court is wrong. Now the Appeals Court says

you may be wrong in your decisions, be we cannot make

a correction because you are a Government Agency.

This is an erroneous argument. See: (11)(12).

This decision goes against every legitimate

decision the United States Supreme Court has made on

this type case, as well as other Appeals Court cases.

See:(14)(15)

Congress new that the military would make

mistakes , and sometime try to cover these mistakes

The Courts were authorized to correct these mistakes.

(12) 5 U.S.C. §706. The APA prescribes that an agency action is

unlawful and may be set aside if it was “Arbitrary, capricious. In

abuse of discretion, or not otherwise not in accordance with law (49

U.S.C.(4610(c)). Friends of Richard Gebour v. FFA 251 F3d 1185.

(13) Board for corrections may “In the interest of justice review

and correct any military record” no matter how long ago alleged

error or injustice occurred.” Gever v. Marsh 26 CtCl 1446 (1992)

18

When BCMR and the District Court have been

wrong on every item in this case, “the Statute of

Limitation, the no promotion without a vacancy, and no

retroactive promotions.” Why, Why, How can the

Apppeals Court justify their decision with the Chappell

v. Wallace below. (14)(15)

Maybe the Courts hate to rule against

Government Agencies, but the Courts duty is to Justice

regardless of who it is. This has not been the course set

by decisions in this case.(16)

(14) “The Board is empowered to order retroactive back pay and

retroactive promotions. 10 U.S.C. §1552(c) Board decisions are

subject to judicial review and can be set aside if they are arbitrary,

capricious, or not based on substantial evidence. (c)Sanders v. U.S.

594 F2d 802 1979) Chappell v. Wallace 462 U.S. 303.

(15) “Action of the correction Board is subject to judicial reversal if

it is arbitrary, capricious, unsupported by substantial evidence or

erroneous in law.” Horn v. Schlesinger 517 F2d 549.

(16) “Congress did not give Secretaries the raw power to correct

military records as they might wish; on the contrary, this court has

held that the Secretaries and their Boards must base their decisions

to correct or not on substantial evidence and they may not act

arbitrary, Furlong v. U.S. 152 F Supp 238-138CtCl 843. (emphasis

added) 19°

Next the Appeals Court tries to classify the

retroactive to someone that is called to Active duty

before a promotion could be made. This is not correct,

the purpose of the bill (CPSR No. 3) places all Officers,

Regular and Reserve in the same category for all

promotions. This is Public Law 773.10 U.S.C.1552.(c)

One thing to keep in mind in this case at bar the

decisions to be made by BCMR were not discretionary.

Discretionary would be for a promotion before

the mandatory time. The promotion for the petitioner

was mandatory if they had _ corrected the First

promotion, because he had met the mandatory time and

was qualified. This has been ignored by the Appeals

Court. All Officers that met the mandatory time would

be promoted. See;(16)(17) ,

Petitioner should not be penalized by the Armed

Forces mistakes. Congress in its laws and regulations have

made a clear path for the corrections of the Military’s

mistakes, and it is the duty of the Courts to review and

reverse unjust decisions.

In this case remember BCMR had in their hands the

laws, Petitioner had given them. So there is no way they

can claim a mistake. If they knew this then they are

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Arbitrary and Capricious, and have not followed the law.

See ((17)18)

Petitioner realizes that this Honorable Court has lots

of cases to consider. This Case is setting an illegal

precedent. This effects not only the Petitioner but

thousands of Military Officers that will be effected if it is

allowed to stand. It is uniair, unjust and a travesty if

allowed to stand.

The fact and the laws in this case are clear. The

decision has left the Reserve Officer Major Chandler

outside the protection and his civil rights guaranteed by the

U. S. Constitution.

Petitioner, begs for Justice that the USS.

Constitution intended. The Appeals court made a big

mistake in this case and this Honorable Court is the only

ones that can correct this injustice.

(17) Arbitrary and Capricious, a decision or action taken by an

administrative agency or inferior court — unreasonable action

without consideration or in disregard of facts or law or without

determining principles. Elwood Investors Co. v. Behme 79 Misc.

2d 910. 361 N.Y.S. 2d 488

(18) “When a Military Correction Board fails to correct an

injustice before it is acting in violation of its mandate, and such

violation, contrary to the evidence, is arbitrary and capricious.

Yee v. U.S, 512 F2d 1383-206 CtCl 388.

2!

CONCLUSION

This Petitioner should be granted.

Respectfully Submitted

Winston G. Chandler

Major U.S.A.F.R. Pro Se

i e Circle

Mabelvale, AR 72103

(501) 455-5087

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