599 F.2d 984 (Fed. Cir. 1979), 131-77, Doyle v. United States

Docket Nº:131-77
Citation:599 F.2d 984
Party Name:Doyle v. United States
Case Date:May 16, 1979
Court:Court of Federal Claims
 
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599 F.2d 984 (Fed. Cir. 1979)

Major Leo D. DOYLE et al. [*]

v.

The UNITED STATES.

Major Joe L. ADAMS et al.*

v.

The UNITED STATES.

Nos. 131--77, 275--77.

United States Court of Claims.

May 16, 1979

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Robert M. Wright, Baltimore, Md., attorney of record, and Keith A. Rosenberg, Washington, D.C., of counsel, for plaintiffs. Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., of counsel.

George M. Beasley, III, Washington, D.C., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D.C., for defendant. Marc J. Fink, Capt. L. Neal Ellis, Jr., and Capt. Louis R. Davis, Dept. of the Army, Washington, D.C., of counsel.

Before FRIEDMAN, Chief Judge, and DAVIS, NICHOLS, KASHIWA, KUNZIG, BENNETT and SMITH, Judges, en banc.

ON PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTIONS FOR SUMMARY JUDGMENT

BENNETT, Judge:

In these consolidated cases, before us on cross-motions for summary judgment, plaintiffs, formerly commissioned officers in the United States Army Reserve (USAR) contest their release from active duty resulting from their twice having been passed over for promotion by selection boards in 1974 and 1975, 1 and contend that the decision of the Army Board for the Correction of Military Records (Correction Board) in denying their claims was arbitrary, capricious, and contrary to law. They allege that defects in the composition and decision of those boards render their separation unlawful, and they seek back pay from the dates of their release, the correction of their records, and restoration to active duty commissioned status. We conclude that plaintiffs' claims are justified in part and grant judgments accordingly.

I

In the Officer Personnel Act of August 7, 1947, ch. 512, 61 Stat. 795, Congress changed the prior practice under which Army officers below the grade of colonel were promoted solely on the basis of seniority.

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The new system provided for the selective promotion of those Regular and Reserve Army officers on the basis of their qualifications for the next highest grade. The process was accomplished through selection boards (composed of at least five officers) which chose from among all of the officers eligible for promotion because they had been in a particular rank for a certain time.

The selection board procedure is used for promotion of both Regular and Reserve officers, and covers promotions to temporary as well as permanent rank. 2 In the case of selection boards convened for the recommendation of Reserve officers for promotion to permanent rank, '(s)o far as practicable, at least one-half of the members of the board must be reserve officers.' 10 U.S.C. s 3362(b). An essential element of this merit promotion system is the provision that officers who have not been recommended for promotion to permanent rank by two consecutive selection boards are released from active duty. 10 U.S.C. ss 3299(h), 3303; Army Reg.No. 624--100, 36 (July 29, 1966) (hereinafter Army regulations cited as AR).

Separate selection boards consider promotions to permanent rank for Regular and Reserve officers. In the case of promotions to temporary rank, however, the same selection board may consider both Regular and Reserve officers and select the total number authorized for promotion from within this combined group. Statute requires that whenever a board considers the promotion of Reserve officers, such board 'shall include an appropriate number of Reserves, as prescribed by the Secretary concerned under standards and policies prescribed by the Secretary of Defense.' 10 U.S.C. s 266(a). Regulation requires that Reserve officers, twice passed over for promotion to the same temporary rank, be released from active duty or retired if appropriate. 3

In the case of temporary promotions (unlike permanent ones), the officers whom the board considers are divided into two categories: those in the primary zone and those in the secondary zone. An officer's placement in one or the other zone depends upon the length of time he has served in the rank held. Officers in the secondary zone have been in rank a shorter time than those in the primary zone. The officers in the primary zone are viewed as the group that can provide sufficient officers to meet the Army's need in the next year for officers in the higher grade. The secondary zone, on the other hand, is designed to enable the Army to advance younger and more capable officers ahead of both their contemporaries and those in the primary zone. See AR 624--100, 2i, 2j, 14.

The Secretary each year sets the maximum number of officers the selection board may promote, and regulations specify the maximum percentage that may be selected from the secondary zone. AR 624--100, 23b. Since the officers in the secondary zone are junior in rank to those in the primary zone, those selected from the secondary zone must be better qualified than the officers in the primary zone who were not selected. Because of the limit on the total number of officers to be promoted, each selection from the secondary zone precludes a selection from the primary zone.

The nonselection of an officer in the secondary zone, unlike that of an officer in the primary zone, does not constitute a passover for promotion for purposes of the mandatory

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separation after two nonselections. AR 624--100, 25. At some point, however, an officer in the secondary zone who has not been promoted will be transferred to the primary zone.

Proceedings before the selection board, which are secret, involve a review of the written records of the officers. No officer or his representative may appear before the board, although an officer may write the board concerning any matters believed important to a proper consideration of his record. 10 U.S.C. ss 3297(e), 3362(f); AR 624--100, 16, 24; AR 135--155, 3--10 (Aug. 30, 1974). Because of the secrecy of selection board proceedings, there is some uncertainty concerning the mechanics of the selection process. Usually, each member of the board evaluates each officer's file independently and without discussing it with other members, and then gives the officer a numerical rating; the officers with the highest scores are selected. If, at the point where the limit on the number of promotions is reached, there are more officers with the same score than can be promoted, the board members reevaluate those officers together with those whose scores are immediately above and below. In such reevaluation they may discuss individual officers. See Ford, Officer Selection Boards and Due Process of Law, 70 Mil.L.Rev. 137, 148--51 (1975).

The regulations require that the boards recommend for promotion to the grades of major through colonel and chief warrant officer those officers determined to be 'best qualified' for promotion, i.e., those to whom the selection board has given the highest rating.

Two administrative procedures are available for officers who wish to challenge their nonpromotion by a selection board. If the Army concludes that the officer's record before the selection board contained material error, a standby advisory board will be convened. AR 624--100, 18b; AR 135--155, 3--14b. Correction boards sometimes refer cases to standby boards and review their determinations. A standby board compares an officer's corrected record with randomly selected records of other officers, some of whom the selection board promoted and others it rejected. If, upon such reconsideration, the standby advisory board gives the rejected officer a rating high enough to equal the ratings of the officers before it whom the selection board has selected, he is promoted.

A nonselected officer also may seek relief from the Army Board for the Correction of Military Records. That board implements 10 U.S.C. s 1552, which authorizes the Secretary, acting through a board of civilians, to change any serviceman's military record to correct an error or remove an injustice. Application to the board does not, however, stay any other proceedings which are pending against the applicant. AR 15--185, 9 (June 4, 1974). Although in certain circumstances the board may take final action on behalf of the Secretary, see Ford, supra, 70 Mil.L.Rev. at 154, in most cases the board merely makes recommendations to the Secretary, who has final decisional authority.

In 1974 and 1975 the plaintiffs were Reserve officers serving on active duty in the grades of major, captain, and chief warrant officer, CW2. Because of the time they had been in rank, they were in the primary zone for promotion. This meant that if they were twice not promoted for the same temporary rank they would be released from active duty and retired if appropriate.

Plaintiffs were considered by 1974 and 1975 selection boards (the size of which ranged from six to 15 members) but were not among those selected by those boards for temporary promotion. As a result, they were notified that they would be released from active duty 90 days after the date of notification. 4 None of the 1974 and 1975 boards had any Reserve members.

The 1974 selection boards for the three grades here involved selected for promotion 1,072 of the 1,944 officers in the primary

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zone they had considered for promotion (55.1 percent). For the 1975 boards, the figures were 1,487 of the 2,901 officers considered (51.3 percent).

Subsequent to the decision of the selection boards, the plaintiffs discovered that the boards had not included any Reserve officers. In the latter part of 1975, plaintiffs filed applications with the Correction Board to set aside their nonselection. They...

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