603 F.2d 914 (D.C. Cir. 1979), 77-1789, Dilley v. Alexander

Docket Nº:77-1789 to 77-1792.
Citation:603 F.2d 914
Party Name:Michael F. DILLEY, Captain, U.S. Army Reserve, et al., Appellants, v. Clifford L. ALEXANDER, Jr., Secretary of the Army, et al. Raymond W. FONTAINE, Major, U.S. Army Reserve, et al., Appellants, v. Clifford L. ALEXANDER, Jr., Secretary of the Army, et al. Milton D. O'QUINN, Appellant, v. Clifford L. ALEXANDER, Jr., Secretary of the Army. Major Russ
Case Date:February 26, 1979
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 914

603 F.2d 914 (D.C. Cir. 1979)

Michael F. DILLEY, Captain, U.S. Army Reserve, et al., Appellants,

v.

Clifford L. ALEXANDER, Jr., Secretary of the Army, et al.

Raymond W. FONTAINE, Major, U.S. Army Reserve, et al., Appellants,

v.

Clifford L. ALEXANDER, Jr., Secretary of the Army, et al.

Milton D. O'QUINN, Appellant,

v.

Clifford L. ALEXANDER, Jr., Secretary of the Army.

Major Russell A. POWELL, Appellant,

v.

Clifford L. ALEXANDER, Jr., Secretary of the Army.

Nos. 77-1789 to 77-1792.

United States Court of Appeals, District of Columbia Circuit

February 26, 1979

Argued Oct. 24, 1978.

As Amended April 9, 1979.

Rehearing Denied July 26, 1979.

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Robert M. Wright, Baltimore, Md., a member of the bar of the Court of Appeals for the State of Maryland pro hac vice by special leave of Court, and Keith A. Rosenberg, Rockville, Md., for appellants.

Louis R. Davis, Atty., Office of the Judge Advocate Gen., U. S. Army, Washington, D. C., a member of the bar of the Supreme Court of Louisiana pro hac vice by special leave of Court, with whom Earl J. Silbert, U. S. Atty., John A. Terry, Royce C. Lamberth, and Nathan Dodell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Also Charles H. Anderton, Jr., Asst. U. S. Atty., Washington, D. C., entered an appearance for appellee.

Before WRIGHT, Chief Judge, and MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

Section 266 of Title 10 of the U.S. Code provides that each board convened for the promotion of officers in the United States Army Reserve shall include an appropriate

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number of Reserve officers. Appellants are commissioned officers in the Army Reserve who were serving on active duty until early 1977. Between January and April of that year, they were involuntarily released from active duty because they were not selected (passed over) for temporary promotion to the next highest grade by two successive promotion selection boards convened in 1975 and 1976. 1 Upon notice of their pending release, appellants filed suit in federal district court claiming, Inter alia, that their separation from active duty would violate section 266 because the 1975 promotion selection boards that considered their applications had not included Reserve officers. 2 The district court, in an opinion and order dated July 27, 1977, granted the Army's motion for summary judgment on the ground that absent a showing of prejudice, it could not be said that the Army's treatment of appellants' applications had been arbitrary, capricious, or contrary to law. Dilley v. Alexander, 440 F.Supp. 375, 378-79 (D.D.C.1977). We reverse and hold that appellants are entitled to be reinstated to active duty and to be considered anew by two properly constituted promotion selection boards.

I

The Army's current promotion procedures have their genesis in The Officer Personnel Act of 1947. Act of August 7, 1947, ch. 512, 61 Stat. 795. The 1947 Act abandoned the Army's seniority-based promotion system in favor of one whose cornerstones are promotion selection boards specifically designed by the statute. 3 This enactment was followed by the passage of The Armed Forces Reserve Act of 1952, Act of July 9, 1952, ch. 608, 66 Stat. 496, which substantially reorganized the reserve components of each branch of the military service. The Reserve Act, styled "the Reserve bill of rights" during congressional consideration of the bill, 4 was intended, among other things, "to correct existing defects in policies and practices relating to the Reserve and the individual members thereof." S.Rep.No.1795, 82d Cong., 2d Sess. 2 (1952). Prominent among the rights set forth in the Reserve Act was the provision originally enacted as section 254, now codified at 10 U.S.C. § 266 (1976). 5 It provides:

(a) Each board convened for the appointment, promotion, demotion, involuntary release from active duty, discharge, or retirement of Reserves shall include an appropriate number of Reserves, as prescribed by the Secretary concerned under standards and policies prescribed by the Secretary of Defense. 6

In accordance with this provision and to guide the military departments in effecting

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it, the Secretary of Defense issued Department of Defense Instruction No. 1205.4, which provides:

  1. All boards convened for the appointment, promotion, demotion, involuntary release from active duty, discharge, or retirement of members of the Reserve components shall be constituted as prescribed by the appropriate Secretary, and shall include appropriate numbers of members from the Reserve components.

  2. The intent of the Congress in this Section (266) is clear, that a member of the reserve component who is the subject of any of the indicated board actions shall be assured a fair representation of reserve membership on the board. The Secretaries of the military departments will, with due regard to availability of qualified reservists, pertinent statutory provisions, the nature of the board action, and the categories, regular and reserve, which may be considered by the board, provide in the membership of the indicated boards, to the fullest practicable extent, a fair and adequate representation of members from the reserve components.

This directive, like the statute that prompted it, applies to boards convened for consideration of temporary promotions in the Army. The procedures governing conduct of those boards are set forth in Army Regulation 624-100, promulgated pursuant to 10 U.S.C. § 3442(c) (1976). 7 Under this regulation, whenever non-Regular officers are among those to be considered for promotion, the promotion board must, "where practicable, include at least one officer of the Reserve components." AR 624-100, § II, P 16(b)(5). Regular and Reserve officers under consideration are divided into two groups without reference to component. The first group, the "primary zone," consists of all officers with certain dates of rank specified by the Secretary making them the most senior. The other group, the "secondary zone," includes officers with similarly specified dates of rank making them the more junior. Id. § I, P 2(i)-(j). Before a particular promotion board is convened, 8 the Secretary issues letters of instruction indicating what percentage of officers may be chosen from each of the two zones and specifying what the overall number of officers to be recommended for promotion is to be. See id. § II, P 16(c). Within the parameters set by these quotas, the promotion boards make recommendations based on the "best qualified" method whereby officers receiving the highest of three possible grades are selected by the board for temporary promotion to the next highest grade. Consistent with the quotas set by the letters of instruction, the vast majority of selections come from the primary

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zone. The recommendations are then passed on to the Secretary for action. Army Regulation 635-100 provides that commissioned officers who twice fail to be selected for promotion under AR 624-100 are to be involuntarily released from active duty. 9

It was in the foregoing context that appellants' applications for promotion to temporary grades came before the 1975 promotion selection boards. Some of appellants were candidates before the board considering promotions to the temporary grade of lieutenant colonel; the rest were under consideration by the board making recommendations for promotion to the temporary grade of major. Apparently as a consequence of inadvertent administrative error, neither of these "1975 Boards" included even a single Reserve officer among its membership. The promotion board for lieutenant colonel awarded 15% Of its quota of vacancies to officers in the secondary zone; the promotion board for major awarded 15% Of its available vacancies to secondary zone officers. 10 None of appellants, all of whom were in the primary zone, were recommended for promotion.

In the Fall of 1975, appellants and others similarly situated applied to the Army Board for Correction of Military Records ("Corrections Board") requesting that their records be adjusted to eliminate reference to their nonselection by the 1975 Boards. In addition to alleging various procedural and other defects in the promotion selection process, 11 appellants claimed that the lack of Reserve membership on the 1975 Boards meant that the boards were without jurisdiction to consider their applications. Following a hearing on the claims, the Corrections Board rendered an interim decision rejecting all claims except those based on section 266 and its administrative progeny. With respect to the absence of Reserve membership on the 1975 Boards, the Corrections Board observed:

(W)hile it appears that the Department may not have complied with the intent (of section 266) to have an appropriate number of Reserve Component members on the . . . 1975 promotion boards when considering Reserve officers, the written depositions of the selection board members indicate that an individual's component had little or no bearing in their consideration and selection of an officer for promotion. Further it appears from a review of the entire matter that any decision or other action by the Department to omit Reserve Officers from promotion selection boards was not done in an arbitrary and capricious manner or with malicious intent to harm or prejudice the applicants' promotion chances as Reservists. . . . (I)n viewing the situation in the most favorable light of the applicants, it is apparent the absence of Reservists from the . . . 1975 selection board may have deprived them of consideration in the manner intended; . . . although the applicants have not shown that they have been harmed

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