754 F.2d 973 (Fed. Cir. 1985), 84-985, Maier v. Orr

Docket Nº:Appeal No. 84-985.
Citation:754 F.2d 973
Party Name:Pamela Lea MAIER, Appellee, v. Verne ORR, Secretary of the Air Force, Appellant.
Case Date:February 04, 1985
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 973

754 F.2d 973 (Fed. Cir. 1985)

Pamela Lea MAIER, Appellee,

v.

Verne ORR, Secretary of the Air Force, Appellant.

Appeal No. 84-985.

United States Court of Appeals, Federal Circuit

February 4, 1985

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[Copyrighted Material Omitted]

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Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Robert A. Reutershan and Richard W. Oehler, Washington, D.C., Dept. of Justice, for appellant; Lt. Col. Bruce Houston, Dept. of the Air Force, Washington, D.C., of counsel.

Earle A. Partington, Honolulu, Hawaii, for appellee; Jack F. Schweigert, Honolulu, Hawaii, of counsel.

Before MARKEY, Chief Judge, and RICH and DAVIS, Circuit Judges.

MARKEY, Chief Judge.

Appeal from a writ issued by the United States District Court for the District of Hawaii ordering the Secretary of the Air Force retroactively to reinstate Pamela L. Maier (Maier) on active duty in the United States Air Force with back pay (less that for 1977-1983 when Maier did not serve on active duty), back promotions, longevity pay, and other entitlements (including award of appropriate skill level and promotion points) which Maier would have received or earned if she had not been discharged in 1977. We reverse and remand with instructions to vacate the writ.

BACKGROUND

Maier enlisted in the United States Air Force on February 19, 1970. On August 14, 1973, during the course of a physical examination at Hickam Air Force Base, Hawaii, she was given a smallpox vaccination. 1 On August 20, 1973, she developed a total body rash diagnosed as erythema multiforme, a severe allergic reaction to the vaccination. She was treated with medication, remained on active duty, and reenlisted for a term of four years on November 20, 1973.

In October 1976, Maier was due for revaccination. In view of her earlier experience, her case was referred to a Medical Evaluation Board (MEB), whose recommendation was reviewed by the Physical Evaluation Board (PEB). On February 9, 1977, the PEB found Maier not physically fit for duty because she could not receive a smallpox vaccination. It found that vaccination was not medically advisable in her case because of her past severe allergic reaction and recommended that she be separated with twenty percent disability and appropriate severance pay.

On February 15, 1977, at Hickam Air Force Base, Maier was counselled on the results of the PEB and her right to demand a formal hearing. Air Force Form 1180, contained in her medical records and filed in the district court, carries this executed-by-an-official counselling certificate:

I certify that I have fully explained to the evaluee ... the legal results of the findings and recommended disposition of the PEB and of the case processing procedures and appeal rights as outlined AFM 35-4.

On the same day, Maier initialed and signed the form, initialed the box indicating that she concurred with the PEB's findings and recommendations and waived a formal

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hearing. Specifically, she checked the box stating:

I agree with the findings and recommended disposition of the PEB.

She did not check the alternative box stating:

I do not agree with the findings and recommended disposition of the PEB informal hearing and demand a formal hearing of the case. 2

Maier accepted an honorable discharge, effective March 10, 1977, her 20% physical disability, and $7,600 in severance pay.

After working for the armed forces as a civilian for three years, Maier submitted an application to the Air Force Board for Correction of Military Records (board) on September 21, 1980, requesting that her discharge be voided and that she be reinstated retroactively with service credit, a retroactive promotion, and back pay, on the ground that the 1973 diagnosis was incorrect and that the Air Force had failed to employ other diagnostic procedures and to attempt a revaccination.

Maier offered letters from two doctors, giving the opinion that she could in 1980 receive small doses of the smallpox vaccine and that consultation with an immunologist might have led to a different diagnosis of her vaccination-reaction problem in 1977. The letters nowhere stated that she did not have or could not have had an allergic reaction to the 1973 vaccination.

The board obtained an advisory opinion from the Air Force Surgeon General. That opinion noted that the diagnoses in 1973 and 1976 were not necessarily incorrect, that Maier had exhibited no other allergic sensitivities, that her symptoms were consistent with erythema multiforme, and that neither letter submitted by Maier denied that the severe rash was in all likelihood an allergic reaction to the smallpox vaccination. In view of the potential that, if vaccinated, she would suffer a life threatening anaphylactic reaction, the opinion concluded that Maier was properly referred for MEB/PEB action and recommended that her request for retroactive reinstatement be denied.

The Surgeon General's opinion further noted that:

the applicant received and acknowledged full counselling on her case processing, procedures and appeal rights under the provisions of AFM 35-4 and could have demanded a formal hearing or submitted a rebuttal if she felt there was error or injustice. However, she fully concurred with the findings of the PEB. We find no evidence of error or irregularity in the processing of her case.

The board concluded that the decision to separate Maier in 1977 for physical disability was based on the best evidence available at the time and was not improper or erroneous. It further found that she was not miscounselled, that no regulatory violations or irregularities had occurred, and that she had concurred in the PEB-recommended disposition.

The findings of the board included:

"The decision to separate [Maier] on 10 March 1977, by reason of physical disability with entitlement to severance pay was based upon the best evidence available at that time, and in our opinion, the documentation that has been presented for our review does not persuade us to conclude that the decision of the Air Force was improper or in error. Additionally, our review of the physical disability proceedings in [Maier's] case does not reveal that she was miscounseled, or that any violations or irregularities existed. Therefore, we find that the applicant is not entitled to a correction of her military records as a result of error on the part of the Air Force.

Though it thus concluded that correction of her record was not justified on the basis of Air Force error, the board decision contained

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the statement "sufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice." Noting that Maier apparently had a present ability to tolerate small doses of smallpox vaccine, and that to bar her reenlistment on the basis of a medical condition on her record, but no longer existing, would constitute an "injustice which warrants relief," the board recommended that "it is in the best interests of justice and the Air Force as well, to correct applicant's military records to the extent recommended."

The "extent recommended" enabled Maier's requested return to active duty, but not her requested reinstatement as of 1977, with full credit for time, back pay, allowances, and promotions in rank. On March 10, 1983, Maier reenlisted in the Air Force in the same grade she held when separated (E-4) and remains on active duty at present.

District Court Proceedings

On July 19, 1982, Maier filed a petition for writ of mandamus in the district court, reciting 28 U.S.C. Sec. 1361 as the basis for jurisdiction and seeking full back pay, constructive service credit, retroactive promotions, and longevity pay, and all other entitlements she would have received if she had never been discharged.

After a hearing, and focusing on the board's statement about "probable error or injustice", the court remanded the matter to the correction board on April 22, 1983, to reconsider whether the relief granted was adequate in light of that statement.

The board reaffirmed its former findings and recommendation, finding, on a second review of the entire record, that it "did not demonstrate the existence of probable material error or injustice." It explained that its earlier reference to an "injustice" concerned the injustice that would lie in barring her from reenlistment at the present time because she can now tolerate the smallpox vaccine. It specifically clarified that the "probable error or injustice" sentence in its earlier decision was not intended to indicate that the PEB decision or the manner in which Maier was discharged in 1977 was improper or unjust, or that she was entitled to retroactive reinstatement or similar relief. It noted that Maier's present toleration of small doses of smallpox vaccine does not establish that she was able to be vaccinated in 1977. It also reaffirmed that there were no violations of regulations or other error in the PEB proceedings or in the handling of this matter by the Air Force and that Maier had concurred in the PEB recommendation.

The board further explained:

the Air Force Physical Evaluation System was established to assist the Secretary of the Air Force to exercise his statutory authority, and designed to insure fair and impartial treatment for all members who are placed in these channels. Each case is considered individually, with due consideration given to the best interest of the member, as well as that of the Air Force. To fully protect a member's rights, each case is subject to extensive review at various levels within the Air Force to assure that the member receives every consideration to which legally entitled. Each of the boards and councils in the physical evaluation system are composed of well-qualified senior officers, including doctors, who have extensive background in evaluating the physical defects of Air Force members. Our independent review of the Physical...

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