866 F.2d 1508 (D.C. Cir. 1989), 87-5037, Kreis v. Secretary of Air Force

Docket Nº:87-5037.
Citation:866 F.2d 1508
Party Name:John F. KREIS, Appellant, v. SECRETARY OF the AIR FORCE.
Case Date:February 07, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1508

866 F.2d 1508 (D.C. Cir. 1989)

John F. KREIS, Appellant,

v.

SECRETARY OF the AIR FORCE.

No. 87-5037.

United States Court of Appeals, District of Columbia Circuit.

February 7, 1989

Argued Nov. 1, 1988.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-01169).

Daniel M. Schember, Washington, D.C., for appellant.

Linda Halpern, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before RUTH BADER GINSBURG, SILBERMAN and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Page 1509

D.H. GINSBURG, Circuit Judge:

Appellant, John F. Kreis, challenges the corrective relief recommended by the Air Force Board for the Correction of Military Records and approved by the Secretary of the Air Force in connection with this effort to secure a military promotion. The district court dismissed appellant's complaint for lack of subject matter jurisdiction, concluding that the entire complaint raised nonjusticiable claims. 648 F.Supp. 383 (D.D.C.1986). We affirm in part, reverse in part, and remand for the district court to determine whether the Secretary's action was arbitrary or capricious.

  1. BACKGROUND

    At all relevant times, appellant was a major in the United States Air Force. In 1979, an Air Force Inspector General recommended that Major Kreis be reprimanded and reassigned "for acting inappropriately" while on an overseas military trip and "for making inappropriate comments to enlisted personnel about fellow and senior officers." The Inspector General did not consult Major Kreis during the preparation of the report but, instead, based his conclusions on third party sources.

    Following receipt of this report, Lieutenant General Hughes, commander of the Pacific Air Force, cancelled Major Kreis's previously scheduled assignment to a position of greater responsibility at the headquarters of the Tactical Air Command; instead, he reassigned appellant to a squadron operations position with less responsibility, a position similar to one appellant had held when he was but a captain. As an "indorser" on appellant's Officer Effectiveness Report (OER), Lieutenant General Hughes also downgraded the enthusiastic evaluation that the initial "rater" had given Major Kreis. Finally, Lieutenant General Hughes issued a written reprimand to Major Kreis and placed this document in appellant's official file. After a meeting with appellant, however, Lieutenant General Hughes agreed to remove the reprimand from the file.

    1. Air Force Administrative Proceedings

      Through internal administrative procedures, Major Kreis then sought removal of Lieutenant General Hughes's evaluation from his OER or, alternatively, voidance of the entire OER. After receiving testimony, the Air Force Board for the Correction of Military Records, in 1980, concluded that appellant had "demonstrated the existence of probable error or injustice." The Board then stated:

      [T]he evidence applicant has presented creates sufficient doubt in our minds that the contested report is an accurate reflection of his duty performance during that reporting period. However we do not feel that the evidence presented warrants a recommendation that the indorser's ratings and comments be voided. In an effort to solve this dilemma, and to afford applicant equity, we therefore recommend applicant's record be corrected by voiding the contested report.

      The Assistant Secretary of the Air Force accepted this recommendation on behalf of the Secretary. Pursuant to Air Force regulations concerning voided OERs, the Assistant Secretary ordered that appellant's contested OER be removed and replaced with an AF Form 77 stating: "Not rated for the above period. Report was removed by Order of the Secretary of the Air Force."

      Shortly thereafter, a selection board considered but did not select appellant for promotion to lieutenant colonel. Appellant then submitted another application to the Board, in which he argued that the void created by removal of the OER and the prejudicial effect of the AF Form 77, combined with his 1979 reassignment to a position of reduced responsibility, had prejudiced his chances for promotion. Major Kreis requested that the Board not only void his recent nonselection for promotion but also award him retroactive promotion. The Board denied this application, stating that the AF Form 77 was not prejudicial; it did not separately address appellant's 1979 reassignment.

      Page 1510

      In 1983, appellant requested that the Board reconsider its denial of retroactive promotion. Appellant submitted additional evidence which, he claimed, demonstrated the prejudicial effect of his 1979 reassignment and voidance of his OER. In addition, he argued that prior Board cases involving awards of retroactive promotion were analogous to his own. During the pendency of this application, two more selection boards passed over Major Kreis for promotion.

      Upon reconsideration, the Board reaffirmed its denial of retroactive promotion, stating that the reason for appellant's nonselection "cannot be definitively ascertained" and that the evidence submitted did not "conclusively prove" that appellant would have been promoted but for the events of 1979. The Board added that the evidence was not "sufficiently compelling to warrant a definitive finding that applicant's change in assignment was due to the results of the [Inspector General's] investigation."

      In 1984, Major Kreis again sought reconsideration by the Board. This time he asked the Board to recommend restoration of his voided OER, with Lieutenant General Hughes's evaluation deleted, as well as retroactive promotion. In the alternative, Major Kreis asked the Board to recommend that the Secretary void appellant's nonselections for promotion and refer his record to special selection boards, accompanied by a statement that "[t]he OERs before and after the voided report are more characteristic of the quality of Major Kreis' performance during the rating period [covered by the voided report]" and that Major Kreis "should have been assigned," in 1979, to a position of increased...

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