Abruzzo v. United States

• Decision Date: 16 April 1975
• Docket Number: No. 141-73.,141-73.
• Citation: 513 F.2d 608
• Parties: Douglas W. ABRUZZO v. The UNITED STATES.
• Court: U.S. Claims Court

513 F.2d 608

Douglas W. ABRUZZO v. The UNITED STATES.

No. 141-73.

United States Court of Claims.

April 16, 1975.

C. Valentine Bates, Gainesville, Fla., attorney of record for plaintiff. Jones, Bates & DeCarlis, Gainesville, Fla., of counsel.

Stephen Schachman, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, New York City, for defendant.

Before NICHOLS, KUNZIG and BENNETT, Judges.

OPINION

PER CURIAM:

This case comes before the court on plaintiff's exceptions to the opinion, findings of fact,^* and conclusion of law filed, July 22, 1974, by Trial Judge Hal D. Cooper pursuant to Rule 134(h). Upon consideration thereof, together with the briefs of counsel (oral argument having been waived) the court agrees with the trial judge's opinion as hereinafter set forth. We do not wish to be understood, and do not understand the trial judge as holding, that Correction Boards, under 10 U.S.C. § 1552(a), lack authority to grant backdated promotions in appropriate cases. The court affirms and adopts the said opinion and findings as the basis for its judgment in this case. Therefore, the court concludes that the plaintiff is entitled to recover on his claim for per diem, in the sum of $2,826, and judgment is entered for plaintiff in that sum. In other respects the plaintiff is not entitled to recover and the petition is dismissed.

OPINION OF TRIAL JUDGE

COOPER, Trial Judge:

Plaintiff, a Marine Corps reserve officer and an intensely dedicated military aviator, presents essentially two claims for relief, the first relating to his promotion, back pay, allowances, and an interservice transfer to the Air Force, while the second seeks an award for per diem accrued while he was on active duty with the Marine Corps. The Board for Correction of Naval Records granted plaintiff only partial relief on the first claim, while the per-diem claim was denied in its entirety by the Comptroller General.

Based on the record before the Board, and the evidence received at trial, it is concluded that the additional relief requested on the first claim must be denied, largely as a matter of law, but that plaintiff is entitled to a judgment for the claimed per diem.

I

Plaintiff was a tactical fighter pilot for the Marine Corps, serving from 1968 to 1971, with a tour of duty in Vietnam. Upon returning to the United States in January 1970, plaintiff submitted a request for an interservice transfer to the Air Force; however, the Marine Corps failed properly to process the transfer request, with the result that plaintiff's request never reached the Air Force. Meanwhile, plaintiff became involved in some incidents which resulted in his receiving nonjudicial punishment and, ultimately, his hospitalization for psychiatric treatment. By the time he was declared fit for duty, his obligated 3 years of duty had been completed and he was released on February 1, 1971.

Throughout 1970, and up to the present, plaintiff has maintained that his request for an interservice transfer resulted in a broad pattern of discrimination against him which caused him to suffer a nervous breakdown and which has destroyed his desired career as a military aviator.

Although Marine Corps' regulations plainly required each transfer request to be processed through channels to the Secretary of the Navy and then to the Secretary of the Air Force, plaintiff's request progressed only to Marine Corps Headquarters where it was disapproved and placed in his records. Even after plaintiff obtained the aid of congressional inquiries regarding the matter, the Marine Corps did not properly forward the request to the Secretary of the Navy. When, subsequent to his release, plaintiff was finally able to have his request reviewed by the Secretary of the Navy, it was too late to have it considered on its merits because he was no longer on active duty. It is clear that the failure of the Marine Corps properly to process the transfer request effectively negatived plaintiff's right to have the transfer considered on its merits.

In May 1971, plaintiff sought relief from the Board for Correction of Naval Records, asking, inter alia, that an adverse fitness report he had received be removed from his records; that his nonjudicial punishment be reviewed and removed from his records; that he be promoted to captain, with a date of rank commensurate with his peers; and that the Board aid him in his request for a transfer. While his request for relief was pending before the Board, he was passed over for promotion a second time and was involuntarily discharged.

On February 26, 1973, the Board, relying on a medical opinion that plaintiff's actions were reasonably attributable to a psychotic condition, directed removal from his records of all material regarding the nonjudicial punishment and the adverse fitness report. The Board further directed that his records should be corrected to show that he was not previously considered for promotion, so that he could be considered for promotion in 1973. The Board declined, on jurisdictional grounds, to take any action on his transfer request. Thereafter, plaintiff's discharge was canceled, he was reinstated in the Marine Corps Reserve, and, in 1973, he was selected for promotion to captain.

Believing that he has received less than all of the relief to which he is entitled, plaintiff asks this court (1) to set aside his release from active duty, (2) to award him a date of rank of captain commensurate with his peer group, (3) to grant him full pay and allowances of an active-duty officer, from February 1, 1971, (4) to order his appointment as an active-duty reserve officer in the Air Force for a tour of duty of not less than 3 years, and (5) to direct the Naval Bureau of Medicine and Surgery to reevaluate the diagnosis that he was suffering from delusions of discrimination and was paranoid.

With respect to his release from active duty, plaintiff maintains that it should be declared null and void because of the procedural defects in the Marine Corps' handling of his interservice transfer request. While it is clear that there were such defects, that is no basis on which to give plaintiff the requested relief. Plaintiff incorrectly equates his undoubted right to request an interservice transfer to an obligation by the Marine Corps to retain him on active duty until that request has been finally approved or disapproved. In fact, no such obligation exists. Plaintiff's tour of duty was not in any way related, or otherwise contingent on, the proper processing of the transfer request. To the contrary, reserve officers like plaintiff can, under 10 U.S.C. § 681(a), be released from active duty at any time¹ and the conditions and circumstances governing that release rest within the sound discretion of the service. Denton v. United States, 204 Ct.Cl. 188 (1974); Mercereau v. United States, 155 Ct.Cl. 157, 158 (1961).

Moreover, the evidence overwhelmingly compels the conclusion that even had the transfer request been properly processed, it would have been disapproved by the Air Force. Hence, the failure properly to process the request, while inexcusable, must be viewed as harmless error.

There being nothing improper in his release from active duty, it follows that plaintiff's claim for back pay and allowances for the period subsequent to his release must also be denied.

What has been said also bears on plaintiff's request that this court order plaintiff's appointment as an active-duty officer in the Air Force. It is well settled that it rests within the discretion of the particular armed service whether to place a reserve officer on active duty, 10 U.S.C. § 672(d) (1964); DeBow v. United States, 434 F.2d 1333, 1336, 193 Ct.Cl. 499, 504 (1970), cert. denied, 404 U.S. 846, 92 S.Ct. 150, 30 L.Ed.2d 84 (1971); Anthony v. United States, 179 Ct.Cl. 923 (1967); Merriott v. United States, 163 Ct.Cl. 261, 264 (1963), cert. denied, 379 U.S. 838, 85 S.Ct. 76, 13 L.Ed.2d 45 (1964). It is equally clear that the transfer of an individual from one service to another lies within the sound discretion of the service secretaries involved and the Secretary of Defense. For this court to order the Air Force to accept plaintiff as an active-duty reserve officer would be to substitute its judgment for the discretion plainly lodged in that service and would be wholly inappropriate. Anthony v. United States, supra; cf. Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953).

With respect to plaintiff's request that his promotion to captain be backdated to that of his peers, the same problem exists. The federal courts are not in the promotion business and the relief which plaintiff here seeks — i. e., the backdating of his promotion — is beyond the power of this court to grant. Brenner v. United States, 202 Ct.Cl. 678 (1973), cert. denied, 419 U.S. 831, 95 S.Ct. 54, 42 L.Ed.2d 56 (1974); Muldonian v. United States, 432 F.2d 443, 193 Ct.Cl. 99 (1970); Clinton v. United States, 423 F.2d 1367, 191 Ct.Cl. 604 (1970). This is so notwithstanding the fact the Board found it was an injustice and unfair to plaintiff for him to have been previously considered for promotion with the derogatory material in his records, and notwithstanding the fact plaintiff was immediately selected for promotion once that material was removed. The difficulty is simply that the promotion of an officer is a discretionary matter dependent on the particular circumstances and needs of the service. There is no basis from which it may be...