Bowes v. United States, 380-79C.

• Decision Date: 08 April 1981
• Docket Number: No. 380-79C.,380-79C.
• Citation: 645 F.2d 961
• Parties: Robert S. BOWES III v. The UNITED STATES.
• Court: U.S. Claims Court

645 F.2d 961

Robert S. BOWES III v. The UNITED STATES.

No. 380-79C.

United States Court of Claims.

April 8, 1981.

Jack E. Carter, Fayetteville, N. C., attorney of record, for plaintiff. Barrington, Jones, Witcover, Carter & Armstrong, P.A., Fayetteville, N. C., of counsel.

Robert L. Bombaugh, Washington, D. C., with whom was Acting Asst. Atty. Gen. Thomas S. Martin, Washington, D. C., for defendant. Major Roy L. Dodson, Dept. of the Army, Washington, D. C., of counsel.

Before FRIEDMAN, Chief Judge, COWEN, Senior Judge, and KASHIWA, Judge.

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

FRIEDMAN, Chief Judge:

The plaintiff in this military pay case challenges the procedures by which he was given a letter of reprimand that was placed in his Official Military Personnel File. Following the reprimand and, according to the plaintiff, as a result of it, he was twice passed over by selection boards for promotion to the permanent rank of major, and as a consequence, was honorably discharged from the Army. In this suit, he seeks elimination of the letter of reprimand from his file, restoration to duty, promotion to the permanent rank of major, and backpay and allowances. Both parties have moved for summary judgment, and we heard oral argument. We hold that the procedures the Army followed in issuing the letter of reprimand and placing it in the plaintiff's file were proper. Accordingly, we grant the defendant's motion for summary judgment and dismiss the petition.

I.

In 1972 the plaintiff was on active duty as a major in Vietnam, serving as an adviser to the Army of the Republic of Vietnam. On January 12, 1973, Major General Garth, the Commander of the Third Regional Assistance Command in South Vietnam, issued a proposed letter of reprimand to the plaintiff. The first two paragraphs of the letter stated:

1. It has been reported to me that on 28 November 1972 you approached Corporal Le Van Thon, an Army of the Republic of Vietnam soldier, and gave him 50,000 Piasters for the purpose of conversion into US Currency (greenbacks) on the black market. When you noted that CID agents were in the area, you attempted to withdraw from the illegal conversion, but on 3 December 1972, you accepted $100.00 in US currency from Corporal Thon. Further, when confronted by police authority you admitted selling war trophies on the black market in Saigon, Republic of Vietnam, for the purpose of personal profit.

2. These activities are a serious violation of regulations governing the conversion of money in Vietnam and the appropriate disposition of war trophies. Your conduct is even more reprehensible because you indicated a desire to convert up to 222,000.00 Piasters (about $450.00) and, as a custodian of Assistance In Kind funds, the faith and trust placed in you was called into question. Further, in your capacity as advisor and custodian of funds, your sale of US produced furniture shortly before you instituted the conversion transaction, permitted speculation that you converted the receipt of the sale to your own use and benefit.

The letter stated that the plaintiff's actions "have resulted in severe embarrassment not only to yourself and your associates in advisory capacities, but upon the Officer Corps, this Command, and the United States Government" and "admonished" the plaintiff "to conduct yourself in the future in accordance with those high standards required of an officer of the United States Army." The letter further stated: "This letter of reprimand is imposed as an administrative measure and not as punishment under Article 15, UCMJ. It is forwarded for inclosure in your Official Military Personnel File (OMPF) maintained by The Adjutant General."

Prior to the sending of the letter of reprimand, General Garth had proposed to impose nonjudicial punishment upon the plaintiff under Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815, for the plaintiff's violation of the Army currency conversion regulations "by converting piasters into U.S. currency (5 twenty dollar bills)." The plaintiff rejected the Article 15 punishment and instead demanded trial by court-martial (as Article 15 permits). He appended a statement giving reasons why he believed he should not be court-martialed.

Court-martial charges then were preferred against the plaintiff, alleging in the same language as the proposed imposition of nonjudicial punishment that he had violated the currency conversion regulations. The charges were referred to an investigating officer who, after hearing sworn testimony, recommended that the plaintiff not be court-martialed because, in his judgment, the CID agents had entrapped plaintiff into violating the currency directives. The investigating officer recommended that since the plaintiff previously had declined nonjudicial punishment under Article 15, the plaintiff should "be given a strong administrative admonishment or reprimand."

The proposed letter of reprimand directed the plaintiff to submit a written reply in accordance with the governing regulation (discussed infra p. 964). The plaintiff filed a lengthy response. With respect to the currency conversion incident, the plaintiff's reply included the following statements:

There are several matters related in the letter of administrative reprimand which are incorrect or misleading. The letter states that when I noted that CID agents were in the area, I attempted to withdraw from the conversion. I did not know or have any idea that Corporal THON had reported the incident to the CID. I withdrew from the conversion because I thought better of such conduct and realized it was not befitting an officer.

* * * * * *

At no time did I "accept" any U.S. currency from CPL THON. After I told him that I wanted the piastres back, he, unbekownst sic to me, reported this to the CID agents. The CID agents disregarded this and instructed him to give me the U.S. currency anyhow. Whether it was the momentum of of sic the CID's plan or whether CPL THON had an ulterior motive, CPL THON accomplished the instructions given him by approaching me from the rear and shoving the U.S. currency into my fatigue trouser pocket. I was then apprehended by the CID. At the time, I believed that he was placing in my pocket the piastres which I had requested from him the previous afternoon.

With respect "to the sale of `war trophies,'" the plaintiff stated that because of the Republic of Vietnam Army's scarcity of ammunition in the area, he decided to "scrounge" it, that he traded weapons that the Republic of Vietnam Army had captured from the enemy for "large quantities of ammunition that were scheduled for destruction or turn in" and that he understood that

the directives pertaining to dealing in war trophies appled sic only to weapons captured by U.S. forces which automatically become the property of the U.S. Government. Since the weapons available to me were not captured by U.S. forces, I believed that I could use these weapons for sale or trade.

The plaintiff's reply did not respond to the statement in General Garth's letter that the plaintiff's "sale of US produced furniture shortly before you instituted the conversion transaction, permitted speculation that you converted the receipts of the sale to your own use and benefit."

On January 20, 1973, the letter of reprimand was forwarded to the Department of the Army for inclusion in the plaintiff's Official Military Personnel File, together with the enclosures relating to the court-martial charges and the report of the investigating officer. The governing regulation required that the plaintiff's response be included in the file (see p. 964, infra), and the record shows that in July 1977 it was part of the file. At oral argument the plaintiff conceded that his response was included.

Three years later, on January 12, 1976, the plaintiff filed a letter of appeal with the Department of the Army Suitability Evaluation Board (Suitability Evaluation Board). The Army established this board "as the appeal authority for matters of adverse information entered in the Official Military Personnel File." ¶ 5-1, Army Regulation (AR) 600-37. The plaintiff requested that the letter of reprimand and all pertinent documents be removed from his file "or at the minimum, that those allegations contained in the letter which were not the subject of any formal investigation be eliminated."

The Suitability Evaluation Board denied the appeal on the ground that the plaintiff had "not submitted substantive evidence as required by paragraph 5-3, AR 600-37 to show that the letter of reprimand is either unjust or untrue." The Board "noted that by your own admission you made arrangements to convert a substantial amount of piasters to US currency, a conversion which was a clear violation of the currency regulations then in effect, a fact which you either knew or should have known."

Following the decision of the Suitability Evaluation Board, the plaintiff filed with the Department of the Army Board for the Correction of Military Records (Correction Board) an application to remove from his Official Military Personnel File...