Dodson v. U.S. Government, Dept. of Army, 92-1183
| Decision Date | 19 March 1993 |
| Docket Number | No. 92-1183,92-1183 |
| Citation | 988 F.2d 1199 |
| Parties | Edward Larry DODSON, Plaintiff-Appellant, v. UNITED STATES GOVERNMENT, DEPARTMENT OF the ARMY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
John D. Goldsmith, Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, Tampa, FL, argued for plaintiff-appellant.
Donna C. Maizel, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for defendant-appellee. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and James M. Kinsella, Asst. Director. Also on the brief were Lieutenant Colonel W. Gary Jewell and Captain Jill M. Grant, Dept. of the Army, Office of the Judge Advocate, Arlington, VA, of counsel.
Before RICH, Circuit Judge, SMITH, Senior Circuit Judge, and ARCHER, Circuit Judge.
Edward Larry Dodson appeals from the March 8, 1991 order of the United States District Court for the Middle District of Florida (No. 87-1436-Civ-T-10A) granting the United States's motion for summary judgment and denying Dodson's motion for summary judgment. The order sustained the decision of the Army Board for Correction of Military Records (ABCMR), which held that Dodson's discharge and bar from reenlistment was not the result of probable material error or injustice. We reverse and remand.
The facts of this case though tortuous are not disputed. As of April 1982, Dodson was an E-6 Staff Sergeant in the United States Army, 25th Infantry Division, Hawaii. The Army inducted Dodson in 1965 and honorably discharged him two years later. Dodson enlisted in 1974. He was promoted to sergeant E-5 in 1976 and to staff sergeant E-6 one year thereafter. He reenlisted in February 1978, again in November 1980, and in 1981 he extended his enlistment for nine months, which established August 19, 1984 as his expiration of term of service date (ETS). Dodson served overseas in Vietnam from 1966 to 1967 and in Korea from 1978 to 1979. During his long period of service in the Army, Dodson received numerous awards and decorations. 1
Pursuant to the Army's Qualitative Management Program (QMP), Dodson received his eighth annual enlisted evaluation report (EER) for the period May 1981 to April 1982, scoring 124 (EER 124) out of a maximum 125, the average score being 121. The QMP is used by the Army to screen enlisted soldiers' Official Military Personnel Files (OMPFs) to "[s]electively retain the best qualified soldiers" and "[d]eny reenlistment to [those who are] nonprogressive and nonproductive." Army Reg. 600-200, paras. 4-1, 4-2 (1982). Under the program the OMPFs of E-6 personnel, such as Dodson, are submitted to a regularly scheduled Promotion Selection Board. Army Reg. 600-200, para. 4-11.a. "From the OMPF, the board will evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted." Army Reg. 600-200, para. 4-11.b (emphasis added).
Sometime after receiving his EER, Dodson learned that a substitute rater mistakenly placed an EER 110 into Dodson's OMPF. Dodson's file, including the incorrect EER, was forwarded to the Promotion Selection Board for evaluation. When Dodson's EER 124 was later discovered at the base, 2 a personnel officer attempted to have the EER 110 returned and the EER 124 substituted, but was informed that Dodson had to appeal the EER to the EER Appeal Board, 3 which Dodson did.
On March 29, 1983, the Promotion Selection Board barred Dodson from reenlisting. In its letter of notification to Dodson, the board identified as the "basis" for the bar eight EERs, dating from Dodson's first in December 1975 to his last, which was the erroneous one of April 1982, and a 1966 nonjudicial punishment for theft of two T-shirts.
After the decision barring reenlistment, the EER Appeal Board in September 1983 ruled in Dodson's favor, invalidating the EER 110 and deleting it from Dodson's OMPF. The EER Appeal Board, however, did not complete Dodson's file by including his correct EER 124.
Dodson then attempted to appeal his reenlistment bar directly to the Army's Military Personnel Center (MILPERCEN), which oversees the QMP. MILPERCEN returned Dodson's appeal in November 1983 and directed him to submit it through his chain of command. Dodson asserts that when he attempted to appeal through his chain of command, his commanding officer gave him a direct order to wait until April 1984, when he was to return from an upcoming assignment in Korea.
In April 1984, Dodson submitted an "individual" appeal pursuant to Army Regulation 600-200, para. 4-15.a, to the Army Reenlistment Appeals Board, accompanied by recommendations from his commanders and notice of the correct EER 124. While this appeal was pending, the Army transferred Dodson, on April 16, 1984, from Hawaii to the 9th Infantry Division in Fort Lewis, Washington. Four days later, and before he left for Fort Lewis, Dodson's battalion personnel officer executed a nine month extension of Dodson's enlistment until May 19, 1985.
On November 9, 1984, the Reenlistment Appeals Board disapproved Dodson's appeal "based on [his] marginal performance of duty as reflected by his long history of below average enlisted evaluation reports, especially in [his] current grade."
After the Reenlistment Appeals Board disapproved Dodson's individual appeal, he attempted to obtain a "commander" appeal to a Reenlistment Appeals Board pursuant to Army Regulation 600-200, para. 4-15.c. His then-current battalion commander in Fort Lewis told Dodson that because he did not know him, Dodson should appeal through his former Hawaii commander; accordingly, Dodson returned to Hawaii at his own expense to pursue a commander appeal. On December 3, 1984, Dodson's former Hawaii battalion commander submitted a commander appeal to the Commander of the 25th Infantry Division, Hawaii, with the recommendations of three of Dodson's former superiors. Dodson however was notified that pursuant to Army regulations the commander appeal must occur where the soldier was stationed at the time of the appeal. 4 So, on December 7, 1984, the Commander of the 25th Infantry Division forwarded Dodson's commander appeal to the Commander of the 9th Infantry Division for "review and action." Also in December 1984, Dodson returned to Fort Lewis where he persuaded his battalion commander there to submit a commander appeal to the Commander of the 9th Infantry Division. These commander appeals, however, were discontinued by MILPERCEN on December 19, 1984 and never acted upon.
The Army honorably discharged Dodson on December 26, 1984, with a bar to reenlistment. Dodson again attempted to appeal the discharge and bar to MILPERCEN, 5 but Dodson's appeal was rejected because he was no longer on active duty. MILPERCEN advised Dodson that he should appeal to the Army Board for Correction of Military Records (ABCMR).
On March 12, 1985, Dodson applied to the ABCMR, requesting that it void his discharge, and retroactively restore him to active duty with an award of back pay. He asked in the alternative that his bar to reenlistment be lifted, that his EER 124 be inserted into his OMPF, and that he be allowed to seek reenlistment. Dodson asserted that his discharge was unjust and flawed by material error for several reasons. First, he contended that the Promotion Selection Board had considered an invalid EER in instituting the bar. Second, he asserted that the Army had assigned him to Fort Lewis during his bar appeal, thereby violating Army regulations as well as prejudicing his ability to adequately appeal. Third, he contended that while his commander appeals were pending the Army discharged him in violation of Army regulations. Finally, he argued that the Army discharged him before his extended ETS of May 19, 1985.
The ABCMR denied Dodson's application without hearing on February 26, 1986. In its Memorandum of Consideration, the ABCMR listed in the evidence of record the following EERs:
PERIOD RATING
Sep 75 to Dec 75 118
Jan 76 to Nov 76 102.5
Dec 76 to Jun 77 110
Jul 77 to May 78 121
Jun 78 to Apr 79 101.5
May 79 to Apr 80 116.5
May 80 to Apr 81 118
May 81 to Apr 82 Unrated, EER Appeal
May 82 to Apr 83 120
May 83 to Apr 84 120
The ABCMR had obtained two advisory opinions. One was from MILPERCEN which recommended that Dodson's request for reenlistment be denied based on his poor history of performance, consistent with the decision of the Reenlistment Appeals Board's decision in Dodson's individual appeal. The second was from the Office of the Judge Advocate General (JAG) which "opined that [Dodson's] bar to reenlistment was processed in accordance with applicable regulations, and that he was not denied any due process or other legal rights." The JAG believed that the transfer to Fort Lewis during the pendency of the individual appeal did not violate Dodson's rights because the Army regulation prohibiting such assignment was for the benefit of the Army, not the soldier, and therefore did not give soldiers any rights which could be violated. According to the JAG opinion, the transfer did not "substantially adversely" affect Dodson because the Reenlistment Appeals Board had before it the commander's recommendations when it denied Dodson's individual appeal. Lastly, the JAG stated that the Army did not violate any of Dodson's rights by discharging him before the expiration of his extension because the extension was a "mistake" which "was, if anything, to [Dodson's] benefit."
The ABCMR adopted the findings and conclusions of the JAG that none of Dodson's rights had been violated. The ABCMR concluded that the "apparent administrative errors" made in processing Dodson's appeals and in transferring him were not "fatal flaws of sufficient magnitude" to warrant corrective action. In doing so, it found that Dodson's performance had...
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