Grieg v. United States, 258-78.

• Decision Date: 28 January 1981
• Docket Number: No. 258-78.,258-78.
• Citation: 640 F.2d 1261
• Parties: John M. GRIEG v. The UNITED STATES.
• Court: U.S. Claims Court

640 F.2d 1261

John M. GRIEG v. The UNITED STATES.

No. 258-78.

United States Court of Claims.

January 28, 1981.

Neil B. Kabatchnick, Washington, D. C., attorney of record, for plaintiff.

Louis R. Davis, with whom was Asst. Atty. Gen., Alice Daniel, Washington, D. C., for defendant; Lynn J. Bush, attorney of record, Washington, D. C.; Major Scott Magers, Dept. of the Army, of counsel.

Before KASHIWA, BENNETT and SMITH, Judges.

OPINION

BENNETT, Judge:

This is a military pay case in which plaintiff seeks to have the court void an OER and then grant further relief as a result of that correction of plaintiff's military records. We conclude that it would be improper to void the OER. Therefore, we hold for defendant. In doing so, we reverse the decision of the trial judge but accept most of his findings.¹ Such findings of fact as are necessary to our decision are stated herein. This case again presents to the court important questions concerning our jurisdiction and permissible scope of review. It is on the interpretation and application of guidelines which have been laid down for the resolution of these cases that we respectfully differ with the learned trial judge. We think he has exceeded the court's authority. On the appealing facts of plaintiff's case, it is tempting to do so. But, we must be ever mindful that this is a court of limited jurisdiction.

Plaintiff entered on extended active duty on October 4, 1958, as a second lieutenant in the Army Reserve. He served on active duty thereafter continuously until November 1, 1973, reaching the rank of temporary major. He was an officer in the Regular Army almost all of this time and achieved a record noted for competent and faithful discharge of duty. He was discharged on November 1, 1973, pursuant to statute, after he was twice considered but not selected for promotion to the permanent grade of major. His claim is that the promotion nonselections were due to an erroneous officer effectiveness report (OER) covering the period from November 17, 1967, to February 20, 1968. He seeks back pay, correction of his records, promotion, placement on the retired list, and ancillary relief. Plaintiff has sought and been denied administrative relief by the Army under AR 623-105 and by the Army Board for the Correction of Military Records. The board considered plaintiff's application in executive session. He was not granted a hearing until he came to the court. His suit is timely.

Plaintiff was an Infantry officer who performed two tours of duty in Vietnam, and as leader of a Special Forces team was awarded the Bronze Star Medal, among others. Thereafter, and after completing an advanced Infantry officer career course at Fort Benning, Georgia, he was assigned to the Army Arctic Test Center at Fort Greely, Alaska. There he was made a test officer in the Infantry Airborne and Individual Equipment Test Division. Lt. Col. Alfred E. Williams was his division chief. Maj. Herbert Lee Gregg was senior test officer of the division and was plaintiff's OER rater. Lt. Col. Williams was plaintiff's OER indorser.

While at Fort Greely in August 1967, plaintiff received alert orders that he was being assigned to Vietnam for a third tour there and that he was to report no later than December 28, 1967. Plaintiff's wife and infant child had accompanied him to Fort Greely. His wife was upset at the prospect of a third tour in Vietnam because she was expecting another child in December 1967. She also knew of other officers who had not been called upon to do so much duty in Vietnam and resented what she believed was unjust treatment of her husband. Plaintiff was made aware of these feelings in no uncertain terms and, agreeing with her, tendered his resignation from the Army. The resignation was not accepted because of the continuing military need for his special qualifications. However, supplemental orders were issued changing his reporting date for the Vietnam assignment to March 25, 1968. He performed that third tour with distinction, winning two Oak Leaf Clusters for his Bronze Star.

There is no dispute about the high quality of plaintiff's service prior to receipt of the Vietnam alert notice. The OER rendered on his performance of duty from November 17, 1967, to February 20, 1968, however, contained some criticism. While praising plaintiff's superior technical competence and stating that in the rating period he had performed his assigned duties in a superior manner, the rater's comment also stated, in pertinent part:

After the tests were completed, MAJ Grieg failed to prepare the reports of tests in the proper format or within the required time frame. When questioned about the progress that he was making on the reports, he displayed a very negative attitude.

Plaintiff's indorser, Lt. Col. Williams, added the following comments on the OER:

MAJ Grieg was a superior officer until he received his orders to Vietnam. The last 30 days that he was assigned to this Test Division his dependability was seriously affected. He conducted two arctic service tests during the test season and gathered adequate test data. One of the test reports he wrote had to be completely rewritten by other officers of this Test Division; the other test report had to have major modifications and corrections made on it. MAJ Grieg is capable of producing superior test reports as indicated by the reports he submitted for the previous test season. During MAJ Grieg's last 30 to 45 days that he was assigned to this test division he displayed a very negative attitude toward the Army.

The rater and indorser testified at the court trial and reiterated their views as expressed on plaintiff's OER. Plaintiff's testimony denied the factual accuracy of these comments and represented that because of his prospective departure from the Test Center that he, in fact, accelerated his work and completed it in proper form and content well before his scheduled departure date, and in sufficient time for its review by the division review board. At the trial, plaintiff's testimony was supported by that of a former subordinate, Jack C. Cook, Jr., and by Mrs. Grieg. It is a fact that the review board found with respect to one of plaintiff's reports that it should include certain additional data plaintiff had developed, and amended it accordingly. Also, the reports were prepared in final form for distribution prior to plaintiff's departure from the Test Center.

The Army Electronics Command in a communication dated February 5, 1968, commended plaintiff's performance, referring among other things to his "great personal sacrifice" and to the "outstanding manner" in which plaintiff and his assistant cooperated to prevent delay and overcome technical difficulties. The communication concluded with the statement, "The very eminently satisfactory manner in which this mission was accomplished reflects most highly on Major Grieg's * * * capability and * * * devotion to our nation's defense." The foregoing commendation was forwarded to plaintiff by the commanding officer of the Test Center, Col. Nabors, with a covering communication which praised plaintiff's performance and congratulated him "for a job outstandingly well done."

Plaintiff was considered but not selected for promotion to the permanent grade of major by Army selection boards that convened on January 24, 1972, and January 31, 1973. He was passed over for promotion to the temporary grade of lieutenant colonel, AUS, by a selection board that convened on September 5, 1972. Pursuant to law he was therefore discharged on November 1, 1973. On plaintiff's application he was appointed a major in the Army Reserve on October 12, 1973. The trial judge found that the principal factor in plaintiff's being passed over for promotion was the comparatively low OER that was rendered on him for the last 3 months of this tour of duty as a member of the division at the Test Center, Fort Greely, Alaska. Plaintiff received three OERs while at the Test Center. His composite score on the first one was 203.7. The second was 209.1. The third one, here in issue, was 166.0. This represented a decline of 37.7 points compared with the first OER and 43.1 points when compared with the second. The low OER was the lowest composite score on any OER for plaintiff during his entire military service. Excluding this one OER, his composite scores for his entire service averaged 202.2. The low OER was prepared after plaintiff left Fort Greely and he did not see it until 1972 when he made inquiry after being passed over for promotion in that year.

Plaintiff's first challenge to the OER for the period November 17, 1967, to February 20, 1968, was on October 5, 1973, when he sought a correction of his record under the provisions of 10 U.S.C. § 1552 (1976) and AR 15-185 by an appeal to the Army Board for the Correction of Military Records. He did not pursue this appeal immediately because, as later discussed, he first sought to exhaust other administrative relief within the Army itself. However, he amended his appeal to the board when the other avenue of relief was unsuccessful and his application was considered on October 19, 1977, by the board in executive session. By letter of November 23, 1977, plaintiff was advised that the application for correction of his records was denied. The board decision stated, in part:

DISCUSSION: From a review of the applicant's entire OER file it does appear that the OER in question i. e., for the period from 17 November 1967 to 20 February 1968 may have been the determining factor for his non-selection to the grades of Major-RA and LTC-AUS.

The board memorandum concluded with the remark that "the OER reflects a valid appraisal of the applicant's manner of performance during the period."

Plaintiff also filed, on February 7, 1974, an appeal under the provisions of AR 623-105 seeking to void the low OER. The Infantry Branch of the Army did not support the appeal. A special review board in the...