Gruendyke v. United States, 514-78.

• Decision Date: 14 January 1981
• Docket Number: No. 514-78.,514-78.
• Citation: 639 F.2d 745
• Parties: Richard L. GRUENDYKE v. The UNITED STATES.
• Court: U.S. Claims Court

639 F.2d 745

Richard L. GRUENDYKE v. The UNITED STATES.

No. 514-78.

United States Court of Claims.

January 14, 1981.

Paul A. Kiefer, Washington, D. C., attorney of record, for plaintiff.

Louis R. Davis, with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant.

Before COWEN, Senior Judge, KUNZIG and SMITH, Judges.

KUNZIG, Judge:

We are again confronted with a suit by a former military officer who, as a result of being passed over for promotion, allegedly on the basis of defective officer effectiveness reports (OERs), was released from active duty. The question presented in this case is whether the action of the Air Force Board for Correction of Military Records (Corrections Board) denying plaintiff's relief was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Plaintiff petitions this court for back pay, correction of his records, and reinstatement to active duty. We sustain the Corrections Board's action and deny plaintiff's request for relief.

In this military pay case, plaintiff, formerly an officer in the Regular United States Air Force, contests his removal from military duty. Plaintiff was serving in the temporary grade of major when he was involuntarily released from the service because he had twice been passed over for promotion to the permanent grade of major.¹ With approximately 15 years of service, plaintiff was honorably discharged on June 30, 1977.

Plaintiff was first passed over for promotion to the permanent grade of major by an August 18, 1975 selection board. Another board met on November 8, 1976, and he was again reconsidered but not selected. Plaintiff's records before both the 1975 and 1976 selection boards contained three OERs covering the periods (1) March 1, 1972-February 28, 1973; (2) March 1, 1973-February 8, 1974; and (3) February 9, 1974-February 8, 1975: all three carried an overall evaluation of 8-3 (outstanding officer — consider advancement ahead of contemporaries).²

On September 22, 1977, plaintiff moved to challenge these three OERs by filing an application with the Corrections Board requesting that the three OERs be voided because they were inaccurate and not truly representative of his military performance. In his application, plaintiff contended:

(1) The OER for period March 1, 1972 through February 28, 1973 was improperly downgraded from a 9-4 to an 8-3 as a result of improper influence on the rating official;

(2) The OER for the period March 1, 1973 through February 8, 1974 is non-objective in that it does not accurately reflect applicant's job performance and promotion potential; and

(3) The basis for writing the OER for the period February 9, 1974 through February 8, 1975 admittedly was taken from other OERs in violation of AFR 36-10, para. 10-5(c).

Plaintiff's application was denied without a hearing on June 30, 1978. This suit followed.

In this action, now before us on plaintiff's motion for summary judgment, plaintiff challenges the Corrections Board's decision on the grounds that its decision was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Plaintiff argues that his passovers by the 1975 and 1976 selection boards were unjust and, therefore, his removal predicated on these two passovers was illegal.

It is well established in military passover cases that a plaintiff requesting back pay due to a separation or relief from active duty must show both that (1) there was a material legal error or an injustice in the proceedings of the Corrections Board, or other entity within the military department, which led to the action against him, and (2) that there is an adequate nexus between the error or injustice and the adverse action (e. g., passover and nonselection for promotion). Hary v. United States, 223 Ct.Cl. 10, 618 F.2d 704 (1980); Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804 (1979). See also Yee v. United States, 206 Ct.Cl. 388, 512 F.2d 1383 (1975). In reviewing passover cases, we are mindful that there is a strong presumption of regularity attaching to the actions of public officers, including administrators of the military. Sanders v. United States, supra, 219 Ct.Cl. at ___, 594 F.2d at 813. Because we find that the Corrections Board's decision in failing to void the three contested OERs was not arbitrary, capricious, unsupported by substantial evidence, or contrary to law, it is not necessary for us to reach the nexus requirement.³

Plaintiff's initial allegation concerns the OER dated March 1, 1972 through February 28, 1973, which he contends was downgraded from a 9-4 to an 8-3 as the result of improper "command influence" on the rating officer. In a leading military passover case, Skinner v. United States, 219 Ct.Cl. 322, 594 F.2d 824 (1979), we stated that the purpose of officer evaluations would be substantially thwarted if improper "command influence" by superiors was allowed to bear on the rater's decision. The evidence must clearly demonstrate that the rater's prerogatives were violated by undue pressure or coercion. Plaintiff has failed to make such a demonstration.

This OER was prepared by Lieutenant Colonel Scheid and indorsed by Colonel Barrett. The principal evidence relied upon by plaintiff to show that the rating was not objective was (1) a statement made by Lieutenant Colonel Scheid to plaintiff that on the OER he submitted for this period, he rated plaintiff a 9-4, and that Colonel Barrett instructed him to modify the rating to an 8-3; (2) a letter written by plaintiff in which he confronted Colonel Barrett with Lieutenant Colonel Scheid's statement; and (3) a response to that letter in which Colonel Barrett acknowledged the truth of Lieutenant Colonel Scheid's statement. The evidence does not support plaintiff's contention that Colonel Barrett exerted improper "command influence" over Lieutenant Colonel Scheid's rating of plaintiff. Unlike in Skinner v. United States, supra, where the court relied upon evidence consisting of admissions by the rating and indorsing officials in the rating chain that plaintiff would have received a higher rating but for improper "command influence," in the instant matter, the record merely indicates that Colonel Barrett agreed with the description of the circumstances as provided by Lieutenant Colonel Scheid.

We concur with the Corrections Board that there are various circumstances in which Colonel Barrett's instructions to Lieutenant Colonel Scheid to change the OER to an 8-3 would have been considered acceptable.⁴ We find no improper "command influence" in the case at bar.

Plaintiff contests the second OER, covering the period March 1, 1973 through February 8, 1974, on the grounds that this OER was initially submitted as a 7-3 and subsequently upgraded to a 8-3. By improving the rating, plaintiff argues, he was precluded from taking the proper administrative steps to obtain a 9-4, the highest rating possible.⁵ We find this contention meritless.

First, there is no credible evidence supporting plaintiff's assertion...