Guy v. United States

• Decision Date: 17 October 1979
• Docket Number: No. 14-75.,14-75.
• Citation: 608 F.2d 867
• Parties: Ronald N. GUY v. The UNITED STATES.
• Court: U.S. Claims Court

608 F.2d 867

Ronald N. GUY v. The UNITED STATES.

No. 14-75.

United States Court of Claims.

October 17, 1979.

Neil B. Kabatchnick, Washington, D.C., attorney of record, for plaintiff. Richard L. Swick, Washington, D.C., of counsel.

Donnie Hoover, Washington, D.C., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D.C., for defendant.

Before NICHOLS, KUNZIG and BENNETT, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

BENNETT, Judge:

This military pay case comes before the court on the parties' motions for summary judgment. Plaintiff, Ronald N. Guy, was formerly a temporary major in the Regular United States Air Force when he was relieved of active duty as a result of having been twice passed over for promotion to the permanent rank of major. He resigned in lieu of discharge on April 29, 1973, for the purpose of enlisting in the Regular Air Force as a sergeant. Plaintiff alleges that his records before the two selection board were inaccurate and incomplete, and that this was legal error vitiating his two nonselections for promotion and his separation from active duty commissioned status. Plaintiff claims entitlement to back pay and allowances of a major, correction of his records, and reinstatement to the temporary rank of major or, in the alternative, promotion to the permanent rank of major. Though we do not accept all of plaintiff's allegations, we conclude that plaintiff is entitled to some relief.

Plaintiff served on active duty as a pilot from 1958 to 1973. He was promoted to the temporary grade of major on November 1, 1968. In May of 1969, he was transferred from a tour of duty in Southeast Asia to Griffiss Air Force Base, New York, where he was assigned to a flight testing division. While at Griffiss, plaintiff received several officer effectiveness reports (OERs), two of which are the source of controversy in this case.¹

Plaintiff claims that the OER covering the period August 14, 1968-May 15, 1969, which rated plaintiff at 8-3, was missing from his records when he was considered by the selection boards. Two following OERs (the May 16, 1970-October 15, 1970, OER in which the rater gave plaintiff a rating of 7-2 and which was concurred in by the indorser but was not concurred in by Col. R. C. Mathis, a superior in the chain of command who raised the rating to an 8-2, and the October 16, 1970-August 1, 1971, OER which bore the rating of 7-3) did not, plaintiff alleges, fairly represent his performance on account of the bias of the raters and indorsers and should have been voided.

Plaintiff was passed over for promotion to the permanent rank of major by the fiscal year 1972 selection board which was convened on August 16, 1971 1972 selection board. Plaintiff's record before that board contained the two contested OERs and allegedly did not contain the missing OER. On July 7, 1972, plaintiff applied to the Officer Personnel Records Review Board (OPRRB) of the Air Force Military Personnel Center to void the contested OERs. While his application was pending, plaintiff was passed over a second time for promotion to the permanent rank of major by the fiscal year 1973 selection board which was convened on August 7, 1972 1973 selection board. Similarly, this board had before it the two contested OERs but allegedly did not have before it the missing OER. On August 9, 1972, Air Force Systems Command recommended to the OPRRB that plaintiff's first contested OER be voided. On October 5, 1972, the OPRRB refused to void either OER.

On November 13, 1972, plaintiff filed an application with the Air Force Board for the Correction of Military Records (Correction Board) seeking the excision from his records of the two contested OERs and the two passovers resulting from the presence of these OERs and the absence of the missing OER. Under the direction of the Correction Board, the OPRRB reconsidered its decision as to the contested OERs, which decision was affirmed. By letter dated May 13, 1974, the Correction Board denied all relief on the basis that the evidence did not support a finding of probable error or injustice.

I

Plaintiff seeks an order from this court directing the Secretary of the Air Force to void the two OERs covering the periods of May 16, 1970-October 15, 1970, and October 16, 1970-August 1, 1971, on the grounds that the OERs were unfair, inaccurate, and the product of personal animosity. These OERs, plaintiff argues, should not have been in his records before the two selection boards, and, hence, their actions were unlawful and plaintiff has not been properly relieved of active duty status.

Plaintiff's allegations present a claim within the jurisdiction of this court. "Regulations prescribe that OERs are to be objective and prepared in a certain way." Sanders v. United States, 594 F.2d 804, 814, 219 Ct.Cl. ___, ___ (1979). See also Air Force Regulation (AFR) 36-10 (Sept. 15, 1974). If OERs are not prepared in the manner required by law, they are not properly included in an officer's records before selection boards. See Skinner v. United States, 594 F.2d 824, 219 Ct.Cl. ___ (1979). Where an officer's records before a selection board were prejudicially defective so that the officer was not considered for promotion in a fair and equitable manner and the error was not harmless, this court can and will grant relief. See, e. g., Sanders v. United States, supra; Skinner v. United States, supra.

In this case, however, plaintiff must first show that the Correction Board's, or the OPRRB's, decision in failing to void the two contested OERs was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. An officer's challenge to an OER based on the grounds that it was not objective and did not accurately portray his performance during the rating period "must overcome the strong, but rebuttable, presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith." Sanders v. United States, supra, 594 F.2d at 813, 219 Ct.Cl. at ___; Savio v. United States, 213 Ct.Cl. 737 (1977); Boyd v. United States, 207 Ct.Cl. 1 (1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976). This presumption, of course, includes those officers who are charged with rating the performance of other officers.

Further, though the general intent of AFR 36-10 is to ensure by every means possible that OERs be objective, perfect objectivity in the rating process cannot be expected or even hoped for. The process of evaluating officers by other officers is an inherently subjective process which neither the military boards nor this court will interfere with unless there is clear and convincting evidence of factors adversely affecting the ratings which had no business being in the rating process. Savio v. United States, supra; Tanaka v. United States, 538 F.2d 348, 210 Ct.Cl. 712 (1976), cert. denied, 430 U.S. 955, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977).

Though the bias and personal animosity of rating officers are such factors, plaintiff has not demonstrated that the Correction Board and the OPRRB's decision, which refused to void the OERs, was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. The first contested OER, covering the period May 16, 1970-October 15, 1970, was prepared by Maj. Kenneth H. High and indorsed by Maj. Richard K. Derridinger. The principal evidence relied on by plaintiff to show that the rating was not objective was (1) the fact that Col. Robert C. Mathis added an additional indorsement to the OER expressing his disagreement with part of the rating and raising it from a 7-2 to an 8-2, (2) an affidavit by Lt. Col. Gerald I. Reponen, Major High, Major Derridinger, and plaintiff's commanding officer, (3) a certificate of aircrew performance, and (4) the unaccepted recommendation by the Air Force Systems Command to void the OER.

The evidence does not demonstrate that the OER was clearly inaccurate or the product of personal animosity or bias. Col. R. C. Mathis did add his indorsement changing plaintiff's evaluation as to three categories of evaluation and the overall numerical evaluation from a 7-2 to an 8-2. Colonel Mathis did not mention as reasons for these changes any specific problem in the rater's or immediate indorser's judgment and it can only be presumed that the change was due to a judgment call. This disagreement was part of plaintiff's OER and, thus, part of his record before the selection boards.

Lieutenant Colonel Reponen did attest, on the basis of daily contact with both plaintiff and the rater and indorser, that not only had plaintiff's performance not digressed but had actually improved from the period of his immediately preceding OER which bore the rating of 8-3. Further, Lieutenant Colonel Reponen attested that Major Derridinger, the indorser, was biased against plaintiff. Lieutenant Colonel Reponen did not, however, impute bias to Major High, the rater, who, on the contrary, was in Lieutenant Colonel Reponen's judgment "an officer of high integrity and moral character." Lieutenant Colonel Reponen's explanation of the fact that Major High had submitted the OER was that he believed that a different OER had been substituted for the correct one. Little credence can be given to such unsupported conjecture.

During the period covered by the OER, plaintiff received a certificate of aircrew qualification dated September 29, 1970. Plaintiff received an evaluation of satisfactory, which is in no way inconsistent with his OER rating. Last, the Air Force Systems Command recommended to the OPRRB the voiding of this OER. Presumably, it had the same evidence as this court has before it. Without expressing any opinion as to the wisdom of the recommendation, on the facts that are here, we do not believe that it was arbitrary, capricious, unsupported by substantial evidence, or contrary to law for either the...