Horn v. Schlesinger, 74-1821

• Decision Date: 29 April 1975
• Docket Number: No. 74-1821,74-1821
• Citation: 514 F.2d 549
• Parties: Jesse L. HORN, Appellant, v. Honorable James R. SCHLESINGER, Secretary of Defense, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 549

514 F.2d 549

Jesse L. HORN, Appellant, v. Honorable James R. SCHLESINGER, Secretary of Defense, et al., Appellees.

No. 74-1821.

United States Court of Appeals Eighth Circuit.

Submitted March 13, 1975.

Decided April 29, 1975.

Francis L. Ruppert, Clayton, Mo., for appellant.

Captain Alvin Thomas, JAGC, Dept. of the Army, Washington, D. C., for appellees.

Before VAN OOSTERHOUT, Senior Circuit Judge, ROSS, Circuit Judge, and TALBOT SMITH, ^* Senior District Judge.

TALBOT SMITH, Senior District Judge.

The appellant before us (hereinafter plaintiff), a former United States Army Major, was discharged from the service for his alleged failure to meet the standards required for promotion in rank. ¹ His bill of complaint ² sought review of this discharge and reinstatement to active status in the United States Army. The District Court granted defendants' motion for summary judgment on the ground that plaintiff had failed to exhaust his administrative remedies. We agree and affirm.

The issues presented revolve around two Officer Efficiency Reports (OERs) and the processing thereof. These periodic reports constitute an appraisal of the officer's performance of duty; "(a)n individual's failure to receive OERs competitive with other officers similarly situated can, especially with today's contracting military manpower, result in passovers (promotion non-selection) and involuntary separation from active duty." ³ The reports in controversy here cover the periods from 26 May through 4 October 1970 (OER 1) and from 5 October 1970 through 31 August 1971 (OER 2). They are considered by plaintiff to have caused or contributed to his failure of promotion.

In May, 1973 plaintiff appealed OER 1, alleging that "the rating officer who made the disputed OER was contrary to" an Army regulation ⁴ requiring that "Reports are (to be) completed at the lowest level possible in order to obtain two accurate and considered opinions based on the closest possible knowledge and observation of the officer." Plaintiff asserted in his appeal that "Colonel Pruett was the officer who should have performed the function of rating officer" and not Colonel Bonifas.

The Army Special Review Board, which heard the appeal, held that the evidence presented did not warrant remedial action thereon. Plaintiff then appealed to the Army Board for the Correction of Military Records (ABCMR) ⁵ which denied the application on January 16, 1974 "on the basis that insufficient relevant evidence had been presented to demonstrate the existence of probable material error or injustice." This was held to be "without prejudice to further consideration in the event new relevant evidence is submitted (paragraph 10b, Army Regulation 15-185)."

Meanwhile, on July 11, 1974, plaintiff had appealed OER 2 to the Special Review Board. His complaints respecting OER 2 were similar to those asserted concerning OER 1. It was alleged that Colonel Pruett rather than Lieutenant Colonel Hallinan should have performed the function of rating officer. The appeal of OER 2 was denied by the Special Review Board on grounds similar to those stated with respect to OER 1. New and additional evidence concerning both OER 1 and OER 2 was then submitted, on September 20, 1973, to the Special Review Board, and it again denied relief. OER 2 was not submitted to the ABCMR.

Thus with respect to the two OERs complained of, a part only (absent the new and additional evidence submitted on September 20, 1973) of one claim, OER 1, was ruled upon by the ABCMR. OER 2 was not submitted to such Board and hence, of course, not ruled upon.

The defendants urge to us that plaintiff has not exhausted his administrative remedies. We share, with other courts that have addressed the point, the traditional judicial reluctance to interfere with the military establishment. This is not to say that it will never be done when grave constitutional rights seem imperiled, as the court-martial ⁶ and selective service ⁷ cases well attest. But in judgments requiring military expertise and involving military discretion within unique professional fields this long-established view found apt expression in Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953) where the Supreme Court, after noting that "judges are not given the task of running the Army," stated that "(t)he responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates." And, further,

The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to interfere in judicial matters.

It is at this point legitimate Army matters that our duty in the premises becomes clear. What we have here are allegedly erroneous and adverse OERs which have resulted in plaintiff's separation from active duty. As to OER 1, as we have noted, it is alleged that Colonel Pruett should have been the rating officer and not Colonel Bonifas, whereas for OER 2 Colonel Pruett again should have been the rating officer and not Lieutenant Colonel Hallinan. The degree of involvement with internal Army organization and procedures that this question presents may be gleaned from plaintiff's arguments on this point in his appeal to the Army Special Review Board, a portion of which (respecting OER 1, though OER 2 is similar) appears in the margin. ⁸

The issue presented lies squarely within the competence and statutory authority of the Army Board for Correction of Military Records (ABCMR). This Board, established pursuant to 10 U.S.C. § 1552 and 32 C.F.R. § 581.3 (1974) ⁹ is to consider all applications properly before it for the purpose of determining the existence of an error or an injustice," 32 C.F.R. § 581.3(b) (2) (1974), and may "correct any military record" when necessary to "correct an error or remove an injustice," 10 U.S.C. § 1552(a). ¹⁰ Its powers include the review and correction of passover discharges which have resulted from erroneous adverse OERs. ¹¹

Plaintiff characterizes an appeal to the ABCMR as futile, charging that the improbability of reversal by that body excuses application to it, since appeal would involve resort to "a non-existence (sic) remedy." We do not share the plaintiff's pessimism. We will indulge, until otherwise convinced, ¹² in the presumption that the military will be astute to afford to the plaintiff all of the rights and the protections afforded him by the Constitution, the statutes, and its own regulations. ¹³ It will not be forgotten, of course, that the Board's action is subject to judicial reversal if it is arbitrary, capricious, unsupported by substantial evidence or erroneous in law. ¹⁴ And, although the Secretary is authorized, in a proper case, to overrule the Board's recommendations, ¹⁵ he cannot do so arbitrarily, but must act on either explicitly stated policy reasons, or upon evidence presented in the record made to the Board. ¹⁶

It is in situations of this type, involving challenge to the retention and promotion of personnel, that the exhaustion requirement finds peculiar applicability. A failure to exhaust the remedies available within the service itself will inevitably upset the balance, carefully struck, between military authority and the power of the federal courts. In the case before us we are in an area involving judgments as to military character, a field foreign to our normal competence. The application of the exhaustion doctrine ¹⁷ upon these facts allows the military an opportunity to exercise its own expertise, and to correct its own errors, all without subjecting the courts to inefficient employment of judicial resources through rulings upon matters yet interlocutory within the military system. ¹⁸

Finally, plaintiff alleges a series of constitutional defects. ¹⁹ It is argued that there are no procedures for discovery before the Board, that there are no provisions for the compulsory attendance of witnesses, and that all members of the Board are appointed by the Secretary, it thus being, according to plaintiff, "absolutely inconceivable that (the Board) would declare one of his regulations unconstitutional." These flaws plaintiff asserts, deprive him of due process. Such matters, however, whether or not fatal within context, as to which we express no opinion, will never be reached should the plaintiff prevail before the Board. ²⁰ We advert to the fundamental doctrine that the Court should avoid passing on unnecessary constitutional questions, ²¹ a doctrine peculiarly applicable here in view of our traditional reluctance to interfere with the military establishment.

Upon a careful review of the entire record we find no procedural or other error in the case and, in the light of the foregoing, we affirm for failure to exhaust administrative remedies.

* Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

1 10 U.S.C. § 3303 requires the discharge or forced retirement of certain officers who have been considered twice but not selected for promotion.

2 Counts I and II pertained to plaintiff's efficiency reports, charging failures to properly prepare, evaluate and process. Count III alleged that the appeal procedures therefor were vague and arbitrary, depriving plaintiff of due process. Count IV charged that defendants' evaluation procedures employed vague and unreasonable standards, and that plaintiff's discharge based thereon was violative of due process.

3 Glosser & Rosenberg, Military Correction Boards: Administrative Process and Review by the United States Court of Claims, 23 Am.U.L.Rev. 391, 403 (1973) (hereinafter cited as Glosser).

4 AR 623-105 P 1-3b (March 6, 1970), as amended, AR 623-105 P 1-4b (May 15, 1974).

5 See notes 9-11, infra, and...