Norman v. United States

• Decision Date: 15 March 1968
• Docket Number: 321-62,No. 295-62,336-62,351-64 and 313-64.,256-64,295-62
• Parties: Roscoe L. NORMAN v. The UNITED STATES. John E. CROWLEY v. The UNITED STATES. Sherwood E. BUCKLAND v. The UNITED STATES. Maurice J. FITZGERALD v. The UNITED STATES. Loren E. BUCKEY v. The UNITED STATES. John B. MARTIN v. The UNITED STATES.
• Court: U.S. Claims Court

392 F.2d 255 (1968)

Roscoe L. NORMAN v. The UNITED STATES.

John E. CROWLEY v. The UNITED STATES.

Sherwood E. BUCKLAND v. The UNITED STATES.

Maurice J. FITZGERALD v. The UNITED STATES.

Loren E. BUCKEY v. The UNITED STATES.

John B. MARTIN v. The UNITED STATES.

Nos. 295-62, 321-62, 336-62, 256-64, 351-64 and 313-64.

United States Court of Claims.

March 15, 1968.

Richard L. Merrick, Joliet, Ill., attorney of record, for plaintiffs Roscoe L. Norman, John E. Crowley, Sherwood E. Buckland, Maurice J. Fitzgerald and Loren E. Buckey.

Clifford A. Dougherty, Arlington, Va., attorney of record, for plaintiff John B. Martin.

Charles M. Munnecke, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, SKELTON and NICHOLS, Judges.

OPINION

DURFEE, Judge.

Each of the plaintiffs herein seeks to recover the difference between the active duty pay he would have received as an officer in the Air Force if he had not been retired early under the provisions of the so-called White Charger Act and the retired pay he has received since the date of his retirement under that Act. We conclude that none of the plaintiffs is entitled to recover.

The "White Charger Act"¹ derived its name from an observation that this legislation went through Congress "like a White Charger." The Act permitted early mandatory retirement of not to exceed 20 percent of officers in the military service in the grade of permanent colonel and an unlimited number of permanent colonels with 20 years or more of service who had been considered for promotion twice, but not recommended.

The Act took initial form in Senate Bill S. 1795 which was the outgrowth of proposed legislation submitted by the Secretary of Defense who explained its purpose to the Congress on April 20, 1959:

The purpose of the proposed legislation is to enable the Armed Forces to meet more effectively the objective of a Regular officer corps of the highest quality in all ranks by (1) more closely relating the retention of officers after 20 years of service who are serving in the permanent grades of lieutenant colonel and colonel, commander and captain to the requirements of the services, including the degree of contribution or productivity of the officer and the needs of the services rather than solely to a "guaranteed" number of years of service; (2) according increased recognition and incentive for outstanding ability and competence; * * * and (4) expediting the separation from the service of officers who have been twice deferred from permanent promotion. Emphasis supplied

* * * * * *

It is emphasized that the present legislation is not intended to cause, and will not be used for, the involuntary removal of Regular officers from the active list solely because of a reduction in the actual or authorized personnel strength of the service concerned. Rather it is intended that the removal of Regular officers from the active list will continue to be authorized only for the reasons and under the procedures and limitations now provided by law for such removal and as further provided by the proposed legislation. Emphasis supplied

The need "to meet more effectively the objective of a Regular officer corps of the highest quality in all ranks" arose from the sudden expansion of the Regular officer corps in World War II, and again during the Korean War. The law as finally enacted was limited to the Army and the Air Force, but the principal problem of quality of service by senior officers resulted mainly from the rapid expansion in the number of Air Force officers during wartime. For example, the Regular Air Force officer corps was increased from 1,400 at the time of our entry into World War II to 23,000 after World War II and to 69,000 in 1956 after the hostilities in Korea.

As a result of this expansion, many officers were promoted rapidly for the purpose of staffing the increased number of higher grade positions. Some officers were promoted to the grade of colonel in the Air Force with 12 or 13 years of service, 10 years before they would have reached that grade in the Army or Navy. As a consequence of this rapid promotion, however, these Air Force senior officers faced many years of service in their attained rank with severely limited prospects of further promotion.

Under the Officer Personnel Act of 1947² lieutenant colonels could expect to continue in active service until they had completed 28 years of service (61 Stat. 905); this same expectation of continued service for colonels was until completion of 30 years of service (61 Stat. 904). During the middle of the 1950's responsible officials of the Air Force became concerned as to the quality of service of some of these senior officers in view of new and increasing requirements, and the fact that the existing law provided a sanctuary in long continued active service in grade for them.

Mandatory elimination by separation or retirement of deferred officers of the Army in junior grades who failed of selection for promotion, was provided by this Act of 1947. However, the only method for the elimination of officers of the grade of lieutenant colonel and colonel was for demonstrated deficiency in performance of such degree as to warrant elimination through show cause procedures, which had been largely ineffective. When used, this method had the colorable effect of stigmatizing subject officers. In April, 1956, the Deputy Chief of Personnel of the Air Force, in reviewing this problem, stated:

The 1946 and 1947 integration program increased the Regular Officer corps to 17,500. * * *

As a result, the age and experience of 12,000 of our Regular officers is concentrated in the five year bracket of officers commissioned from 1941 through 1945.

* * * * * *

With as many of our regular officers concentrated in this five year group, and with only a limited number of spaces available for promotion to permanent colonel, junior officers of this group would be mandatorily retired as lieutenant colonel without ever competing for promotion to permanent colonel.

In light of this, a plan was developed in 1953 and has been in use since 1955 which will assure every Regular Air Force Officer at least two opportunities for permanent promotion to colonel before he is mandatorily retired.

* * * * * *

Since the great majority of the eligible officers are all well qualified for promotion, the board soon realizes that in reality, they are selecting the best of the best qualified.

* * * * * *

In this situation non-selection reflects in no way upon the individual qualifications of the officers concerned or the Air Force\'s continued reliance on and the need for their services. Emphasis supplied

All of the foregoing considerations were included in the Report to the Secretary of Defense by an advisory group known as the Cordiner Committee on Professional and Technical Compensation in 1957. This Committee noted "the Military Manpower Problem" as follows:

The modern military manpower problem, reduced to its simplest terms is one of quality rather than quantity. It is not merely a matter of the total number of people on hand, but is much more a matter of the level of competence, skill and experience of those people.

* * * * * *

(8) As retention of quality military personnel improves, revitalize existing personnel controls and institute new controls to accomplish the following:

* * * * * *

A stiffening of the criteria of selection for promotion and retention to insure the retention and advancement in all grades of only the highly qualified.

* * * * * *

As an example of the type of problem facing the Services in this area, there exists within each of the Services a small group of officers in grades 0-5 and 0-6 for whom this safeguard has served a purpose for which it was not intended. Having failed of selection for promotion and being in the sanctuary of this provision, these officers have not continued to produce with customary effectiveness. * *

The Committee, however, is convinced that "quality attracts quality." Therefore, a positive requirement exists for each Service to employ all administrative and legislative measures now available to them to separate from active duty the less productive officers within its officer corps. The Committee recommends that additional remedial Service legislation should be sought if found necessary in the establishment of effective personnel quality controls.

As a result of careful and thorough consideration of these considerations by Congress, Public Law 86-616, 74 Stat. 386, was enacted, and approved on July 12, 1960. In relevant part, it provided Id. at 395:

(a) Not more than once in each fiscal year, the Secretary of the Army and the Secretary of the Air Force may convene one or more boards, each consisting of at least five officers * * * in a grade above colonel, to review the records of, and recommend for continuation on the active list, officers * * * in the regular grade of colonel or lieutenant colonel who have at least 20 years of service * * * and who have been considered more than twice but not recommended for promotion to the next higher regular grade.

(b) A board convened under this section shall recommend officers for continuation on the active list in the number specified by the Secretary. The Secretary may specify separate numbers for particular categories of officers. However, except with respect to the first board * * *, the number specified by him for officers in any category must be at least 80 percent of the officers in that category being considered. An officer may be considered for continuation on the active list * * * only once while serving in the regular grade of colonel and only once while serving in the regular grade of lieutenant colonel.

(c) * * * If the Secretary approves the report of a board, he shall, not later than the first day of the seventh * * * month * * * retire each officer who is considered but not recommended

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