Pardo v. United States

• Decision Date: 06 May 1981
• Docket Number: No. 259-79C.,259-79C.
• Citation: 648 F.2d 1330
• Parties: Lt. Col. Jorge M. PARDO v. The UNITED STATES.
• Court: U.S. Claims Court

648 F.2d 1330

Lt. Col. Jorge M. PARDO v. The UNITED STATES.

No. 259-79C.

United States Court of Claims.

May 6, 1981.

Michael J. Gaffney, Washington, D. C., atty. of record, for plaintiff. Gaffney, Anspach, Schember, Klimasti & Marks, P. C., Washington, D. C., of counsel.

Virginia I. Bradley, Washington, D. C., with whom was Asst. Atty. Gen. Thomas S. Martin, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, and NICHOLS and KUNZIG, Judges.

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

KUNZIG, Judge.

This military pay case comes before the court on the parties' cross-motions for summary judgment. By this action, plaintiff seeks an award of Variable Incentive Pay (VIP) for the period September 12, 1974 to June 30, 1975. Plaintiff contends that he was improperly denied VIP upon the basis of an allegedly defective Officer Efficiency Report (OER) covering his service from June 11, 1973 to April 9, 1974. The Government responds that we lack jurisdiction herein because plaintiff cannot establish a clear-cut monetary entitlement. We agree with the Government's view.

Plaintiff entered active duty as a Major in the Army Medical Corps on January 6, 1969. Following brief initial training, he served one year in Korea as a general surgeon. He was then transferred to Fort Eustis, Virginia, where he worked as a general surgeon and, later, Chief of General Surgical Services. He remained at Fort Eustis until August 1972, when he reported to the 56th General Hospital in Germany to assume the duties of Chief of Professional Services and Chief of Surgery.

Pardo's OER's for his service in Korea and Virginia were generally favorable. Pardo's rating and indorsing officers consistently placed him among the top 10-20 percent in comparison to his peers and his skills as a surgeon received a number of flattering comments. The only blemish was some negative comment directed at Pardo's apparent shortcomings in getting along with others and handling administrative responsibilities.¹ This factor would soon grow markedly in importance, as will be seen.

LTC Pardo's subsequent job performance during his first year in Germany was only mediocre. For the period August 1, 1972 to June 10, 1973, he was given an OER containing a numerical rating of 145/200, just slightly above average. The written comments were distinctly critical. The rating officer, COL. James B. Lindahl, stated: "Pardo's abrupt manner and reluctance to give and take in dealing with subordinate members of the professional staff caused occasional misunderstanding and resentment." The indorsing officer, COL. John H. Sharp, concurred, as follows: "A reportedly exceptionally skillful surgical technician who has consistently achieved good results in a limited scope of general surgical practice. LTC Pardo's effectiveness as Chief, Professional Services, in achieving the cooperation and desired performance of the professional staff, has been patently limited by his difficulty in communication and apparently relatively aloof, distant relationship to the physician staff of his hospital." Among other things, Pardo had apparently been averse to paperwork during this period and had fallen into a situation where his commander, COL. Lindahl, assumed many of those tasks for him.

In June 1973, COL. L. V. D. Harris assumed command of the 56th General Hospital and became LTC Pardo's new rater for OER's. Differences shortly developed between the two officers. This led to a written request by Pardo, submitted to the Army on January 11, 1974, for release from the authority of COL. Harris and for a change of rater. Pardo made a number of allegations, but especially complained of being overworked² and of prejudice on the part of COL. Harris.³ The request, which cited no authority for the proposed action, was quickly turned down by a senior Army officer, with the suggestion that Pardo try to resolve the matter on a personal basis.

The differences between the two medical officers, however, were not resolved. Subsequently, on April 8, 1974, Pardo filed with Harris a formal complaint against the latter for redress of grievances under Article 138 of the Uniform Code of Military Justice.⁴ The complaint essentially restated the charges which Pardo had earlier made in his request for release from the authority of COL. Harris. Harris thereafter submitted the complaint to the proper deciding official, along with his own point-by-point rebuttal. On June 10, 1974, the complaint was rejected in toto.

On April 9, 1974 — one day after Pardo submitted his complaint — COL. Harris prepared an extremely critical OER for Pardo's service during the period June 11, 1973 — April 9, 1974. The overall numerical rating, resulting from Harris' evaluation together with that of the indorsing officer, GEN. Philip A. Deffer, was 15/200 — marginal. The written comments of both officers were severe, dwelling on Pardo's administrative failings, emotionalism, and self-centered behavior.⁵ The only saving grace was Deffer's remark that, "Pardo is a good general surgeon and should be assigned as such at the earliest possible time." For the balance of his military career, Pardo would be dogged by this inconsistency: good surgeon, poor administrator.

On May 6, 1974, Congress enacted the Variable Incentive Pay (VIP) statute, 37 U.S.C. § 313 (1976), to provide increased monetary incentives of up to $13,500 per year to enhance recruitment and retention of physicians into the Armed Forces. On July 8, 1974, an Army Selection Board appointed by the Surgeon General convened for the first time to consider Medical Corps officers who would be recommended for approval for VIP for the following year. Of the 490 officers considered, LTC Pardo was one of eight not selected.

Just before LTC Pardo transferred to a new hospital, COL. Harris signed another adverse OER for the period April 10, 1974 to July 10, 1974.

In November 1974, plaintiff initiated appeals of the two adverse OER's. In April 1975, he was advised that a Special Review Board had declined to remove the two OER's from his file. In September 1975, Pardo wrote the Secretary of Defense, but obtained no relief.

In April 1976, plaintiff appealed to the Army Board for Correction of Military Records (ABCMR). The second adverse OER for the period April 10, 1974 to July 10, 1974 was removed from plaintiff's file for the stated ground that the rater had had an insufficient period of observation to render a report. ABCMR, however, refused to void the first OER for the period June 11, 1973 — April 9, 1974, stating that there was insufficient evidence presented to warrant its removal. Pardo was notified of this decision on February 17, 1977. He filed in this court on June 15, 1979. Pardo retired from the military on July 27, 1979, shortly after having been convicted by a court-martial of the offense of failing to obey a lawful order.⁶

Plaintiff, pursuant to Rule 101(a) of the Rules of this court, now seeks a decision granting him summary judgment on the issue of liability with respect to (1) the decision of ABCMR not to remove from his records the OER for the period June 11, 1973 to April 9, 1974, and (2) the Army's decision denying him VIP in 1974-1975. Plaintiff alleges that the denial of VIP stemmed from the presence of the challenged OER in his file.

In its cross-motion, the Government invokes United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), in arguing that this court is without jurisdiction. The core of the argument is that the award of VIP falls within the discretion of the military. According to the Government, there is no legal guaranty or practical assurance that the Army Selection Board would have awarded LTC Pardo VIP for 1974-75 had the allegedly defective OER for the period June 11, 1973 to April 9, 1974 not been brought to its attention. Consequently, no monetary entitlement had been shown and we are without jurisdiction.

This line of reasoning has already received our approval in Adair v. United States, Ct.Cl., 648 F.2d 1318 (1981), another VIP case decided this date. Adair is controlling in this instance. The Government's motion is well-founded.

Accordingly, after consideration of the submissions of the parties, with oral argument of counsel, plaintiff's motion for summary judgment is denied. Defendant's motion for summary judgment is granted. Plaintiff's petition is dismissed.

FRIEDMAN, Chief Judge, concurring:

Although I agree with the result the majority reaches, I cannot agree that Adair is controlling. The question whether we have jurisdiction over this claim under United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), is a difficult one. Since I conclude that the plaintiff has not demonstrated that the Army Board for the Correction of Military Records acted arbitrarily or capriciously in refusing to remove the unfavorable OER from his file, I would pretermit the jurisdictional issue and hold for the defendant on the merits.

The determination whether a medical officer is entitled to VIP is a three-step process. 37 U.S.C. § 313 (1976); Department of Defense Directive 1340.11 (September 12, 1974).

The first step is to determine whether, by statute or regulation, a medical officer is barred from receiving VIP. Specifically, the medical officer must be (1) "below the pay grade of 0-7;" (2) "not serving an initial active duty obligation of four years or less or ... not serving the first four years of an initial active duty obligation of more than four years;" and (3) "not undergoing intern or initial residency training." 37 U.S.C. § 313(a)(1), (4), and (5). See also DOD Directive 1340.11.III.B and .C. It was at this step that the medical officers in Adair were...