Roth v. U.S.

• Decision Date: 11 August 2004
• Docket Number: No. 03-5116.,03-5116.
• Citation: 378 F.3d 1371
• Parties: David C. ROTH, Plaintiff-Appellee, v. UNITED STATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1371

378 F.3d 1371

David C. ROTH, Plaintiff-Appellee, v. UNITED STATES, Defendant-Appellant.

No. 03-5116.

United States Court of Appeals, Federal Circuit.

August 11, 2004.

Appeal from the Court of Federal Claims, Reginald W. Gibson, Senior Judge.

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Guy J. Ferrante, King & Everhard, P.C., of Springfield, VA, argued for plaintiff-appellee.

J. Reid Prouty, Attorney, National Courts Section, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Bryant G. Snee, Assistant Director.

Before MICHEL, CLEVENGER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

David C. Roth was given mandatory retirement from the United States Air Force at the rank of major, effective July 1, 1995, after twice having been nonselected for promotion to the rank of lieutenant colonel. This followed a mandatory discharge in 1989 for failure to be promoted to major and subsequent reinstatement and promotion to that rank after corrective action by the Air Force Board for Correction of Military Records ("Board"). Following an unsuccessful application to the Board after his second separation, Mr. Roth filed suit in the United States Court of Federal Claims on October 27, 2000. In his suit, he sought reinstatement to the rank of major as of July 1, 1995, back pay, benefits, and the correction of his military record.

On April 15, 2003, the Court of Federal Claims granted judgment in Mr. Roth's favor based on the administrative record. The court first ruled that Mr. Roth was entitled, through Board action, to various corrections of his military record. The corrections were (i) upgrading the indorsement levels on three of his officer effectiveness reports ("OERs"); (ii) removal of the notation "Corrected Copy" from his OER for the period ending March 27, 1984 ("March 1984 OER"); (iii) forwarding recommendations for approval of an end-of-tour decoration for his service at Shaw Air Force Base ("AFB"); (iv) awarding an end-of-tour decoration for his service at Ramstein AFB; (v) insertion of an Air Force ("AF") Form 77 in his record explaining the lack of an OER for the eleven months prior to his involuntary separation from the Air Force in January of 1989; and (vi) insertion of an AF Form 475, Training Report, to reflect Air Force Institute of Technology ("AFIT") sponsorship of his attendance at a graduate school program during the twenty-nine month period that began in February of 1989 during which he was involuntarily separated from the Air Force. After correcting Mr. Roth's record, the Court of Federal Claims voided his calendar year 1993 and 1994 nonselections for promotion to lieutenant colonel and directed the Board to reinstate him to active duty at the rank of major retroactive to July 1, 1995, with back pay and benefits. Finally, the court ordered the Board to send Mr. Roth's corrected record to Special Selection Boards ("SSBs") to determine whether, if Mr. Roth had gone before the 1993 and 1994 selection boards with his record as corrected, he would have been promoted to lieutenant colonel. Roth v. United States, 56 Fed. Cl. 239 (2003).

The government now appeals the decision of the Court of Federal Claims. It argues that the court exceeded its authority when it directed the Board to correct Mr. Roth's record. In the alternative, it urges, assuming record corrections were in order, the court erred in the further relief it granted. According to the government, the court simply should have directed that Mr. Roth's corrected record be referred to SSBs for a determination as to whether, if Mr. Roth had gone before the 1993 and 1994 lieutenant colonel selection boards with his record as corrected, he would have been promoted. The government contends that the court should not have voided Mr. Roth's two nonselections for promotion and ordered him retroactively reinstated to active duty.

For the reasons set forth below, we see no error in the decision of the Court of Federal Claims insofar as it (i) directed the upgrading of the indorsement levels on three of Mr. Roth's OERs; (ii) ordered the forwarding of recommendations for approval of an end-of-tour decoration for Mr. Roth's service at Shaw AFB; (iii) ordered that an end-of-tour decoration be awarded for Mr. Roth's service at Ramstein AFB; and (iv) ordered the insertion of an AF Form 77 explaining the lack of an OER for the eleven months prior to Mr. Roth's initial separation. We also see no error in the court's decision insofar as it ordered that SSBs be convened for the 1993 and 1994 lieutenant colonel selection boards. We agree with the government, however, that the Court of Federal Claims exceeded its authority in ordering the removal of the "Corrected Copy" notation on the March 1984 OER and in ordering that a Training Report be added to Mr. Roth's record reflecting AFIT sponsorship of a graduate course during his previous involuntary separation. Nevertheless, on the latter point, we do think that Mr. Roth is entitled to a nonprejudicial correction of his record to cover the gap in his service record from January 31, 1989, to June 27, 1991. We also agree with the government that the Court of Federal Claims erred in voiding Mr. Roth's 1993 and 1994 nonselections for promotion to lieutenant colonel and in reinstating him to active duty at the rank of major with back pay and benefits, retroactive to July 1, 1995.

Thus, we affirm the decision of the Court of Federal Claims insofar as it directed record corrections (i)-(iv) above in the preceding paragraph. However, we modify the court's decision insofar as it ordered that a Training Report be added to Mr. Roth's record reflecting AFIT sponsorship during his involuntary separation. Finally, we reverse the court's decision insofar as it ordered the removal of the "Corrected Copy" notation on the March 1984 OER, voided Mr. Roth's 1993 and 1994 nonselections for promotion to lieutenant colonel, and ordered him retroactively reinstated to active duty at the rank of major with back pay and benefits. The case is remanded to the Court of Federal Claims with the instruction that the court, in turn, remand the case to the Board for further proceedings. In remanding the case to the Board, the court is to instruct the Board to make the four record corrections noted above and to correct Mr. Roth's record with respect to the gap in service between January 31, 1989, and June 27, 1991. The court also is to instruct the Board to convene SSBs for the 1993 and 1994 lieutenant colonel selection boards to consider Mr. Roth for promotion to lieutenant colonel in light of the corrections that will have been made in his record. In sum, we affirm-in-part, modify-in-part, reverse-in-part, and remand with instructions.

BACKGROUND

I.

Mr. Roth was commissioned a second lieutenant in the Air Force Reserve on June 10, 1977. By December 31, 1977, he had attained extended active duty status. Soon thereafter, he became Regular Air Force and was promoted to the rank of captain. In June 1982, he assumed duties at Shaw AFB, South Carolina, as Intermediate Command (Ninth Air Force) Inspector General Air Intelligence Inspector. On each of his OERs, including the one ending June 20, 1983 ("June 1983 OER"), he received impeccable performance ratings. In addition, each of his OERs was indorsed by a brigadier general.¹ Roth, 56 Fed. Cl. at 242.

Between June 1983 and March 1984, Mr. Roth was investigated by the Air Force Office of Special Investigations ("AFOSI") as a result of allegations of personal wrongdoing. Id. Based solely upon the fact of these allegations, Mr. Roth received an unfavorable mark on his March 1984 OER, covering the period June 21, 1983, to March 27, 1984. On Item 9 of the Professional Qualities category, which queried whether "[o]ff duty personal problems detracted from an otherwise excellent professional image," he received a "Meets Standard" rating. Id. In addition, the indorsement on his March 1984 OER was from the Ninth Air Force Inspector General (a colonel), rather than from the Ninth Air Force Vice Commander (a brigadier general), which had been the case previously.

The AFOSI investigation closed on July 6, 1984, after the issuance of the March 1984 OER, and Mr. Roth was ultimately absolved of all charges of wrongdoing. His two subsequent OERs, for the periods covering March 28, 1984, to January 28, 1985 ("January 1985 OER"), and January 29, 1985, to June 1, 1985 ("June 1985 OER"), nevertheless reflected the same lowered indorsement level of only colonels, one serving as Ninth Air Force Inspector General and the other as Ninth Air Force Deputy Chief of Staff for Intelligence. In the summer of 1985, Mr. Roth was given a permanent change of station to Homestead AFB, but he did not receive any decorations recognizing his three years of service at Shaw AFB. In July 1987, he was transferred to Ramstein AFB, Germany.

Mr. Roth was passed over for promotion to the rank of major on September 28, 1987, and again on June 6, 1988. As a result, he was involuntarily separated from the Air Force with an honorable discharge on January 31, 1989.² Roth, 56 Fed. Cl. at 242, 243 n. 2. Upon his separation, he received neither a decoration nor an OER for his eleven months of service at Ramstein AFB.

In March 1989, Mr. Roth applied to the Board for relief. In his application, he requested (i) that Item 9 on his March 1984 OER be upgraded to "Well Above Standard"; (ii) that he be reconsidered for promotion by an SSB; and (iii) that if selected by an SSB, he be reinstated to active duty. In the Matter of Roth, No. 89-01387, slip op. at 1 (A.F.B.C.M.R. Oct. 31, 1989). On October 31, 1989, the Board recommended upgrading Item 9 of the March 1984 OER to "Well Above Standard" and replacing the previous comments on his March 1984...