Yee v. United States

• Citation: 512 F.2d 1383
• Decision Date: 30 May 1975
• Docket Number: No. 449-73.,449-73.
• Parties: John H. YEE v. The UNITED STATES.
• Court: Court of Federal Claims

512 F.2d 1383

John H. YEE v. The UNITED STATES.

No. 449-73.

United States Court of Claims.

March 19, 1975.

As Amended on Denial of Rehearing May 30, 1975.

Rehearing Denied May 30, 1975.

Norman Lew, San Francisco, Cal., atty. of record, Paul S. Fong, San Francisco, Cal., of counsel, for plaintiff.

Kenneth J. Ingram, Dept. of Justice, Wash., D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.

Before DAVIS, KASHIWA and KUNZIG, Judges.

Rehearing En Banc Denied May 30, 1975.

KUNZIG, Judge.

The primary question before us in this military pay case is whether the failure of the Air Force Board for the Correction of Military Records (AFBCMR) to remove promotion pass overs from plaintiff's record was arbitrary and capricious.¹ A secondary question concerns the Air Force Accounting and Finance Center and whether it improperly offset civilian earnings in computing plaintiff's back pay and allowances after his erroneous discharge in 1965.

As to the primary issue, we hold the action of the AFBCMR to have been arbitrary and capricious. Secondly, we hold the Air Force Accounting and Finance Center to have been correct in offsetting civilian earnings from plaintiff's award of back pay.

Facts

Plaintiff enlisted in the Air Force on October 9, 1954, and was appointed a Second Lieutenant on April 20, 1960. On April 20, 1964, plaintiff's automobile was involved in a head-on collision in which he suffered physical injury. Due to this injury, he was discharged from the Air Force on March 31, 1965 with severance pay in the grade of Captain.² Plaintiff appealed his discharge to the AFBCMR which initially denied his appeal, but subsequently recommended that he be reinstated to active duty. On July 6, 1970, over 5 years after his discharge, the Assistant Secretary of the Air Force held plaintiff's discharge constituted an injustice, directed that his records be corrected in accordance with the AFBCMR recommendation, and ordered plaintiff's reinstatement to the grade of Captain with appropriate back pay and allowances.

Prior to plaintiff's reinstatement, the Assistant Secretary of Defense directed the Assistant Secretaries of the military departments³ to require deduction of interim civilian earnings from amounts found due members or former members of the uniformed services by reason of the correction of their military records.⁴ Thus, when the Air Force Accounting and Finance Center computed the amount due plaintiff on September 2, 1970, plaintiff's civilian earnings of $26,336.67 were offset from the $44,262.55 he would have received had he not been erroneously and unjustly discharged. Plaintiff did receive a net of $17,925.88.

On December 7, 1970, just four months after his reinstatement, plaintiff was considered by a Selection Board for promotion to the grade of Major, but was not selected. At that time, there was only one Officer Effectiveness Report (OER) concerning plaintiff's performance at the grade of Captain in his selection folder, and no adequate explanation of the 1965-1970 gap in his career. Fearful that his pass over would prevent him from being promoted in the future, plaintiff again appealed for relief to the AFBCMR. Again the AFBCMR found in plaintiff's favor. In voiding the December 7 pass over, the AFBCMR stated:

There can be no argument with the selection board's decision that Captain Yee's record, as reflected in his selection folder, did not merit his selection under the best qualified method of selection. Nevertheless, we concur with him that his consideration was unjust because of the long period (more than 5 years) in which, through no fault of his, he received no OERs. Accordingly, we recommend that his record be corrected to show that he was not considered for promotion in FY 1971 December 7, 1970. quoting the advisory opinion of the Officer Promotion Branch, USAFMPC, dated 28 July 1971

On August 23, 1971, the Assistant Secretary of the Air Force issued a directive to remove the pass over from plaintiff's file. The pass over was thus voided, but without an adequate explanation of the 5-year gap in plaintiff's selection folder, even though the AFBCMR knew his name would again be placed before a Selection Board in November, 1971.

Plaintiff subsequently was evaluated by the Selection Board on November 8, 1971. This Selection Board had access to only three OERs on plaintiff relating to his performance in the grade of Captain. (August 1, 1970 until October 8, 1971). In each of these OERs, plaintiff received an overall rating of "Exceptionally Fine." Again plaintiff was not selected for promotion; and again, on June 12, 1972, plaintiff appealed to the AFBCMR. On August 21, 1972, plaintiff once more was considered by a Selection Board for promotion to the grade of Major; but once again, he was passed over. On May 7, 1973, plaintiff amended his June 12, 1972 appeal to the AFBCMR to include this new pass over.

Having now been officially passed over twice by Selection Boards, plaintiff was required by law to be honorably discharged as an officer from the Air Force.⁵ This discharge occurred on April 30, 1973. Plaintiff then immediately enlisted in the Regular Air Force on May 1, 1973 in the grade of Sergeant, in which position he still serves.

Plaintiff's appeal for relief to the AFBCMR asserted in essence that he was not afforded a complete remedy in 1971 when his December 7, 1970 pass over was voided. He maintained that this lack of remedial action directly contributed to his subsequent pass overs in 1971 and 1972 and consequent discharge on April 30, 1973. On August 10, 1973, three months after plaintiff had been discharged as an officer and after a formal hearing had been conducted, the AFBCMR recommended that plaintiff's application for relief be denied. In reaching its conclusion, the AFBCMR found the failure of the Selection Boards to be adequately briefed or advised of the reasons for the voiding of plaintiff's December 7, 1970 pass over irrelevant. In addition, the AFBCMR gave little consideration to the gap in OERs in plaintiff's selection folder for the period 1965-1970.

More importantly, it is difficult to find in the opinion of the AFBCMR how much weight, if indeed any weight, was placed on the fact virtually all plaintiff's military problems stemmed from an original injustice committed by the Air Force itself.

Rather, the AFBCMR found that plaintiff's record of performance "speaks for itself" and does not "place him in a category that one would describe as quote `selective material' unquote." On August 21, 1973, the Assistant Secretary of the Air Force adopted this recommendation and directed that plaintiff's application for relief be denied.

On November 20, 1973, plaintiff, claiming jurisdiction under 28 U.S.C. § 1491, brought suit in this court to recover and receive (1) back pay and allowances and other relief for his allegedly improper discharge in 1973 and (2) $26,336.67 for the alleged wrongful offset from his back pay and allowances award in 1970. For the reasons stated below, we hold for plaintiff on the discharge issue (while denying his request for promotion), and for defendant with regard to the offset of civilian pay.⁶

I. The 1973 Discharge Issue

Plaintiff argues that the action of the AFBCMR in denying his request for relief was arbitrary and capricious. He therefore seeks back pay and allowances equal to the grade of Major or, in the alternative, the grade of Captain from the date of his allegedly invalid discharge. As collateral relief, he also seeks reinstatement as a commissioned officer with correction of his military records to reflect the same.

Although this is a close case, on the facts presented in these cross-motions for summary judgment we agree that the AFBCMR's denial was arbitrary and capricious. By defendant's own admissions, plaintiff had been, on two separate occasions, the victim of injustices caused by the Air Force: first, when plaintiff was erroneously discharged in 1965; and second, when plaintiff's name was put before a Selection Board a mere four months after returning to active duty. What is not admitted, but is clear from the record, is that plaintiff continued to suffer from these two injustices because inadequate corrective action was taken to prevent recurring problems arising from the original error of the Air Force.

The primary factor which persuades us in plaintiff's favor is the failure of the Air Force at any time completely to correct the injustice caused by plaintiff's illegal discharge in 1965. The Air Force failed either to place an adequate explanation in plaintiff's record of the 5-year gap in OERs (which was admittedly caused by Air Force error) or to withhold plaintiff's name from submission to Selection Boards until sufficient time had elapsed for plaintiff to accumulate OERs. This failure prolonged the effect of the injustice until it ultimately led to plaintiff's 1973 discharge.

In essence, plaintiff's problems, since his 1970 reinstatement, stem mainly from his erroneous discharge in 1965. The AFBCMR, itself, when granting plaintiff's request in 1971 to void his December 7, 1970 pass over, envisioned the need for one or both of the above corrective measures when it stated, "plaintiff's consideration for promotion was unjust because of the long period (more than 5 years) in which, through no fault of his, he received no OERs."

We believe it would have been virtually impossible for any Selection Board to give proper consideration to plaintiff unless it had access to an adequate explanation of the 5-year gap caused by the Air Force or, in the alternative, sufficient time had elapsed for OERs to accumulate on which it could have made an informed judgment. Yet the AFBCMR, while recognizing the overall problem, merely voided plaintiff's December 7, 1970 pass over. The failure of the AFBCMR to take either additional step rendered its decision only a partial correction. And in this case, a partial correction...