The opinion of the court was delivered by: WALSH
This matter came before the Court on October 14, 1964, for hearing on the motion of defendants to dismiss the complaint or in the alternative for summary judgment.
The material facts are not in issue, and can be stated as follows:
Plaintiff is a Lieutenant Commander in the United States Coast Guard, having been promoted to that rank in 1952. He was originally commissioned as an Ensign on June 9, 1943, and, as of June 8, 1964, had acquired twenty-one years of active service in the Coast Guard.
On March 10, 1959, and again on May 25, 1959, the plaintiff was notified that he had failed of promotion to the rank of Commander on the recommendation of two successive Selection Boards. On June 12, 1961, the plaintiff was notified that he had failed of promotion for the third time and that as a result thereof, in accordance with Article 5-A-3(g), Coast Guard Personnel Manual, he had been placed permanently out of line of promotion to the rank of Commander. The judgment of the three Selection Boards was predicated upon a review of more than twenty fitness reports of the plaintiff.
By letter dated December 26, 1963, the plaintiff was informed that, pursuant to the provisions of 14 U.S.C.A. § 285 (Supp.1964), he would be retired from the Coast Guard on June 30, 1964. The plaintiff was then ordered into retirement, effective June 30, 1964, by an order dated June 3, 1964. As a result of retirement, plaintiff will receive half pay.
The statute under which plaintiff's order of retirement was to be accomplished, 14 U.S.C.A. § 285 (Supp.1964), provides:
'* * *Each officer of the Regular Coast Guard serving in the grade of lieutenant commander or commander, who has failed of selection for promotion to the grade of commander or captain, respectively, for the second time shall: '(1) if eligible for retirement under any law on June 30 of the fiscal year in which his second failure of selection occurs, be retired on that date; or '(2) if ineligible for retirement * * * be retained on active duty and retired on the last day of the month in which he completes twenty years of active service, unless earlier removed under another provision of law.'
Plaintiff, on June 25, 1964, instituted this action seeking to have his retirement declared a nullity and also seeking an 'order directing that the defendants restore plaintiff to the line of promotion * * * including promotion to the rank of Commander.'
On June 26, 1964, the Court (Judge Curran) issued a temporary restraining order cancelling the retirement order of June 3, 1964. The undersigned on July 10, 1964, denied plaintiff's motion for a preliminary injunction.
Plaintiff grounds his complaint on alleged violations of Coast Guard regulations in the preparation and filing of two of the many fitness reports considered by the three Selection Boards. He alleges that these reports, prepared in 1956 and 1960, were 'adverse' and were not shown to him as required by the provisions of 7.a. of the United States Coast Guard Personnel Instruction No. 34-55, September 19, 1955, which provides:
'Any adverse entry or remark in the report must be referred to the officer concerned for his comment. Moreover, adverse entries in any section of the report should be discussed in Section 17. The Commandant will return reports which are not in compliance with this paragraph for referral to the officer reported on. Borderline or doubtful cases shall be referred to the officer reported on.'
The 1960 report was admitted by the defendant to be 'adverse'. However, as shown in the administrative record, it was shown to the plaintiff under a letter dated April 11, 1960, and he submitted a twelve-page rebuttal on August 1, 1960.
The 1956 report was not shown to the plaintiff, but it was the judgment of the reporting officer and other officials that this report was not 'adverse'. As shown on line 16(b) of that report, plaintiff was found to be 'an acceptable officer,' and none of the columns marked 'adverse' has been checked. Plaintiff contends, however, that the unfavorable comments contained in Section 17 of the 1956 report rendered that report 'adverse' so as ...