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November 4, 1975

HONORABLE MARTIN W. HOFFMAN, Secretary of the Army, Defendant

The opinion of the court was delivered by: CORCORAN


 Plaintiff, a Reserve Captain in the United States Army, entered the armed services as a Private on July 2, 1959, and was commissioned as a Second Lieutenant in September, 1964. Subsequently, MacKay received promotions to First Lieutenant in March of 1966 and to Captain the following year.

 In January, 1974, the Secretary of the Army convened a Promotion Selection Board to consider officers, one of whom was plaintiff, for promotion to the rank of temporary Major. Two "zones of consideration" *fn1" were established -- a primary zone, which included Captain MacKay, and a secondary zone, consisting of captains with a somewhat later date of rank than those in the primary zone. Selections were to be made from both zones of consideration, but only those officers deemed best qualified, regardless of zone, could be recommended for promotion. See A.R. 624-100, para. 18a(1). It was contemplated that 85% of the Board's recommendations would come from the primary zone and 15% from the secondary zone, subject, of course, to the "best qualified" standard.

 At the conclusion of its evaluations, the Board recommended to the Secretary of the Army a list of officers of which 92.5% was drawn from the primary zone and 7.5% from the secondary zone. Concluding that a misunderstanding had occurred, the Secretary dissolved that Board and convened a second one on March 30, 1974. As a precaution, the Secretary redrafted his Letter of Instruction *fn2" to this second Promotion Selection Board to dispel any ambiguity that may have existed in the former version as to the intended 85%-15% promotion ratio. In addition, the Secretary articulated in his Letter of Instruction the following statement of purpose with reference to secondary zone promotions:

The secondary purpose of accelerating below the zone promotions is to provide the Army with a pool of exceptionally talented and relatively young officers in the field grades. In this regard, youth, is, in itself a major asset and primary consideration for promotion from the secondary zone. The clear intent is that the Board select the maximum number of officers from the secondary zone permitted in this letter of instruction.

 Pursuant to the Secretary's new directives, the second Promotion Selection Board's list of recommendations resulted in an approximately 85-15 ratio in the primary and secondary zones, respectively. While it is impossible to ascertain whether Captain MacKay had been recommended by the first Board, *fn3" it is evident that plaintiff, who was in the primary zone of consideration, was not recommended by the second. *fn4"

 In July of 1975, another Promotion Selection Board was convened; Captain MacKay was again within the primary zone. For a second time, however, the plaintiff was not recommended for promotion.

 On or about August 15, 1975, the plaintiff was notified that in view of his nonselections for promotion he was subject to mandatory relief from active duty pursuant to Army Regulation 635-100, para. 3-65a(1). Although MacKay remains on active duty at present, he has been notified that he will be relieved from active duty not later than early November, 1975. *fn5"

 On August 18, 1975, plaintiff filed an application with the Army Board for Correction of Military Records ("ABCMR") for correction of his Officer Efficiency Report. Again, on August 20, 1975, Captain MacKay applied to the ABCMR requesting correction of his military records based on the two promotion passovers.

 Plaintiff filed this action on September 25, 1975. He challenges the legality of the Army's promotion selection process, and seeks a declaratory judgment that his order for release from active duty is void and unlawful, *fn6" and that he should be continued on active duty. Additionally, plaintiff seeks broad relief against defendant by way of preliminary injunction against defendant, the Secretary of the Army.

 The Secretary has filed a motion to dismiss or, in the alternative, to stay all proceedings until such time as the plaintiff has exhausted his administrative remedies before the ABCMR.


 It is well-established, as a general rule, that in order to obtain preliminary injunctive relief the moving party must satisfy four prerequisites, viz. : (a) a strong showing of probability of success on the merits; (b) irreparable injury in the absence of preliminary relief; (c) absence of substantial harm to others if relief is granted; and (d) compatibility of the relief requested with the public interest. Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921 (1958), Murray v. Kunzig, 149 U.S. App. ...

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