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KNEHANS v. CALLAWAY

November 12, 1975

MAJOR ADOLPH H. KNEHANS, JR., Plaintiff,
v.
HOWARD H. CALLAWAY,* Secretary of the Army, Defendant



The opinion of the court was delivered by: JONES

 Plaintiff, formerly a Major in the regular Army, brought this action on October 30, 1973, to prevent his imminent honorable discharge from the Army. Prior to filing suit, plaintiff had twice been passed over for promotion by Selection Boards. By statute, a commissioned officer who has been passed over for promotion by two consecutive Selection Boards shall, if not eligible for retirement, be honorably discharged within seven months of the date that the Secretary approves the action of the second Selection Board. 10 U.S.C. § 3303(d) (1970). Accordingly, plaintiff was ordered discharged on November 1, 1973.

 Plaintiff's personnel file, when presented to both boards, was admittedly defective. Specifically, the file (1) contained a negative Officer Efficiency Report (OER) which was invalid, (2) did not contain several letters of recommendation and appreciation which plaintiff contends should have been included in his file, and (3) exhibited several letters of recommendation in the file which had not been stamped by the second Selection Board, which leads plaintiff to conclude that the second Selection Board did not consider those letters. On September 17, 1973, the Army voided and removed the negative OER from plaintiff's file, since plaintiff had not served under the supervision of the rating officer for the required 90 days. On October 2, 1973, the Army determined that removal of the negative OER constituted a "material change" in plaintiff's file, and accordingly referred his case to the Army Standby Advisory Board. *fn1" The Standby Advisory Board failed to recommend plaintiff for promotion on October 25, 1973.

 This court denied plaintiff's application for a temporary restraining order on October 30, 1973, and then on April 18, 1974, remanded the case to the Army Board for the Correction of Military Records (ABCMR), *fn2" so the plaintiff could properly exhaust his administrative remedies. On November 6, 1974, the ABCMR "determined that insufficient evidence has been presented to indicate probable material error or injustice," and denied plaintiff's application for relief. Presently before the court are Cross-Motions for Summary Judgment.

 JURISDICTION

 It is clear that this court has jurisdiction over plaintiff's complaint. Plaintiff alleges that the defendant violated 10 U.S.C. § 3303 and his own regulations by permitting the Selection Boards to pass on his promotion based upon a defective file, and further that he violated the Fifth Amendment by not affording plaintiff a hearing before the various boards. Courts will not hesitate to review military action allegedly contrary to statute or regulation. See Harmon v. Brucker, 355 U.S. 579, 581-82, 2 L. Ed. 2d 503, 78 S. Ct. 433 (1958); Hodges v. Callaway, 499 F.2d 417, 419 n.2 (5th Cir. 1974); Peavy v. Warner, 493 F.2d 748, 750 (5th Cir. 1974); Denton v. Secretary of Air Force, 483 F.2d 21, 24-25 (9th Cir. 1973); United States ex rel. Sledjeski v. Commanding Officer, 478 F.2d 1147, 1150 (2d Cir. 1973). Moreover, while courts have made clear that they are not in the "promotion business," they have reviewed allegations that actions of Selection Boards in denying promotion have been procedurally irregular. See Yee v. United States, 206 Ct. Cl. 388, 512 F.2d 1383, 1387 (Ct. Cl. 1975); Brenner v. United States, 202 Ct. Cl. 678, 693 (1973); Weiss v. United States, 187 Ct. Cl. 1, 408 F.2d 416, 418 (1969); Ricker v. United States, 184 Ct. Cl. 402, 396 F.2d 454, 457 (1968). Finally, this court has jurisdiction over plaintiff's constitutional claim. See Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971).

 MERITS

 Defendant has admitted that the invalid OER should not have been placed in plaintiff's file for consideration by the Selection Boards. Exhibit B at 10-11, Exhibit C at 22 to Defendant's Memorandum in Support of Motion to Dismiss, or in the Alternative for Summary Judgment. As a result, he directed the Standby Advisory Board to review the decisions of the Selection Boards. Neither the failure to include in plaintiff's file letters of commendation, nor the alleged failure of the second Selection Board to consider certain letters of commendation in his file, were stated as bases for assignment of the case to the Standby Advisory Board. Plaintiff, however, has pointed to no regulation requiring the Selection Board to stamp letters of commendation as an indication of consideration. In the absence of adequate proof to the contrary, the court will assume that the Selection Boards considered all the material in plaintiff's file. See Brenner v. United States, 202 Ct. Cl. 678, 690, 692 (1973). Further, the court will assume without deciding that failure to include certain letters of commendation in plaintiff's file violated army regulations. *fn3" See footnote 4, infra. The first question before the court, therefore, is whether plaintiff is now entitled to reconsideration by two Selection Boards based upon a properly constituted file, in light of the fact that his file as presented to the prior two Selection Boards was constituted in violation of army regulations.

 
It seems quite clear to us that the ABCMR can, if it determines that [plaintiff] has been illegally discharged, grant him full reinstatement and restoration of all rights, thus in effect making him whole for any injury he might suffer from a wrongful discharge. Hodges v. Callaway, 499 F.2d 417, 422 (5th Cir. 1974).

 Thus, in order to grant plaintiff's requested relief, it is not enough to find that the Selection Boards violated Army regulations; the plaintiff must further show that the ABCMR acted arbitrarily and capriciously in failing to correct the error of the Selection Boards. See Yee v. United States, 206 Ct. Cl. 388, 512 F.2d 1383 (Ct. Cl. 1975).

 In Weiss v. United States, 187 Ct. Cl. 1, 408 F.2d 416 (1969), Weiss was discharged from the Navy after a Selection Board found that he had performed unsatisfactorily and would perform unsatisfactorily in a higher grade. In his file was a letter of reprimand and an unsatisfactory fitness report issued after an investigation into his alleged black market activities in the Philippines. All fitness reports prior and subsequent to the unsatisfactory report were said to be "outstanding," save one. According to Navy regulations, Weiss was permitted to respond in his file to all adverse fitness reports. He responded to the first report, but the Selection Board met and passed on his promotion before he could respond to the second. He appealed to the Board for the Correction of Naval Records (BCNR), the statutory equivalent of the ABCMR, which recommended reversal of the Selection Board's decision and removal of the letter of reprimand and first adverse fitness report. The Secretary of the Navy overruled the BCNR.

 While at issue was the Secretary's authority to reverse the BCNR, the court did discuss ...


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