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LARSEN v. HOFFMAN

March 30, 1977

ROBERT LARSEN, et al., Plaintiffs,
v.
MARTIN R. HOFFMAN, et al., Defendants. RALPH S. BRYNER, et al., Plaintiffs, v. MARTIN R. HOFFMAN, et al., Defendants



The opinion of the court was delivered by: CORCORAN

 I

 Plaintiffs in these consolidated actions are Reserve officers *fn1" in the United States Army who were serving on active duty in commissioned status until they were terminated from active duty in late 1975 by reason of two consecutive non-selections ("pass-overs") for promotion to the next higher temporary grade. Had they not been so terminated, plaintiffs would have completed eighteen years of creditable active duty service and been within two years of becoming eligible for retired pay. Under such circumstances, they would not be subject to involuntary release from active duty before becoming eligible for such pay, unless their releases were approved by the Secretary. *fn2"

 The pertinent facts may be outlined as follows.

 During 1974 and 1975, the plaintiffs were among Reserve officers within "zones of consideration" *fn3" for temporary promotion to the next higher grade. In 1974, plaintiffs were notified that as a result of actions taken by 1974 Promotion Selection Boards, *fn4" they were among those officers who had been considered but not selected, and that their non-selections constituted passovers for promotion as defined in AR 624-100. Plaintiffs were further notified in 1975 that as a result of their second non-selection for promotion by the 1975 Promotion Selection Boards, Army policy required their release from active duty on the ninetieth day after receipt of notification, Sec. XVII, Ch. 3, AR 635-100.

 On September 24, 1975, prior to their release from extended active duty in commissioned status, the plaintiffs filed applications with the Army Board for Correction of Military Records [ABCMR] seeking correction of their service records, pursuant to 10 U.S.C. § 1552 and AR 15-185. Subsequent to filing their ABCMR applications, plaintiffs ascertained that the 1974 and 1975 Promotion Selection Boards which had passed them over for promotion failed to include Reserve officers as members as required by statute, Department of Defense Instruction and Army Regulation. *fn5" Plaintiffs thereupon supplemented their ABCMR applications on October 28, 1975, setting forth the absence of Reserve officers from membership of the boards, and requesting withdrawal of notifications of release from active duty. They each claimed retroactive pay and appropriate allowances, the voiding of their non-selections for promotion to the next higher grade, correction of military records to show selection for and promotion to the next higher grade, and such other and additional relief as might be appropriate.

 A hearing on plaintiffs' applications, as supplemented, was conducted before the ABCMR on December 10, 1975. *fn6" The ABCMR subsequently issued findings and recommendations on plaintiffs' applications which were forwarded to the Secretary of the Army. With respect to the lack of Reserve officers on the 1974 and 1975 promotion selection boards, the ABCMR's findings and conclusions were as follows:

 
6. That with respect to the sixth issue, Title 10 U.S.C. Section 266(a), does provide that all boards convened for appointment, promotion, demotion, involuntary release from active duty, et cetera, of Reserves shall include an appropriate number of Reserves as prescribed by the Secretary concerned under the standards and procedures established by the Secretary of Defense; that DOD Instruction 1205.4 dated 23 June 1959 does establish the policy that boards convened for the appointment, promotion, demotion, involuntary release from active duty, et cetera, of Reserves shall be constituted as prescribed by the appropriate Secretary and shall include appropriate numbers of members from the Reserve Components; and that AR 624-100 does prescribe that whenever the zone of consideration includes non-regular officers, selection boards will, where practicable, include at least one officer of the Reserve Components. That while it appears that the Department may not have complied with the intent of the law to have an appropriate number of Reserve Component members on the 1974 and 1975 promotion boards when considering Reserve Officers, the written depositions of selection board members indicate that an individual's component had little or no bearing in their consideration and selection of an officer for promotion. Further it appears from a review of the entire matter that any decision or other action by the Department to omit Reserve officers from promotion selection boards was not done in any arbitrary or capricious manner or with malicious intent to harm or prejudice the applicants' promotion chances as Reservists. That the Department's interpretation of "where practicable" has been construed to mean "qualified and available" to serve as a board member and such interpretation appears to be reasonable; however, the information submitted for consideration of this Board fails to show that there were no qualified Reserve officers, or that such officers were not available to serve on promotion Boards; indeed, it appears from testimony submitted to this Board that a reasonably diligent search would have been successful in locating at least one Reserve Officer who met the qualification standards and was available to serve as a selection board member. That in viewing the situation in the most favorable light to the applicants, it is apparent the absence of Reservists from the 1974 and 1975 selection boards may have deprived them of consideration in a manner intended; that although the applicants have not shown that they have been harmed because there was no Reserve Officer on the board, the failure to have a Reserve Officer as a member of the selection board raises some doubt as to whether the applicants were accorded proper consideration for promotion under the 1974 and 1975 promotion criterion.
 
7. That in view of the foregoing findings and conclusions, the failure of the Department to appoint an appropriate number of Reserve Officers as members of the 1974 and 1975 selection boards has resulted in an injustice to the applicants in that it has deprived them of consideration for promotion by selection boards containing Reserve Officers. ABCMR Proceedings, 10 December 1975, at 21-22.

 On that basis, the ABCMR recommended that new Army Promotion Selection Boards [Reconstituted Boards] be convened, with an appropriate number of Reserve officers as members, to reconsider plaintiffs and others similarly situated on the basis of reconstituted military records (omitting reference to previous selection or non-selection for promotion) and under 1974 and 1975 Selection Board criteria. Id., at 22. The ABCMR further advised that the names of officers and warrant officers who were previously not selected for promotion should be reported back to the ABCMR, after favorable or unfavorable action by the Reconstituted Boards, for appropriate corrective action or further administrative proceedings, as the case might be. Id., at 22-23. However, the ABCMR made neither findings nor recommendations relative to the plaintiffs' request for immediate, retroactive restoration to active duty in a commissioned status without loss of active duty commissioned service and for adjustment of back pay and allowances.

 The Secretary of the Army approved in full the ABCMR's findings, conclusions, and recommendations and, on January 27, 1976, issued a memorandum to the Chief of Staff directing him to convene Reconstituted Boards in accordance with the ABCMR's recommendations. However, the Secretary also ordered that any officer whose date for discharge from active duty in commissioned status (because of non-selections by either or both of the 1974 and 1975 Promotion Selection Boards) fell after the date of the Secretary's approval of the ABCMR findings and recommendations and memorandum to the Chief of Staff, should be retained on active duty pending completion of reviews by the Reconstituted Boards. *fn7"

 On April 13, and May 24, 1976, plaintiffs commenced present actions against the Secretary of the Army and the United States for declaratory and equitable relief, correction of military records, and back pay and allowances. *fn8" District Court jurisdiction is premised upon 28 U.S.C. §§ 1331 (federal question), 1361 (mandamus), 1346 (civil action against United States), 2201-02 (declaratory judgments), the Privacy Act, 5 U.S.C. § 552a, 10 U.S.C. §§ 266, 277, 3441-3452 (reserve components and temporary appointments), Army Regulations 624-100 and 635-100, Department of Defense Instruction 1205.4, and the Fifth Amendment to the Constitution.

 II

 The principal issue presented by defendants' motion to dismiss is whether this Court has jurisdiction over the claims of plaintiffs for back pay, allowances and concomitant reinstatement since the Tucker Act, *fn9" 28 U.S.C. § 1346(a)(2), confers jurisdiction upon district courts only over claims against the United States not exceeding $10,000 in amount.

 Plaintiffs take the position that (a) their complaint essentially seeks reinstatement, rather than back pay and allowances, and so under the rule set forth in Melvin v. Laird, 365 F. Supp. 511 (E.D.N.Y. 1973), the district courts may properly exercise jurisdiction; (b) to arrive at the relevant amount in controversy for Tucker Act purposes, their individual retroactive wage and allowance claims must be reduced by appropriate set-offs, counterclaims and credits; and (c) even if this Court is without jurisdiction under the Tucker Act, several alternative jurisdictional ...


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