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FULLER v. ALEXANDER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


July 27, 1977

MAJOR CHRISTOPHER FULLER, Plaintiff
v.
HONORABLE CLIFFORD ALEXANDER, JR., Secretary of the Army, Defendant

The opinion of the court was delivered by: WADDY

MEMORANDUM

 Plaintiff, Christopher L. Fuller, is a United States Army Reserve Officer who has been released from active duty pursuant to Army Regulation (AR) 635-100, as amended May 19, 1975, by reason of two consecutive non-selections for promotion in 1974 and 1975 to the rank of Lieutenant Colonel. Defendant is Clifford L. Alexander, Jr., Secretary of the Army. *fn1"

 On September 26, 1975, plaintiff filed his Complaint and a motion for preliminary injunction to prevent his scheduled release from active duty. He challenged alleged defects in the promotion selection process, primarily alleging that the May 19, 1975, amendment to AR 635-100 was retroactive and therefore illegal, and that defendant had violated AR 624-100, para. 22(b) by allowing promotion of a greater proportion of officers with a date of rank later than plaintiff's than that regulation permits.

 Inasmuch as plaintiff had not exhausted his administrative remedies before the Army Board for Correction of Military Records (ABCMR) on all of the issues raised by his Complaint, this Court, on October 28, 1975, denied plaintiff's motion for preliminary injunction and stayed the action pending exhaustion of administrative remedies. See Sohm v. Fowler, 124 U.S. App. D.C. 382, 365 F.2d 915 (1966).

 Thereafter, in November, 1975, plaintiff joined with other similarly situated Reserve Officers whose applications for relief based on these same (and some additional) grounds were already pending before the ABCMR.

 Following an administrative review and hearing, the ABCMR issued initial findings and conclusions rejecting all of plaintiff's allegations except the contention that the 1974 and 1975 Promotion Selection Boards were improperly constituted because they did not include Reserve Officer membership. *fn2" The ABCMR recommended that Reconstituted Boards be convened to reconsider all officers who were within the primary zone for promotion to Lieutenant Colonel (AUS) in both 1974 and 1975. Following approval by the Secretary, that recommendation was implemented and Reconstituted Selection Boards, made up of entirely new membership and including Reserve Officers, were convened. Plaintiff was again considered, but not selected for promotion by the Reconstituted 1974 and 1975 Selection Boards.

 Finding that plaintiff would not have been selected for promotion even if the original 1974 and 1975 Promotion Selection Boards had contained Reserve Officer membership, the ABCMR denied plaintiff's requested relief. That decision was subsequently approved by the Secretary.

 Thereafter, his administrative remedies having been exhausted, plaintiff filed this pending motion for summary judgment, and defendant filed a cross-motion thereto.

 The parties agree that the appropriate standard of review is whether the ABCMR's decision in denying plaintiff's requested relief, and the action of the Secretary thereon, was arbitrary, capricious, unsupported by substantial evidence, or contrary to law and regulations. Nolen v. Rumsfeld, 535 F.2d 888 (5th Cir. 1976).

 In support of his motion for summary judgment, plaintiff advances only three arguments: *fn3" (1) that the failure to include Reserve Officers as members of the original 1974 and 1975 Promotion Selection Boards violated 10 U.S.C. § 266 and AR 624-100; (2) that the Secretary did not have authority to order the convening of Reconstituted Selection Boards under 10 U.S.C. § 1552(a); *fn4" and (3) that the ABCMR did not impartially consider plaintiff's record as required by AR 624-100 because that record contained over 25 material and serious errors.

 Plaintiff did not, however, allege violations of applicable statutes and regulations by reason of defendant's failure to include Reserve Officers on the original 1974 and 1975 Promotion Selection Boards in his Complaint. Accordingly, at the hearing on these cross-motions for summary judgment, the Court inquired of plaintiff whether he wished to so amend his Complaint and granted plaintiff's oral motion for leave to file an appropriate motion. On July 6, 1977, plaintiff filed a motion for leave to amend his complaint, and, defendant having filed no opposition thereto, plaintiff's motion will be granted.

 Defendant contends that plaintiff has shown no prejudice by reason of the composition defect in the original 1974 and 1975 Promotion Selection Boards, and asserts that the lack of Reserve Officer membership on those Selection Boards was harmless procedural error as shown by the failure of the Reconstituted 1974 and 1975 Selection Boards to recommend plaintiff for promotion.

 It is further contended that the Secretary did not exceed his authority under 10 U.S.C. § 1552(a) in ordering that the original 1974 and 1975 Promotion Selection Boards be reconstituted and that plaintiff be reconsidered for promotion by such Reconstituted Boards.

 For the reasons set forth in the Memorandum Opinion filed by this Court in Dilley v. Alexander, 440 F. Supp. 375, this Court is of the opinion that the narrow rule of law articulated in Henderson v. United States, 175 Ct. Cl. 690 (1966), cert. denied, 386 U.S. 1016, 18 L. Ed. 2d 455, 87 S. Ct. 1373 (1967), and relied upon by plaintiff herein, should not be expanded in this case, and that the procedures utilized by the ABCMR, and approved by the Secretary, were reasonable and appropriate in light of the circumstances. See Colm v. Kissinger, 406 F. Supp. 1250 (D.D.C. 1975) and Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). Accordingly, having failed to show that the composition error " necessarily [led] to a non-promotion decision," plaintiff is not entitled to judgment. Knehans v. Callaway, 403 F. Supp. 290, 296 (D.D.C. 1975) (emphasis in original). *fn5"

 This Court further concludes that there was nothing improper either in defendant's decision to implement the ABCMR's interim recommendations and reconstitute the original 1974 and 1975 Promotion Selection Boards, or in the procedures employed in connection therewith.

 Finally, this Court finds nothing in the record to substantiate plaintiff's contention that his records were materially in error when reviewed by the Promotion Selection Boards, or that the ABCMR's failure to correct those records or relieve him of the promotion non-selections was in any way unlawful.

 Therefore, this Court concludes that the actions and decisions of the ABCMR, and the Secretary's approval thereof, were not arbitrary, capricious, unsupported by substantial evidence or otherwise not in accordance with applicable law and Army regulations.

 There being no genuine issue as to any material fact, defendant is entitled to judgment as a matter of law. Plaintiff's motion for summary judgment will be denied; defendant's cross-motion for summary judgment will be granted.

 Joseph C. Waddy United States District Judge

 [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 440 F. Supp.]

 ORDER

 Upon consideration of plaintiff's motion for leave to file an amended complaint and the memorandum in support thereof; and plaintiff's motion for summary judgment and defendant's cross-motion thereto, the memoranda in support of and in opposition to said motions, the pleadings, affidavits and the entire record herein, including the record of administrative proceedings before the Army Board for Correction of Military Records, and it appearing therefrom that there is no genuine issue of any material fact, and that defendant is entitled to judgment as a matter of law for the reasons set forth in the Memorandum filed herein by the Court this same date, it is by the Court this 27th day of July, 1977,

 ORDERED, that plaintiff's motion for leave to amend his complaint be, and the same hereby is, granted, and the Clerk is directed to file this same date the Amended Complaint attached as an exhibit to plaintiff's motion, and it is

 FURTHER ORDERED and ADJUDGED, that plaintiff's motion for summary judgment be, and the same hereby is, denied; and defendant's cross-motion for summary judgment be, and the same hereby is, granted, and that judgment herein be entered in favor of defendant.

 Joseph C. Waddy United States District Judge


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