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).
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.]
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