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July 27, 1977

MICHAEL F. DILLEY, et al., Plaintiffs
CLIFFORD ALEXANDER, et al., Defendants; RAYMOND W. FONTAINE, et al., Plaintiffs v. CLIFFORD ALEXANDER, et al., Defendants; MILTON D. O'QUINN, Captain, Plaintiff v. CLIFFORD ALEXANDER, Defendant; RUSSELL A. POWELL, Major, Plaintiff v. CLIFFORD ALEXANDER, Defendant

The opinion of the court was delivered by: WADDY

 These consolidated cases came on before the Court on June 8, 1977, for a hearing on defendants' motion filed in all four cases for summary judgment and plaintiffs' cross-motion thereto. Plaintiffs are Reserve Officers of the United States Army holding ranks of Major and Captain who have been, or will be, released from active duty pursuant to Army Regulations (AR) 624-100 and 635-100 by reason of two non-selections by Promotion Selection Boards convened in 1975 and 1976 for temporary promotion to the next higher grade. Defendants are Clifford Alexander, Secretary of the Army, *fn1" and the United States of America.

 Alleging various defects in the promotion selection process, plaintiffs applied to the Army Board for Correction of Military Records (ABCMR) requesting that their records be corrected to eliminate the non-selection by the 1975 Selection Boards. Following an administrative review and hearing, the ABCMR issued initial findings and conclusions rejecting all of plaintiffs' allegations except the contention that the 1975 Selection Boards were improperly constituted because they did not include Reserve Officer membership. As to this contention, the ABCMR made a preliminary determination that

. . . it is apparent that the absence of Reservists from the . . . 1975 Selection Board may have deprived [plaintiffs] 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 . . .. Record at 27.

 As a means of resolving that doubt it recommended that the Secretary reconstitute the 1975 Boards with the proper membership and that plaintiffs be reconsidered for promotion by such Reconstituted Boards. The Secretary approved the ABCMR's recommendations and in accordance with those recommendations "Reconstituted Boards" *fn2" were convened during the summer of 1976 to reconsider plaintiffs for temporary promotions. Before these Reconstituted Boards were convened, however, plaintiffs had been considered, but not selected by appropriate and duly constituted 1976 Temporary Promotion Selection Boards.

 Plaintiffs were again not selected for promotion by the 1975 Reconstituted Boards. After considering the results of the 1975 Reconstituted Boards, the ABCMR concluded that it was ". . . reasonable to presume that had [plaintiffs] been considered by properly constituted boards, they would not have been selected for promotion" and that plaintiffs' non-selections by the original 1975 Selection Boards were "neither erroneous nor unjust." Exhibit C to the Complaints; Record at IX-CXXXIII. The ABCMR thereupon rendered its final decision denying plaintiffs' application.

 The final decision of the ABCMR was approved by the Secretary and plaintiffs were thereafter individually notified by form letter that they would be terminated from active duty 90 days from receipt of notification. These consolidated actions were then filed seeking declaratory and injunctive relief. On January 31, 1977, the Court denied plaintiffs' motion for a preliminary injunction which sought to prevent their scheduled releases from active duty.

 The parties agree that the appropriate standard of review in these cases now before the Court on cross-motions for summary judgment is whether the ABCMR's decision and the action of the Secretary thereon were arbitrary, capricious, unsupported by substantial evidence or contrary to law and regulations. Nolen v. Rumsfeld, 535 F.2d 888 (5th Cir. 1976).

 Plaintiffs have raised several independent arguments in support of their motion for summary judgment. The Court must focus first, however, on plaintiffs' threshold contention that the original 1975 Selection Boards had no jurisdiction to issue non-selections for the purpose of release from active duty because the composition of those Boards did not comply with statutory and regulatory mandates. It is contended that the actions of the original 1975 Selection Boards were void ab initio and not subject to retroactive validation by subsequent actions taken by the 1975 Reconstituted Boards. Plaintiffs assert that they need not attempt to show specific harm or prejudice resulting from the improper composition in order to prevail on the merits.

 Plaintiffs rely on two Court of Claims cases in support of their contention that the original 1975 Selection Boards were without jurisdiction: 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 Ricker v. United States, 184 Ct. Cl. 402, 396 F.2d 454 (1968).

 In Henderson, one of the voting members of an Air Force Faculty Board convened for the purpose of determining whether petitioner should be dropped from a pilot training program was junior in rank to petitioner in direct violation of mandatory Air Force regulations. Plaintiff filed suit to recover back pay and allowances. The Court of Claims ruled in favor of plaintiff, finding that the Faculty Board was without jurisdiction to hear plaintiff's case and its proceedings void ab initio, and that the Correction Board's denial of plaintiff's application for relief was arbitrary. 175 Ct. Cl. at 701-702.

 Similarly, in Ricker, a member of a Navy Continuation Board had been a member of that Board the previous year, although pursuant to the Hump Act, no officer was to serve on two consecutive boards. See 10 U.S.C. § 5702. Plaintiffs sued for the difference between their retired pay and active duty pay. Finding that the legality of the composition of a military board affects substantial rights of military men, the Court held this violation of a statutory mandate rendered the continuation proceedings fatally defective. 396 F.2d at 457.

 Defendants concede that the original 1975 Selection Boards did not have Reserve Officers as members and were therefore improperly constituted. *fn3" They contend, however, that the decision of the ABCMR to deny plaintiffs relief and the Secretary's action thereon must be upheld because the advisory Reconstituted Boards demonstrated that plaintiffs would not have been promoted even if Reserve Officers had been included as members of the original 1975 Boards, and that therefore, the composition error was harmless. Relying on Knehans v. Callaway, 403 F. Supp. 290 (D.D.C. 1975), defendants contend that plaintiffs have failed to show the composition error " necessarily [led] to a non-promotion decision." 403 F. Supp. at 296 (emphasis in original). It is further asserted that under 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, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), the ABCMR's advisory use of the Reconstituted Boards was an appropriate method for determining whether the composition error was prejudicial.

 The Court agrees with defendants that this issue cannot be adequately resolved without considering whether the composition defect was prejudicial and therefore declines to expand the narrow rule of law articulated in Henderson, supra, and Ricker, supra, absent any showing of ...

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