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TURNER v. DEPARTMENT OF ARMY

February 22, 1978

JOSEPH J. TURNER, Plaintiff,
v.
DEPARTMENT OF ARMY, Defendant


OBERDORFER


The opinion of the court was delivered by: OBERDORFER

Plaintiff is a former Army Chaplain who was involuntarily separated from the military in 1976. He sues under the Privacy Act, 5 U.S.C. § 552(a), et seq., asking the Court to determine the quality and efficiency of his military services for the period May 1 to November 1, 1971. *fn1" Plaintiff originally filed this complaint in the United States District Court for the District of Hawaii on July 12, 1976.

 At the time plaintiff filed this action in Hawaii, a parallel action, filed by plaintiff in this District in 1973, was pending before Judge Corcoran. Turner v. Alexander, C.A. No. 73-0761. Noting the similarity between the two cases, the defendant in this case moved to transfer it from Hawaii to this District so that the two cases could be consolidated. Plaintiff initially opposed the motion to transfer and to consolidate, but later withdrew his opposition for reasons of personal convenience. The case was transferred to this District in February 1977. The plaintiff did not invoke Rule 15, Fed. R. Civ. P. to amend his complaint, and neither the parties nor the Court here invoked Rule 3-4, Local Rules of this District Court to consolidate the two cases.

 Before the transferred case was ripe for decision, Judge Corcoran granted summary judgment for the defendant in the action before him. *fn2" Plaintiff filed an appeal from that judgment, which appeal is now pending in the Court of Appeals for this Circuit. *fn3"

 Meanwhile, the present action has come before this Court on the parties' cross-motions for summary judgment. For the reasons stated below the Court will grant defendant's Motion for Summary Judgment.

 Although the plaintiff framed his complaint in the 1973 action to challenge only the processing of his Article 138 grievance and not its substantive merits, Judge Corcoran made an interlocutory ruling that:

 
[the] only instance of direct harm suffered by the plaintiff, which is apparent from the pleadings and which is cognizable under the provisions of Article 138, is the adverse [officer] efficiency rating. Read in this light, plaintiff's complaint may be construed as directed solely toward that issue . . . . Turner v. Callaway, 371 F. Supp. 188, 192 (1974).

 Judge Corcoran noted that the Army Board for the Correction of Military Records (ABCMR) provided administrative recourse to correct such adverse ratings and, on the motion of the defendant, remanded plaintiff's case to the ABCMR. *fn4"

 On August 6, 1974, following the remand, the plaintiff applied to the ABCMR for the removal of the adverse efficiency rating and for the substitution of a revised one. In response, the ABCMR recommended the removal of the adverse rating and the substitution of a "non-rated" entry in plaintiff's record for the period. The ABCMR declined to recommend replacement of the contested rating with a revised rating because it concluded that "there is no way at this time whereby an effective meaningful revised report can be prepared on the applicant for the period in question." *fn5"

 On October 13, 1975, plaintiff again requested that the ABCMR recommend substitution of a new entry in place of the entry "non-rated" by, among other means, extrapolating a rating from his previous ones, or from the ratings of other chaplains. On February 25, 1976, the Board again declined plaintiff's request to recommend a revised rating. Instead it recommended that laudatory letters regarding plaintiff's service be placed in his file. The ABCMR elaborated on its continued refusal to substitute a revised rating, concluding that:

 
[to] have a report with nothing but an average score would appear to raise serious questions as to why such a report would be in his file and prejudice his chances for promotion. It would not be fair to the applicant to use the average scores in his record up to the time the report was removed because his overall record is not that strong. Conversely it would not be fair to his contemporaries to use a higher average than he would ordinarily be expected to receive. The Office of the Chief of Chaplains has advised that they have no means available to average all of the Chaplains' [ratings] who were in Vietnam during that time frame. *fn6"

 The ABCMR also noted that it is the policy of the Army "to declare a period as being non-rated upon successful appeal of [a rating] through administration channels." ...


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