AUBREY E. ROBINSON, Jr., District Judge.
This is an action in which plaintiff, a retired Lieutenant Colonel in the United States Army, challenges his non-selection for promotion, in both temporary and permanent grades, by Army promotion boards which considered plaintiff for advancement in the period from 1968 to 1975, and seeks reconsideration of those promotion decisions. The matter is before the Court on the parties' cross-motion for summary judgment.
For the reasons discussed below, the Court finds that there are no genuine issues of material fact and that Defendants are entitled to judgment as a matter of law.
Plaintiff graduated from West Point in 1944 and served for some time in extended active duty and reserve capacities. In 1948, plaintiff was appointed as a Second Lieutenant in the Regular Army. Plaintiff was subsequently promoted to the rank of Captain and then to Major. Between 1967 and 1975 plaintiff was considered a number of times for promotion to either temporary ("AUS") or permanent ("RA") grades of Lieutenant Colonel and Colonel. Plaintiff was denied selection by the 1967-1969 AUS Colonel and 1968-1970 RA Lieutenant Colonel promotion boards. However, an error was discovered in plaintiff's personnel file and plaintiff's case was referred to a Standby Advisory Board, which in July 1970, after reviewing plaintiff's situation, upheld the AUS Colonel non-selections but recommended promotion to the grade of Lieutenant Colonel RA, a grade to which plaintiff was subsequently appointed.
Plaintiff's file was inadvertently omitted from consideration by the 1972 RA Colonel Selection Board. The matter was referred to a Standby Advisory Board which in July 1973 recommended non-selection. Plaintiff was considered and non-selected by the 1970-1975 AUS Colonel and the 1973-1974 RA Colonel promotion boards. Plaintiff was involuntarily retired from the service on April 30, 1976.
In January 1976, plaintiff filed an application for relief with the Army Board for Correction of Military Records ("ABCMR"), seeking to void certain of his non-selections. The hearing examiner assigned to the case found against plaintiff's claims and the ABCMR adopted the examiner's findings on September 29, 1976. Plaintiff filed the instant lawsuit on September 14, 1977. Plaintiff's complaint charges violations of the statutory provisions of the Armed Forces Act and of the applicable governing regulations. Specifically, plaintiff alleges that the 1970 Standby Advisory Board which recommended non-selection to AUS Colonel and the 1973 Standby Advisory Board which recommended non-selection to RA Colonel were improperly constituted in that the officers on those boards were passing on successive promotions contrary to 10 U.S.C. § 3297,
and Army Regulation 624-100;
that use of the 1970 and 1973 Standby Advisory Boards violated plaintiff's right to consideration for promotion on a fair and equitable basis; and that the 1972 Selection Board which denied plaintiff selection to AUS Colonel was improperly constituted in that the board consisted in part of officers junior in rank to plaintiff contrary to Army Regulation 624-100.
Plaintiff asks this Court to void the various non-selections challenged in the suit; to direct the Secretary of the Army to correct plaintiff's military records accordingly; and to require the Secretary to reconsider plaintiff's promotion to the temporary and permanent grade of Colonel.
Courts are extremely reluctant to interfere with the personnel matters of the armed services. Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S. Ct. 534, 97 L. Ed. 842 (1953); Knehans v. Alexander, 184 U.S. App. D.C. 420, 566 F.2d 312 (D.C. Cir., 1977). The promotion of an officer is a highly specialized function involving military requirements of the service and qualifications of the officer in comparison with his contemporaries, and promotion decisions are better left to the expertise and judgment of the military. Brenner v. United States, 202 Ct.Cl. 678, 693-4 (1973), cert. denied, 419 U.S. 831, 95 S. Ct. 54, 42 L. Ed. 2d 56 (1974). There is no constitutionally protected entitlement to promotion, Vander-Molen v. Stetson, 187 U.S.App. D.C. 183, 571 F.2d 617 at 627 (D.C. Cir., 1977), and courts have been scrupulous not to intervene with regard to the military's discretion as to ratings and promotions unless clear error is shown or relief is specifically required by law or regulation. Boyd v. United States, 207 Ct.Cl. 1 (1975), cert. denied, 424 U.S. 911, 96 S. Ct. 1106, 47 L. Ed. 2d 314 (1976); VanderMolen, supra. The proper focus for the Court in cases like the one at hand is on the action of the ABCMR and the Secretary of the Army in considering and approving plaintiff's nonselections and denying plaintiff relief. The appropriate standard for review herein is whether the denial of relief was arbitrary, capricious, clearly erroneous, or contrary to law. Nolen v. Rumsfeld, 535 F.2d 888 (5th Cir. 1976); Knehans, supra.
Plaintiff has attacked the actions of the 1970 and 1973 Standby Advisory Boards on a number of grounds. With respect to plaintiff's arguments as to the composition of those boards, the Court is not persuaded that the specific criteria of 10 U.S.C. § 3297 and Army Regulation 624-100, paragraph 16, control the operation of standby advisory boards. Such boards are creatures, not of statute, but of paragraph 18(b) of AR 624-100, Knehans, supra, at p. 315, fn.6, and exist as an aid to the Secretary in reviewing the actions of selection boards, deciding whether material error has been committed, and correcting any errors in a manner to ensure fairness to the officers involved. Standby advisory boards are governed by the Letter of Instruction for Standby Advisory Board dated December 1, 1970,
which calls into play the spirit but not the specific terms of various statutory provisions dealing with Army appointment and promotion. There is no formal requirement prohibiting the same officers serving on successive standby advisory boards or reviewing successive promotion non-selections.
With respect to plaintiff's arguments as to the use and practice of standby advisory boards, the Court is not persuaded that plaintiff has been denied promotion consideration on a fair and equitable basis. Plaintiff's inadvertent omission from consideration by the 1972 RA Colonel Selection Board was remedied by subsequent review by the 1973 Standby Advisory Board. The standards employed by the 1970 and 1973 Standby Advisory Boards appear appropriate. Review by standby advisory boards is an act of administrative grace, Knehans, supra, at 315, and plaintiff's complaints against board procedure lack merit.
Lastly, plaintiff claims that his nonselection to the grade of AUS Colonel by the 1972 Selection Board must be voided because one member of that board held a date of rank junior to plaintiff's, contrary to the requirements of Army Regulation 624-100, paragraph 16(b).
However, the Court is persuaded, as defendants argue, that this impropriety constitutes harmless error in light of the subsequent history of promotion board action with regard to plaintiff. There is no legal entitlement to a set number of promotion considerations. Plaintiff was considered several times for promotion to AUS Colonel by properly constituted selection boards and was rejected. These subsequent considerations and nonselections render any defect in the 1972 proceedings harmless. Dilley v. Alexander, 440 F. Supp. 375 (D.D.C., 1977).
The ABCMR reviewed the various nonselections in issue in this lawsuit and concluded that plaintiff had been provided adequate promotion consideration and that the evidence failed to demonstrate the existence of any material error or injustice warranting promotion reconsideration. In view of the entire record herein, this Court cannot say that the decision of the ABCMR is clearly erroneous, arbitrary or capricious, or lacking a rational basis. Therefore the Court must enter judgment for the defendants in this case.