The opinion of the court was delivered by: OBERDORFER
This matter is before the Court on cross-motions by the parties for summary judgment. The plaintiff, a major in the Army Medical Corps, brought this action for declaratory and injunctive relief to compel the Secretary of the Army to (honorably) discharge him in accordance with 10 U.S.C. § 3303 (1976). The Army's promotion system for officers provides generally that an officer seeking advancement in rank will be considered by promotion selection boards established and governed by statute. See 10 U.S.C. § 3281-3314 (1976). An officer who is not recommended for promotion by a board becomes a "deferred officer"; section 3303 provides that a deferred officer who is not recommended for promotion by the next promotion board to consider him "shall . . . be honorably discharged." 10 U.S.C. § 3303(d).
The Secretary takes issue with each of the plaintiff's allegations. He asserts that the provision requiring discharge after two "pass-overs" exists solely for the benefit of the Army, and does not confer upon military officers a right to discharge. In addition, the Secretary argues that any effect of plaintiff's second non-promotion was nullified by subsequent favorable review by the STAB Board, which had legal authority to reverse the findings of the statutory board. Finally, the Secretary maintains that to the extent that the plaintiff is subject to embarrassment or prejudice by the presence of adverse material in his personnel file, he has failed to exhaust administrative remedies established by statute and Army regulation.
The exchange of legal assertions, however, only begins to render intelligible the novel issues before the Court. In reality, plaintiff complains that he is the victim of a "wrongful promotion," illegally conferred upon him by the Secretary. The implications of the controversy can best be understood in the context of the fact that plaintiff received his college and medical training at government expense in return for a substantial commitment to serve in the U. S. Army. Defendant's Cross Motion for Summary Judgment, July 12, 1979, Ex. A at 38-39, 96 (hereinafter "Exhibit A"). He had only just begun to fulfill that obligation when he filed the instant action, accusing the Secretary of "contriving" to keep him in the Army in violation of law.
The resolution of this case turns fundamentally upon plaintiff's rights and the defendant's duties under 10 U.S.C. § 3303(d).
The parties' statements of material facts filed pursuant to Local Rule 1-9(h) make plain that there are no genuine issues of material fact as to any of the issues raised by the cross-motions for summary judgment. The Court holds that the undisputed material facts warrant the entry of summary judgment for the defendant. The following findings of fact and conclusions of law support that holding.
1. The Plaintiff, Major Phillip E. Hadley, graduated from Florida State University in 1970. While attending college, plaintiff participated in the Army ROTC Program, and upon graduation, he was commissioned a Second Lieutenant, Medical Service Corps.
3. Plaintiff received an M.D. degree from the University of Florida in 1974.
4. During his last year of medical school, plaintiff applied for and was accepted for further military-sponsored professional training in the Army Internship Program to enable him to specialize in obstetrics and gynecology.
5. Upon graduation, plaintiff was assigned for his training to the Walter Reed Army Medical Center, Washington, D.C., where he served as an intern from June, 1974, until June, 1975.
6. By letter of December 3, 1974, plaintiff acknowledged his selection for residency training in obstetrics and gynecology. He participated in the residency program from June 24, 1975, to June 23, 1978.
7. During this period, plaintiff received four annual Officer Efficiency Reports (OER's): The first, covering his intern year, was for the period from July, 1974, to June, 1975; The second, covering the first year of residency, was for the period June, 1975, to June, 1976; The third, covering his second year of residency, was for the period June, 1976, to June, 1977; ...