The opinion of the court was delivered by: PENN
This case comes before the Court on defendant's motion to dismiss, or in the alternative, for summary judgment.
The Court heard arguments on November 14, 1979, and requested the parties to file additional memoranda on certain questions posed by the Court during oral argument.
The undisputed facts are as follows: The plaintiff is a regular member of the United States Naval Dental Corps and had been promoted to each rank upon his first eligibility until 1974. In that year, the plaintiff, who was then a commander, was eligible for consideration for promotion to captain. The Dental Corps Promotion Selection Board (Board) failed to select plaintiff in 1974, and in 1975 he applied to the Board for Correction of Naval Records (BCNR) for relief. That Board approved in part and denied in part the relief requested by the plaintiff. Plaintiff's record was corrected to delete from his personnel file four fitness reports, which apparently were somewhat derogatory in nature, and any material indicating that he had been passed over for promotion by the 1974 Board.
The plaintiff thereafter appeared before Boards considering promotions for 1976, 1977 and 1978 and on each occasion was passed over for selection. Those Boards were convened under the authority of the defendant, and prior to the convening of those Boards, the Chief of Naval Personnel distributed a document entitled "Officer Requirements for Promotion and Administrative Selection Boards" which had attached as an enclosure, a document entitled "General Board Information" (the entire document together with its enclosure is hereinafter referred to as the "Requirements") which provided in part that:
Officers having been nonselected one or more times for promotion to any grade are not eligible to serve as members on Promotion Selection Boards.
The effect of the above Requirements was to direct that only "due course" officers, i. e., those Never having been passed over, are eligible to sit on the Boards.
Plaintiff again applied to the BCNR for relief seeking a retroactive promotion citing the failure of the Boards for 1976, 1977 and 1978 to consist of only "due course" officers as mandated by the Requirements. The BCNR denied relief holding that so much of the Requirements as referred to "due course" officers was not binding.
Plaintiff argues that the Boards which considered his promotions for 1976, 1977, and 1978 were illegally constituted. Defendant admits that each of those Boards included a president who was a non "due course" officer, but contends that the Requirements are nothing more than guidelines and are not binding on the Navy.
The Chief of Naval Personnel distributed the Requirements throughout the service prior to the convening of each of the Boards for 1976, 1977 and 1978. Similar Requirements have been distributed in years prior to those under consideration here. Indeed, the policy and the practice of using only "due course" officers on Boards dates from "at least as far back as 1964".
The Requirements do not provide that non due course officers may be substituted or that a flag officer
is required to sit as the presiding officer.
The facts presented in this case, taking into consideration the nature of the Requirements, the fact that the Requirements are distributed throughout the service, the fact that they provide for no exception to the use of only due course officers, and the fact that such Requirements had been the policy and practice of the Navy since at least 1964, lead this Court to conclude that the due course Requirement enjoys the status of a rule or regulation. These Requirements also provide that "(nominations) (for membership on the Boards) Must be submitted in accordance with the criteria contained in enclosure (1) (General Board ...