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February 17, 1983

ROBERT P. MOORE, Plaintiff
JOHN O. MARSH, JR., et al., Defendants

The opinion of the court was delivered by: GREEN

This action is before the Court on defendants' motion for a judgment of affirmance pursuant to Rule 7(b)(1) of the Federal Rules of Civil Procedure and plaintiff's motion for summary judgment. For the reasons stated below, the Court grants defendants' motion and denies plaintiff's motion.



 The plaintiff is a major in the Army who challenges here a decision of the Army Board for Correction of Military Records (the Board) dated December 16, 1981. That decision denied Major Moore's application for removal of an administrative punishment received under Article 15 of the Uniform Code of Military Justice, codified at 10 U.S.C. § 815.

 The Article 15 punishment arose from Major Moore's request for reimbursement of commercial airline and taxi expenses incurred while shipping his personal automobile to the United States from Germany.

 Major Moore has been an officer in the United States Army since 1964. Administrative Record (A.R.), Volume 1, at 3. From February 1973 until July 1977, he served in West Germany as Executive Officer of the 1st Aviation Department, United States Army Element, Headquarters, United States European Command. Major Moore flew helicopter missions and supervised administrative and logistical activities of his unit. In the commander's absence, Major Moore assumed command responsibility for the unit. A.R. 2, at 55.

 On June 12, 1977, Major Moore drove his car to the port of Bremerhaven in order to ship it home. He arrived in Bremerhaven at 8:00 p.m. Since he was scheduled to fly a mission at 5:00 a.m. on June 14, an Air Force T-39 plane was to pick him up in Bremerhaven at 11:00 a.m. on June 13. However, Major Moore cancelled that flight because of delays at the port. Major Moore took a commercial flight to Stuttgart later in the day on June 13 in order to arrive in time to fly the mission on June 14. A.R. 3, at 106-07.

 On arrival, Major Moore learned his commander had cancelled him for the mission. After consulting the finance officer, Mrs. Jeanette Taasevigen, he submitted a request for reimbursement of the return travel expenses, and received payment. Plaintiff's commanding officer initiated an investigation concerning the propriety of the claim for reimbursement. Id.; A.R. 3, at 16-17, 47.

 In July 1977, Major Moore returned to the United States on assignment to the United States Army Material Development and Readiness Command (DARCOM). After receiving a letter from the 11th Aviation Group stating that the claim was not mission related, Major Moore repaid the claim immediately. A.R. 3, at 108. The Commanding General of DARCOM found subsequently that Major Moore had knowingly presented a false claim to the government for $167.77 on June 14, 1977 and thus stole that amount, in violation of Articles 132 and 121 of the Uniform Code of Military Justice, 10 U.S.C. §§ 921, 932. As punishment, Major Moore forfeited $200 of pay for two months. A.R. 2, at 129 (substituted copy filed January 10, 1983).

 Major Moore had submitted complaints about the flight capabilities of his commander in Germany. In August 1978, the Board recommended that an adverse officer efficiency rating (OER) from his commander in Germany be removed from personnel records because of possible bias. A.R. 1, at 47, 51. The Army removed the OER promptly. The Board, however, rejected each of plaintiff's four requests for removal of the Article 15. See A.R. 1, at 4, 6, 11, and 14. It should be noted that the Commanding General of DARCOM imposed plaintiff's Article 15, not plaintiff's commander in Germany.

 The last request was submitted in October 1981. It contained the report of a polygraph examination arranged by Major Moore and administered in May 1981. The five questions tested concerned the sincerity of Major Moore's belief that Mrs. Taasevigen, the finance officer at Echterdingen, processed travel claims liberally. A.R. 3, at 100.

 The Board denied the most recent request in December 1981. In discussing the polygraph examination, the Board observed,

Although the statement made by the polygraph examiner tends to show that the applicant was truthful about his actions in filing the travel voucher in June 1977, it does not conclusively establish that the voucher was submitted in good faith.

 A.R. 1, at 3.

 The Board noted that the polygraph examination was arranged and paid for by the applicant. In concluding its brief discussion, the Board stated "there is insufficient justification for granting the relief requested." It determined that the applicant had failed to "submit sufficient relevant evidence to demonstrate the existence ...

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