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KREIS v. SECRETARY OF THE AIR FORCE

November 19, 1986

John F. Kreis, Plaintiff
v.
Secretary Of the Air Force, Defendant



The opinion of the court was delivered by: REVERCOMB

 This matter is before the Court upon consideration of the defendant's motion to dismiss and the plaintiff's opposition thereto. Oral argument was held October 22, 1986.

 Plaintiff is an officer on active duty in the United States Air Force holding the rank of major. He was trained in and has experience in the security police field.

 In April 1979, based on findings of an Air Force Inspector General investigation, plaintiff was relieved of his assignment to Headquarters Pacific Air Force (PACAF) Security Police. Additionally, plaintiff was given a written reprimand and received an Officer Effectiveness Report (OER) which was down-graded to reflect a low evaluation of potential and which contained negative comments. The reprimand was placed in an official Unfavorable Information File (IUF).

 In early May, 1979 plaintiff received a change in assignment to a squadron operations position with less responsibility. This was identical to a position held by plaintiff years earlier when he was a captain. Also in May, 1979 plaintiff met with his commanding officer to discuss the written reprimand. At the conclusion of that meeting the commanding officer agreed to terminate the UIF. In July, 1980, a Correction Board panel, after reviewing previously unavailable testimony, unanimously determined that the "evidence . . . presented creates sufficient doubt in our minds that the contested report is an accurate reflection of [plaintiff's] duty performance." Consequently the Board recommended the entire report be voided and the Assistant Secretary of the Air Force accepted the recommendation and ordered the report removed from the plaintiff's record. Inserted in its place was AF Form 77 dated July 17, 1980 stating the OER had been removed by the Secretary of the Air Force.

 On July 21, 1980 a selection board convened and considered plaintiff for promotion to lieutenant colonel. Plaintiff was not selected. Plaintiff contended, that since there were only four days (two of which were weekend days) between the removal of the negative OER and the convening of the selection board, it was unlikely that the selection board had received the correction in time.

 In May, 1981, plaintiff submitted an application to the Correction Board maintaining that the void created by his removed OER and the negative effects of A.F. Form 77 combined with his erroneous punitive 1979 assignment had prejudiced his opportunity for promotion. In October, 1981, the Correction Board denied plaintiff's application. Subsequently, plaintiff twice sought reconsideration of the Board's decision, during which time he was twice passed over for promotion. On January 10, 1986, the Board decided plaintiff's second request for reconsideration. The Board held the rater's portion of the 1979 OER, with the indorser's portion left blank, should be reinstated in plaintiff's record and the record so changed should be referred for promotion consideration by special selection boards for 1980, 1981, 1982, 1983, 1984, and 1985. Those special selection boards met in July, 1986 and each and all of them denied plaintiff promotion to lieutenant colonel. This action was filed in April, 1985 after denial of plaintiff's first request for reconsideration.

 Defendant contends in its motion to dismiss that this Court lacks jurisdiction to determine liability or grant relief in this matter arguing that military promotions are nonjusticiable. Plaintiff argues, in his opposition, that while he recognizes the general rule that courts should defer to the military on matters typically committed to military discretion, he is only asking the Court to determine whether his record before the selection boards was complete and not misleading as to his qualifications for promotions and whether the selection boards considered him for promotion on a "fair and equitable basis."

 In Gilligan v. Morgan, 413 U.S. 1, 37 L. Ed. 2d 407, 93 S. Ct. 2440 (1973) the Supreme Court addressed the issue of the reviewability of military decisions. In Gilligan, the plaintiffs, students at Kent State University requested that a federal district court monitor and regulate the future conduct of the National Guard to prevent a recurrence of the shootings there, when it was alleged The National Guard used unnecessary deadly force to quell student disorder. In refusing to consider the merits of the case the Court reasoned that continuing judicial supervision of military actions violated the separation-of-powers principle of the Constitution.

 Chief Justice Burger wrote:

 
It is difficult to conceive of an area of governmental activities in which the Courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control by the Legislative Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is this power of oversight and control of military force by elected representatives and officials which underlies our entire constitutional system. . . .

 413 U.S. at 10-11.

 Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) unlike Gilligan yet like the instant case concerned reviewability of military personnel decisions. In Mindes, the gravamen of the plaintiff's complaint was predicated on separation from active military duty (as opposed to failure to promote) based on a factually erroneous officer effectiveness report.

 Though Mindes emanates from the Fifth Circuit it has been cited with approval by the Courts in this Circuit. Dilley v. Alexander 195 U.S. App. D.C. 332, 603 F.2d 914, 920 (D.C. Cir. 1979), *fn1" ...


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