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ALLEN v. CARD

July 28, 1992

JON D. ALLEN, et al., Plaintiffs,
v.
ANDREW H. CARD, JR., Secretary of Transportation, Defendant.



The opinion of the court was delivered by: THOMAS A. FLANNERY

 Background

 Plaintiff Allen is on active duty with the U.S. Coast Guard. He was passed over for promotion in 1989 and 1990. On October 26, 1990, Allen filed a complaint with the Coast Guard Board for the Correction of Military Records ("BCMR"). While an officer passed over for promotion twice is subject to discharge, *fn1" the Coast Guard has agreed to allow the plaintiff to continue active duty until June 30, 1993.

 Plaintiff George Detweiler is also on active duty with the Coast Guard. He was passed over for promotion in 1990. He filed a complaint with the BCMR on February 19, 1991.

 Before the BCMR, plaintiff Allen contested evaluations of his performance, Officer Efficiency Reports ("OER"), which he received in 1984 and 1985 and sought to have his passovers expunged. Allen claims that the OER's were factually inaccurate and were the result of prejudice. Allen asserts that the officers that rated him were not stationed at the same facility that he was and, therefore, had an insufficient basis on which to rate him. Allen submitted to the BCMR a statement by a superior officer of his who did not participate in preparing the OER's, but who Allen states was in a far better position to observe Allen's work. This officer, Burgess, gives Allen a better evaluation than that reflected in the OER's. Allen also claims that the OER's were inconsistent with the favorable comments he had received from other officers and his consistent record of achievement in the Coast Guard. The unfairly low OER's, Allen asserts, were simply the result of a personality conflict between him and his evaluating officer.

 On November 22, 1991, the BCMR issued its decision denying Allen relief, holding that his request for relief was not filed in a timely manner, pursuant to 10 U.S.C. § 1552(b). Further, the BCMR ruled that the Soldiers and Sailors Civil Relief Act of 1940 ("SSCRA"), 50 U.S.C. App. § 525, did toll the BCMR statutory filing time. Nor did the BCMR find that Allen had demonstrated sufficient reason for it to waive the applicable time period. Finally, the BCMR ruled that plaintiff Allen's claim was barred by the equitable doctrine of laches.

 Before the BCMR, plaintiff Detweiler likewise challenged OER's that he had received between 1982 and 1985 and requested the BCMR to void his passover for promotion. Detweiler asserts that he had received consistent high ratings until a new commanding officer evaluated him via the OER's he now challenges. Detweiler claims that the new commanding officer disapproved of the previous commanding officer and inappropriately reflected this by criticizing Detweiler, who had worked under the old commanding officer. Detweiler's OER also makes reference to his personal appearance, a subject he deems an inappropriate basis on which to be evaluated. On February 14, 1992, the BCMR ruled against Detweiler for each of the same reasons that it rejected plaintiff Allen's claim, except that it did not rely on laches in Detweiler's case.

 Each plaintiff had submitted evidence in support of his claim before the BCMR; the Coast Guard had argued against the claims on their merits, but, relying on the fact that the claims were not filed in a timely manner, had submitted no evidence to refute the plaintiffs' evidence on the merits. Because the BCMR rejected the claims as untimely, it never addressed the claims on their merits.

 Standard of Review

 The decision of the BCMR should be affirmed unless found to be arbitrary and capricious, contrary to law, or not supported by substantial evidence. Chappell v. Wallace, 462 U.S. 296, 303, 76 L. Ed. 2d 586, 103 S. Ct. 2362 (1983).

 Arguments

 Title 10 U.S.C. § 1552(b) governs the time frame for filing with the BCMR:

 Thus, the statute sets forth a three-year statute of limitations, which can be waived by the BCMR when it is in the interest of justice to do so.

 Tolling of Three-Year Period:

 The plaintiffs argue that the three-year time period is tolled by the SSCRA, which states that periods of active military service:

 shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, . . . or other agency of government ...


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