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Sharps v. Honorable Pete Green

June 7, 2007

LEWIS SHARPS, M.D. PERSONAL REPRESENTATIVE OF THE ESTATE OF ) FRANK SHARPS, M.D., PLAINTIFF,
v.
THE HONORABLE PETE GREEN ACTING SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Plaintiff Frank Sharps, M.D.,*fn1 entered the U.S. Army as a first lieutenant in the Medical Corps in June 1939. His Commander at Fort Gordon, Georgia, recommended him for promotion to the rank of captain on July 9, 1942. Dr. Sharps left Fort Gordon on July 10, 1942, to undergo airborne training at Fort Benning, Georgia. On that same day, the promotion recommendation was forwarded to the 4th Corps Area Commander in Atlanta, Georgia. On October 30, 1942, the promotion was approved by Headquarters, Army Ground Forces in Washington, D.C., and sent to The Adjutant General's Office ("TAGO"). In the meantime, Dr. Sharps was transferred to the 503rd Parachute Infantry Regiment ("PIR") on October 9, 1942, and deployed with the 503rd to the Pacific Theater of Operations. The promotion never came through and Dr. Sharps was honorably discharged in 1945 as a first lieutenant. He has five times applied to the Army Board for Correction of Military Records ("ABCMR"), which has denied his attempts to achieve a captain's rank. Dr. Sharps now sues ABCMR under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2), asserting that its denials have been arbitrary and capricious. Having reviewed the record carefully, the Court cannot agree and will grant ABCMR's motion for summary judgment.

I. BACKGROUND FACTS

Without doubt, the commanding officer of the Headquarters, Station Hospital Fort Gordon, Georgia, submitted a recommendation on July 9, 1942, that First Lieutenant Sharps be promoted to captain. Without doubt, this recommendation was forwarded the following day to the next superior in the chain of command in Atlanta, Georgia. Without doubt, Dr. Sharps left Fort Gordon on July 10, 1942, and went to Fort Benning, Georgia, for airborne training. Without doubt, Dr. Sharps was transferred to the 503rd PIR at Fort Bragg, North Carolina, on October 9, 1942, and deployed with the 503rd to the Pacific Theater on October 20, 1942. Without doubt, the promotion recommendation was approved by the Headquarters, Army Ground Forces, Washington, D.C., and dispatched to TAGO. And without doubt, TAGO forwarded the recommendation on November 3, 1942, to the commanding officer of the 503rd PIR with the notation: "Attention is invited to the first endorsement and subsequent endorsements. By Order of the Secretary of War: /s/ Adjutant General."

The parties dispute whether the commanding officer of the 503rd, Colonel Kenneth Kinsler, received the full recommendation package.*fn2 They agree, however, that eventually Col.

Kinsler responded to a tracer that he would not recommend Dr. Sharps for promotion, and the Sixth Army closed the action without further action. See Pl.'s Facts at 11.

According to Defendant, the "War Department Circular in effect at that time provided that no promotion was effective until approved by all commanders in the chain of command, favorably acted upon by the major commander who had the authority to promote, and approved" by TAGO. Def.'s Mem. at 2. The referenced Circular, Circular 161, provided, inter alia:

* Recommendations for promotions of officers to grades lower than colonel and lieutenant colonel could be forwarded directly to The Adjutant General by the Commanding General, Army Ground Forces; Corps area commanders; Theater commanders, and others as specified. Id. ¶ 1c.

* Recommendations for promotion were limited to existing position vacancies; recommendations for promotion to grades for which no authorized position vacancies existed could not be forwarded. Id. ¶ 2a.

* The sole criterion for promotion was "demonstrated fitness and capacity for the duties and responsibilities of the next higher grade for which a position vacancy exist[ed]." Id. ¶ 6a.

* "Recommendations for promotion and approval of recommendations from subordinate commanders [were] functions of command which [could not] be delegated to a staff officer." Id. ¶ 7.

* Each recommendation for promotion was required to conform to the requirements of Circular 161 and to "pass through the normal channels of command." Id. ¶ 9a. See also II 2 ("The commanding generals of the Army Ground Forces, Services of Supply, Army Air Forces, theater commanders . . . will make recommendations through prescribed channels for promotion of officers under their respective jurisdiction[s].").

* Each recommendation was required to contain a statement that filling the new position would "not exceed the total number of authorized grades in that arm or service" under a superior officer's jurisdiction. Id. ¶ 9b4.

Dr. Sharps twice requested transfer from the 503rd PIR. His second request was approved by Col. Kinsler on October 21, 1943. Def.'s Facts ...


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