Rehearing En Banc Denied May 30, 1975.
The primary question before us in this military pay case is whether the failure of the Air Force Board for the Correction of Military Records (AFBCMR) to remove promotion pass overs from plaintiff's record was arbitrary and capricious.
As to the primary issue, we hold the action of the AFBCMR to have been arbitrary and capricious. Secondly, we hold the Air Force Accounting and Finance Center to have been correct in offsetting civilian earnings from plaintiff's award of back pay.
Plaintiff enlisted in the Air Force on October 9, 1954, and was appointed a Second Lieutenant on April 20, 1960. On April 20, 1964, plaintiff's automobile was involved in a head-on collision in which he suffered physical injury. Due to this injury, he was discharged from the Air Force on March 31, 1965 with severance pay in the grade of Captain.
Prior to plaintiff's reinstatement, the Assistant Secretary of Defense directed the Assistant Secretaries of the military departments
On December 7, 1970, just four months after his reinstatement, plaintiff was considered by a Selection Board for promotion to the grade of Major, but was not selected. At that time, there was only one Officer Effectiveness Report (OER) concerning plaintiff's performance at the grade of Captain in his selection folder, and no adequate explanation of the 1965-1970 gap in his career. Fearful that his pass over would prevent him from being promoted in the future, plaintiff again appealed for relief to the AFBCMR. Again the AFBCMR found in plaintiff's favor. In voiding the December 7 pass over, the AFBCMR stated:
On August 23, 1971, the Assistant Secretary of the Air Force issued a directive to remove the pass over from plaintiff's file. The pass over was thus voided, but without an adequate explanation of the 5-year gap in plaintiff's selection folder, even though the AFBCMR knew his name would again be placed before a Selection Board in November, 1971.
Plaintiff subsequently was evaluated by the Selection Board on November 8, 1971. This Selection Board had access to only three OERs on plaintiff relating to his performance in the grade of Captain. (August 1, 1970 until October 8, 1971). In each of these OERs, plaintiff received an overall rating of "Exceptionally Fine." Again plaintiff was not selected for promotion; and again, on June 12, 1972, plaintiff appealed to the AFBCMR. On August 21, 1972, plaintiff once more was considered by a Selection Board for promotion to the grade of Major; but once again, he was passed over. On May 7, 1973, plaintiff amended his June 12, 1972 appeal to the AFBCMR to include this new pass over.
Having now been officially passed over twice by Selection Boards, plaintiff was required by law to be honorably discharged as an officer from the Air Force.
Plaintiff's appeal for relief to the AFBCMR asserted in essence that he was not afforded a complete remedy in 1971 when his December 7, 1970 pass over was voided. He maintained that this lack of remedial action directly contributed to his subsequent pass overs in 1971 and 1972 and consequent discharge on April 30, 1973. On August 10, 1973, three months after plaintiff had been discharged as an officer and after a formal hearing had been conducted, the AFBCMR recommended that plaintiff's application for relief be denied. In reaching its conclusion, the AFBCMR found the failure of the Selection Boards to be adequately briefed or advised of the reasons for the voiding of plaintiff's December 7, 1970 pass over irrelevant. In addition, the AFBCMR gave little consideration to the gap in OERs in plaintiff's selection folder for the period 1965-1970.
More importantly, it is difficult to find in the opinion of the AFBCMR how much weight, if indeed any weight, was placed on the fact virtually all plaintiff's military problems stemmed from an original injustice committed by the Air Force itself.
Rather, the AFBCMR found that plaintiff's record of performance "speaks for itself" and does not "place him in a category that one would describe as quote `selective material' unquote." On August 21, 1973, the Assistant Secretary of the Air Force adopted this recommendation and directed that plaintiff's application for relief be denied.
On November 20, 1973, plaintiff, claiming jurisdiction under 28 U.S.C. § 1491, brought suit in this court to recover and receive (1) back pay and allowances and other relief for his allegedly improper discharge in 1973 and (2) $26,336.67 for the alleged wrongful offset from his back pay and allowances award in 1970. For the reasons stated below, we hold for plaintiff on the discharge issue (while denying his request for promotion), and for defendant with regard to the offset of civilian pay.
I. The 1973 Discharge Issue
Plaintiff argues that the action of the AFBCMR in denying his request for relief
Although this is a close case, on the facts presented in these cross-motions for summary judgment we agree that the AFBCMR's denial was arbitrary and capricious. By defendant's own admissions, plaintiff had been, on two separate occasions, the victim of injustices caused by the Air Force: first, when plaintiff was erroneously discharged in 1965; and second, when plaintiff's name was put before a Selection Board a mere four months after returning to active duty. What is not admitted, but is clear from the record, is that plaintiff continued to suffer from these two injustices because inadequate corrective action was taken to prevent recurring problems arising from the original error of the Air Force.
The primary factor which persuades us in plaintiff's favor is the failure of the Air Force at any time completely to correct the injustice caused by plaintiff's illegal discharge in 1965. The Air Force failed either to place an adequate explanation in plaintiff's record of the 5-year gap in OERs (which was admittedly caused by Air Force error) or to withhold plaintiff's name from submission to Selection Boards until sufficient time had elapsed for plaintiff to accumulate OERs. This failure prolonged the effect of the injustice until it ultimately led to plaintiff's 1973 discharge.
In essence, plaintiff's problems, since his 1970 reinstatement, stem mainly from his erroneous discharge in 1965. The AFBCMR, itself, when granting plaintiff's request in 1971 to void his December 7, 1970 pass over, envisioned the need for one or both of the above corrective measures when it stated, "[plaintiff's] consideration [for promotion] was unjust because of the long period (more than 5 years) in which, through no fault of his, he received no OERs."
We believe it would have been virtually impossible for any Selection Board to give proper consideration to plaintiff unless it had access to an adequate explanation of the 5-year gap caused by the Air Force or, in the alternative, sufficient time had elapsed for OERs to accumulate on which it could have made an informed judgment. Yet the AFBCMR, while recognizing the overall problem, merely voided plaintiff's December 7, 1970 pass over. The failure of the AFBCMR to take either additional step rendered its decision only a partial correction. And in this case, a partial correction was no correction at all.
Defendant argues that any injustice suffered by plaintiff was corrected when his December 7, 1970 pass over was voided. Defendant points out that plaintiff was granted the specific relief he requested, i. e., the removal of the pass over from his selection folder. While this characterization of plaintiff's request may be technically correct, we believe defendant, just as the AFBCMR, misses the true intent of plaintiff's appeal. While plaintiff may have only requested the December 7, 1970 pass over be removed from his selection folder, his implicit request was to have this obstacle removed so that he might be fairly considered for future promotion. And this obstacle could only be removed effectively if corrective action were taken with respect to the 5-year void in OERs caused by his illegal discharge in 1965. Thus, the removal of his December 7, 1970 pass over merely stayed, but did not correct, the injustice which, at least in part, caused the pass over. This removal was in itself an additional injustice for it not only failed to eliminate the cause of plaintiff's complaint, but virtually insured continuation of the same problem.
Had the Air Force either put in plaintiff's files an adequate explanation that his 5-year gap in OERs had been caused by an injustice committed by the Air Force itself, or delay plaintiff's evaluation
Here it is evident that plaintiff's record, through no fault of his own, was not complete.
The AFBCMR has the power, and the duty, to remove injustices and correct errors in servicemen's records. 10 U.S.C. § 1552 (1970) states:
In this case, it is clear that the AFBCMR in 1971 only partially corrected and in 1973 totally failed to correct the injustice done to plaintiff. As this court has said before and reaffirms today, when a correction board fails to correct an injustice clearly presented in the record before it, it is acting in violation of its mandate. And such a violation, contrary to the evidence, is arbitrary and capricious. See Skaradowski v. United States, 471 F.2d 627, 200 Ct.Cl. 488 (1973); Duhon v. United States, 461 F.2d 1278, 198 Ct.Cl. 564 (1972).
In Skaradowski, supra, we emphatically stated:
The same rationale applies in the present case.
Military correction boards "have an abiding moral sanction to determine, insofar as possible, the true nature of an
Thus, the abortive actions of two AFBCMRs did not succeed in removing an injustice, but rather in perpetuating one.
It follows that plaintiff, having been passed over twice by the invalid decisions of Selection Boards, was illegally discharged. Consequently, he is entitled to recover, but his recovery is limited to relief at the grade at which he was discharged. Public Law 92-415
If we were merely to award back pay and allowances at the grade of Captain from the date of illegal discharge, plaintiff would not be made whole. But we are empowered to do more and choose to exercise this power. We therefore order the Secretary of the Air Force to remove from plaintiff's selection folder and from any other pertinent military records (1) plaintiff's November 8, 1971 pass over; (2) plaintiff's August 21, 1972 pass over; (3) plaintiff's April 30, 1973 discharge as an officer; and (4) plaintiff's May 1, 1973 enlistment. We direct the Secretary to reinstate plaintiff to the grade of Captain, effective April 30, 1973. And we further direct the Secretary to place in plaintiff's selection folder an adequate explanation of the 5-year gap from 1965-1970 and the 1973-1975 gap, making it clear that these gaps were not caused by any fault on the part of plaintiff. We urge the Secretary to consider the scheduling of possible future evaluations of plaintiff by Selection Boards consistent with the spirit reflected above.
A court-ordered promotion to the grade of Major has also been requested by plaintiff. This we reject. Courts generally are not in the "promotion business." Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953); Brenner v. United States, 202 Ct.Cl. 678 (1973), cert. denied, 419 U.S. 831, 95 S.Ct. 54, 42 L.Ed.2d 56 (1974); Muldonian v. United States, 432 F.2d 443, 193 Ct.Cl. 99 (1970); Clinton v. United States, 423 F.2d 1367, 191 Ct.Cl. 604 (1970). In the present case, we cannot say that, even if the Selection Boards had been given a complete record, plaintiff would necessarily or even probably have been promoted. We can only say that plaintiff should not have been discharged.
To summarize, we hold the action of the AFBCMR in denying plaintiff's request for relief to have been arbitrary and capricious. We therefore award
II. The Offset Issue
In addition to relief from his forced discharge in 1973, plaintiff also seeks recovery of $26,336.67, the amount of civilian earnings offset when he was reinstated for the period from April 1, 1965 to July 5, 1970. Plaintiff alleges this deduction was erroneous since Air Force Regulation 31-3, effective October 1970, which authorizes the offsetting of civilian earnings was not in force and effect at the time the active duty pay accrued, nor was it in force and effect when the Air Force Accounting and Finance Center computed plaintiff's back pay and allowances. In support of this claim, plaintiff relies on our holding in Bates v. United States, 453 F.2d 1382, 197 Ct.Cl. 35 (1972).
In Bates, plaintiff sued to recover his civilian pay for the period June 17, 1968 to April 14, 1969. Bates' record was corrected on September 25, 1970, prior to revision of Air Force Regulation 31-3 permitting the offset of civilian earnings from back pay found due. This court disallowed the civilian pay offset in Bates. However, in reaching its decision, the Bates court was informed neither by plaintiff nor defendant of the March 12, 1969 directive issued by the Assistant Secretary of Defense
We, therefore, hold that plaintiff's claim in re the offset issue has no merit.
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As to the 1973 discharge issue, plaintiff's motion for summary judgment is granted in part and denied in part, and defendant's cross-motion is granted in part and denied in part. Accordingly, plaintiff is entitled to recover, in part, on his claim, and judgment is entered to that effect with the amount of recovery to be determined pursuant to our Rule 131(c). The Secretary of the Air Force is ordered to reinstate plaintiff to the grade of Captain, effective April 30, 1973, and to correct plaintiff's applicable records consistent with this opinion, pursuant to Rule 147(c) of the Rules of this court.
As to the offset issue, defendant's motion for summary judgment is granted and plaintiff's cross-motion is denied, with the petition, as to this issue, dismissed.