Biddle v. United States

186 Ct. Cl. 87 | Ct. Cl. | 1968

Lead Opinion

Collins, Judge,

delivered the opinion of the court:^*

This military pay case is before us on the merits. The detailed findings of fact which follow the opinion are here summarized only in pertinent part.

From 1952 until relieved on October 19,1959, plaintiff was serving- on active duty as a major in the Women’s Army Corps. Her category, effective November 1, 1956, was “indefinite.”

On May 14, 1959, the Chief of the Career Branch, WAC, recommended to the Department of the Army Active Duty Board (ADB) that plaintiff’s indefinite service agreement be revoked. The grounds asserted for revocation were plaintiff’s mediocre efficiency record and several reprimands for recHess driving and indiscreet behavior in public places. On May 19,1959, the ADB refused to approve the revocation of plaintiff’s agreement.

The Chief of the Career Branch, however, renewed her recommendation to the ADB less than 2 months later on July 8, 1959. In that request it was stated that, from efficiency reports prepared by plaintiff, it appeared either that plaintiff was not competent to evaluate the performance of her subordinates or that good officers were deteriorating under her supervision. On July 16, 1959, the ADB advised that it had again considered plaintiff’s records and that plaintiff’s agreement had been revoked.

Consequently, plaintiff was honorably separated in the grade of major, AUS, on October 19, 1959. On January 14, 1960, she enlisted as a private in the Regular Army and continued to serve in an enlisted capacity until released in August 1964 for retirement as a lieutenant colonel in the Reserves.

Once before (on December 9,1959) her enlistment and once afterwards (on May 14, 1960), plaintiff wrote to the Adjutant General requesting reconsideration of her relief from active duty and reinstatement in her prior rank of major. In her first letter, plaintiff asked that her request be forwarded to the ADB. However, no reply was received to either letter until after the ADB action described below.

On June 8, 1960, the Chief of the Career Branch again requested reconsideration by the ADB of its decision of May 19,1959, that is, its first decision regarding plaintiff. In that decision, it will be remembered, the board had failed to approve the recommendation that plaintiff’s indefinite service agreement be revoked. Nowhere in the request for reconsideration or in the current record is there an explanation of the Career Branch’s reasons for seeking reconsideration of the first ADB action. Furthermore, this request for reconsideration did not mention the second ADB decision (in July 1959), nor the fact that plaintiff had been relieved from active duty, nor that she had enlisted in the Regular Army.

On June 24,1960, the ADB rendered a third decision concerning plaintiff. The board cryptically held that, after reconsideration of plaintiff’s records and with, “a majority of the members concurring [, the ADB] recommends her retention on active duty.”

The Deputy Chief of Staff for Personnel, Headquarters, informed the Adjutant General of this decision on the same day and advised that the ADB had, in effect, held that plaintiff should never have been relieved. Thereafter, on July 20, 1960, the Adjutant General responded to plaintiff’s above-mentioned letters, stating in his reply that the Army had no means by which to effect plaintiff’s reinstatement unless her records were to be changed by the Army Board for Correction of Military Eecords (ABOME) to show that she had not been released. Plaintiff was also informed that the Office of the Deputy Chief of Staff for Personnel would support her appeal to the board.

In proceedings initiated by plaintiff and conducted on September 14, 1960, the ABCME determined that, based on plaintiff’s efficiency reports, the action taken by the ADB on July 16,1959, in revoking plaintiff’s indefinite service agreement was proper. Accordingly, plaintiff’s application for the correction of her records was denied. A second application, filed in 1964, was also denied.

In this action plaintiff seeks to recover an amount equal to the active duty pay of a major with her length of service from the date of her discharge (October 19, 1959) until her retirement (September 1, 1964), less the pay she received as an enlisted person from the date of her enlistment (January 14, 1960) until the date of her retirement. No trial, in the usual sense of the word, has been held in this case. Instead, the evidence consists of numerous exhibits, a majority of them jointly filed, and a stipulation of facts.

Plaintiff asserts that the decision of the ABOME denying her application for the correction of her records was invalid and unauthorized, arbitrary, capricious, and unsupported by the evidence. Plaintiff’s contention is that the second decision of the ADB (rendered less than 60 days after the first) was invalid, since the applicable regulations provide that an officer’s records can be screened by the ADB only once annually. Since, it is argued, the regulations state that the decision of the ADB is final, the ABOME was consequently bound to follow the ADB’s first decision and to correct plaintiff’s record.

The court finds that the decision of the ABOME was erroneous as a matter of law and that plaintiff is entitled to recover, but on a ground different from that asserted by plaintiff.

The relevant portions of AE 135-215,¹ one of two applicable regulations,² are as follows:

b. * * * Officers, other than Obligated Officers, may be relieved from active duty for the following reasons:

‡ $

(4) Failure to meet acceptable standards of efficiency or conduct.

The second regulation, AE 135-173,³ states in pertinent part:

50. General. The records of officers on active duty, less those serving on term category commitments, will be screened annually, at Headquarters, Department of the Army, to determine those officers whose degree of efficiency and manner of performance of duty require relief from active duty or elimination from the service.

a. This screening process will be done 'at Headquarters, Department of the Army, the chiefs of arms and services based on annually prescribed guidance and criteria. The records of those officers recommended for relief from 'active duty will be referred to a board of officers for review and determination; the decision of the board will be final. The cases of those officers recommended for elimination will be processed in accordance with AR 140-175 immediately following their relief from active duty.

* * * ❖ *

51, Action by commanding officers. Commanders at all echelons will submit through channels to The Adjutant General, Department of the Army, Washington 25, D.C., ATTN: AGG-Z, the names of those officers whose manner of performance of duty when compared with their contemporaries indicates a lack of justification for retention on active duty. Suoh submissions may be made at any time and will be accompanied by details of the reasons for recommendation for relief. These recommendations will be processed in accordance with paragraph 50a. [Emphasis supplied.]

It is noted at the outset that the authority of the ABCMR to correct military records is by virtue of 10 IT.S.C. § 1552 ('a) (1964) :

(a) The Secretary of a military department, under procedures established 'by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice. Under procedures prescribed by him, the Secretary of the Treasury may in the same manner correct any military record of the Coast Guard. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.

The statute plainly indicates that, within the bounds set thereby, 'the scope of the ABCMR’s authority is discretionary with the Secretary of the Army. The Secretary “may” correct errors “when he considers it necessary.” Consequently, the Secretary clearly may provide that the ABCMR will not consider applications for correction of records in situations where, in his opinion, the board’s intervention would be improper, duplicative, or otherwise unnecessary. In the instant context, AE 135-173 expressly states that the decisions of the ADB are final.⁴ When, as here, the Secretary has promulgated regulations which unequivocally entitle the decisions of a board other than the ABCME to finality, the ABCME is without authority to alter or review those decisions in any way and is bound by them.⁵ And, of course, under familiar principles the Secretary’s discretion is limited by his own regulations while they remain in force.⁶

The question for decision, therefore, is which of the three determinations by the ADB is entitled to finality. If the action of July 16, 1959 (revoking plaintiff’s indefinite service agreement), was final, the ABCME obviously did not commit error in adhering to that decision. If, however, either the first or the third ruling of the ADB is controlling, the ABCME erred as a matter of law in not complying with the appropriate decision.

Plaintiff does not question the general authority of the ADB to act in such cases as hers. Moreover, she neither argues that the evidence before the ADB was insufficient to authorize her relief from active duty, nor questions the procedural validity of the manner in which the board conducted its proceedings. Instead, plaintiff relies upon the validity of the initial ruling of the board and argues that the decision revoking her agreement was invalid because the board had no authority to reconsider her case within 2 months after its first decision.

We find this contention unpersuasive. It is true that the regulations provide for an annual screening of records under annually prescribed criteria. But the clear import of the regulations was to guarantee that the records of each officer were screened at least annually — not to restrict the Army in releasing inefficient officers. Tbe requirement of a screening each year, instead of, for example, each. 6 months, was undoubtedly a choice based on administrative convenience and a consideration of the number of individual reviews entailed. The stated purpose of the screening is “to determine those officers whose degree of efficiency and manner of performance of duty require relief from active duty or elimination from the service.” The reason for conducting the screenings at headquarters, rather than at a lower level, is stated in one of the regulations:

(1) Records will be screened at the Department of the Army to insure maintenance of uniform standards of qualifications. * * *⁷ [Emphasis supplied.]

Paragraph 51 of Alt 135-173 provides that commanders “at all echelons” may submit recommendations for relief from active duty “at any time.” It is further provided that the recommendations will be processed in accordance with paragraph 50a, that is, at headquarters under the established criteria. There is no indication, however, that such recommendations cannot be acted upon until a year has elapsed since the last screening of the individual’s records.

The Army has an unquestioned interest in the efficiency and capability of its officers. To hold that the Army cannot release from duty for a year those, officers whose abilities deteriorate in the period following the annual screening could adversely influence any operations with which those officers are connected.

From plaintiff’s point of view, there is no clear indication in the regulation that it was promulgated for the additional purpose of preventing undue harassment by commanding officers or otherwise to protect the officers screened. Undoubtedly, however, review by a board at headquarters level will serve to some extent to relieve the screening process of personal bias and prejudice. But the logical consequence of accepting plaintiff’s argument indicates that the regulation does not have the secondary purpose plaintiff assigns to it.

Tbe ADB has general authority to revoke indefinite service agreements such as plaintiff’s.⁸ The obvious motivation 'behind the Army’s interest in general service commitments of indefinite duration is the discretion such commitments allow in retaining or releasing personnel according to the needs of the service 'and the capabilities of the individuals involved. The existence of a contractual agreement for a tour of duty of fixed duration, however, can thwart the separation of an individual who, though not guilty of substantial misconduct warranting discharge, might demonstrate his unsuitability in several minor respects. Therefore, to hold that the ADB cannot review an individual’s records more often than once annually would, in effect, substantially convert indefinite service agreements into agreements for a series of 1-year tours. This result would completely subvert the purposes behind indefinite service agreements and render relatively meaningless the provision in paragraph 51 that officers are to submit recommendations for relief “at any time.” Accordingly, we hold that the regulation’s provision for annual screenings is merely permissive.

It is not clear whether plaintiff is treating the second ADB action as a reconsideration of the first or as a de novo proceeding. The action appeared to be a reconsideration in form. The Career Branch requested that approval be given to the previous request for revocation of plaintiff’s agreement. The board responded by stating that it had “again considered” plaintiff’s records. To the extent that plaintiff’s argument can be construed to say that the ADB was without authority to reconsider a prior decision, plaintiff’s contentions are without merit.

None of the Army officials who have commented upon the ADB’s second decision have suggested that reconsideration per se was improper, nor lias the ABCMR. Nothing in the regulations governing the ADB suggests that reconsideration is unauthorized. In fact, the purpose we found implicit in paragraph 51 of AR 135-178 in the preceding discussion indicates that the regulation actually contemplates reconsideration actions by the ADB.

It is noted that although the ABCMR findings are final, subject to the approval of the Secretary of the Army, that board itself has the apparent authority to reconsider its previous decisions and in fact does so.⁹ The decisions of the ADB, on the other hand, though final, apparently do not even require the Secretary’s approval. To deny an administrative board of last resort the right to reconsider its own prior decisions is unwarranted, in the absence of a controlling statute or regulation to the contrary.¹⁰

Administrative bodies performing judicial or quasi-judicial functions are, as courts, not infallible. The pervasive policy of the law in favor of the most prompt and inexpensive administration of justice compels the conclusion that reconsideration of a judgment is a proper function of such a body. Nothing has been presented by either party to indicate that the ADB should not be deemed to have the authority to reconsider its decisions, and we accordingly find it has such authority.

It is generally recognized, however, that requests for reconsideration will usually be considered only within a short or otherwise reasonable period of time after the initial decision.¹¹ But in this case, no rules have been promulgated by the ADB to govern post-judgment motions or requests. Moreover, the reasons behind not restricting the ADB to only annual screenings indicate that a fixed time limit of any sort upon, reconsideration actions would inhibit the purposes of the regulations. The Army’s interest in the efficiency of its officers is continuous while the officers remain on active duty. In addition, the first decision, as we have in essence decided, did not irrevocably vest rights in the parties, either by entitling plaintiff to a year’s active duty or by obligating the Army to retain her for that period. There is consequently no reason to limit the period in which the ADB could entertain a request for reconsideration. Therefore, the second decision of the ADB, in which it reconsidered and reversed its prior refusal to revoke plaintiff’s agreement, was valid.

The last point to be considered is the effect the third action by the ADB (in June 1960) had upon the prior two. Pursuant to the decision of the ADB in July 1959 plaintiff was relieved from active duty. Although she had enlisted in the Begular Army in January 1960, she was not serving on active duty as an officer at the time any of her requests for reconsideration were made to the Adjutant General, nor at the time the Career Branch again requested reconsideration, nor at the time the third decision was rendered. The commissioner and, apparently, the ABCMR¹² believed consequently that the ADB was without jurisdiction to consider the applications for reconsideration and that the decision of the ADB in June 1960 was a nullity and without legal effect. Although the Government has not briefed this point,¹³ counsel for the defendant expressed a similar view in response to questions during oral argument.

However, underlying a conclusion that the third decision of the ADB was without jurisdiction or was a nullity and advisory only is the assumption that the proceeding in June 1960 was de novo. The ADB would clearly have no legitimate authority on the basis of the regulations to consider db initio the records of someone no longer on active duty as an officer. The facts, however, do not support a conclusion that the proceeding was de novo. On the contrary, it is quite clear that the third proceeding, as was the second, was intended as a reconsideration of the first.

The Chief of the Career Branch specifically requested the ABB to reconsider its May 1959 decision in plaintiff’s case. Although this request was made over a year 'after the Career Branch’s first recommendation of relief, it is unlikely that this action was intended to initiate the annual screening as such. Under paragraph 50 of AN 135-173, the screening would have taken place irrespective of the request had plaintiff still been on active duty as an officer. Consequently, it seems probable that the Career Branch was submitting its request for reconsideration pursuant to the authority in paragraphs 50a and 51 of the regulation.

The ADB, by letter dated June 24, 1960, advised the Career Branch that it had reconsidered plaintiff’s records and recommended her “retention” on active duty. All the evidence before us therefore points to the conclusion that the third ADB proceeding was a reconsideration of the first. Since a proceeding in reconsideration is predicated upon a former decision or judgment, it is not de novo, but is viewed as a continuation of the initial action. It suspends the finality of the initial decision pending a ruling on the request for reconsideration.¹⁴

There is the further question, however, of determining whether a reconsideration of its first decision by the ADB— approximately 13 months after that decision and some 11 months after the second action — was proper.¹⁵ As this court has stated:

* * * [Ujnless there is legislation to the contrary it is the inherent right of every tribunal to reconsider its own decisions within a short 'period after the making of the decision and before an appeal lias been taken or other rights vested. * * *¹⁶ [Emphasis supplied.]

In discussing the first reconsideration action, it will be remembered, we stated that, while an officer remained on duty, the Army had a continuing interest in his efficiency. We accordingly viewed the regulations as authorizing reconsideration actions at any time, since rulings by the ADB retaining the officer on active duty did not irrevocably fix the rights and obligations of the parties.

However, the same considerations do not apply to the third action. Once an officer is ordered relieved, the positions of the parties do become fixed: the officer, from the date of his separation, no longer has the right to continue to serve or to receive remuneration therefor; the Army is no longer obligated to retain the officer or to pay for his services. The interest of the Army in the officer’s continued efficiency terminates, as does the desirability of periodic revaluations or screenings. It would therefore seem that the usual rule requiring reconsideration within a short period after the initial decision should apply. As a result, the time interval between the first and third proceedings might have occasioned an unreasonable prolongation of the initial action.

We are not controlled by this possibility. From all indications, the ABCMB, did. not consider this point.. The defendant did not raise this issue here, nor was it in any position to do so. The third proceeding was initiated by the Career Branch, apparently because it was unaware of the previous ADB action regarding plaintiff and upon the mistaken assumption that plaintiff was still on active duty.¹⁷ The defendant should not now be heard to assert the improper prolongation of the case by proceedings it instigated itself. The Career Branch’s apparent ignorance of the previous ADB proceedings does not change that result. Initiating all three actions, the Career Branch sought the termination of plaintiff’s agreement on the basis of her record. The Career Branch is therefore chargeable with at least a general knowledge of the career of the officer it had determined was unfit, knowledge which a modest amount of diligence in searching plaintiff’s record would have given it. We find that the third ADB action was not invalid because unreasonably out of time.¹⁸

The record does not show whether the ADB considered evidence in addition to the submissions of the Career Branch. In its request, in addition to stating certain general facts about plaintiff, the Career Branch apparently relied only on plaintiff’s efficiency ratings. It will be remembered, though, that plaintiff had asked the Adjutant General in one of her letters to inform the ADB of her request for reconsideration and reinstatement, but there is no indication that this was done. However, the guidelines and criteria prescribed by letter in 1960 by the Secretary of the Army reveal that the ADB was under an obligation to examine records in addition to the efficiency ratings, and not to rely solely on the recommendation of the Career Branch:

4. In a modern peacetime Army the standards for retention on active duty must 'be higher than the standards during periods of emergency or expansion. It is recognized that detailed criteria cannot be established but that the judgment and experience of members of the career branches and the board must be employed to insure that individuals selected for retention are those having the greatest potential. To achieve this aim the following points are submitted as guidance:

■a. The weight to be given derogatory information must be determined by the collective judgment of the 'board. However, greatest weight should be given to the most recent years of service. Undue consideration should not be given to unfavorable comments which appear early in an officer’s career but which are followed by continuous satisfactory performance of duty.

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c. “Adverse matter” that can be considered in personnel actions must be a part of official records. * * * [Emphasis supplied.]

d. In submitting cases for your review and determination as to retention or release from active duty, the chiefs of the arms and services will not brief the board. The review and a determination therefrom is the prerogative of the board based on qualified information in official records. [Emphasis supplied.]

* * % *

6. It cannot be overemphasized that the wide experience and good judgment of the members of the Department of the Army Active Duty Board must be depended upon to insure an effective, vigorous officer corps without jeopardizing the rights of individuals.

The emphasis in the guidelines is upon the exercise of the board members’ experience and judgment to determine from the records whether an individual should be retained or relieved. Although more recent performance is to be given greater weight, the board is entitled to consider an officer’s past record. In substance, then, the ADB is charged with evaluating the likelihood of an officer’s satisfactory future performance in the light of his entire career.

Obviously, the records most helpful in making a determination of an officer’s ability are his efficiency records. But the officer’s general history in the service, with all its ramifications, is necessary and relevant to put the reported efficiency ratings in perspective. The guidelines clearly contemplate this when they speak in terms of “official records,” not just efficiency ratings.

Paragraph 4d quoted above similarly provides that the ADB is not to be briefed by “the chiefs of the arms and services.” Consequently, the board could not accept the information supplied by the Chief of the Career Branch without independently verifying it. It is the prerogative of the ABB alone to review the records to determine an officer’s qualifications.

The board, therefore, must be expected to examine all the pertinent records. Obviously, for the ABB to ignore relevant and important aspects of an officer’s career in making a determination'of fitness would be improper. In the absence of any evidence to the contrary, it must be presumed that the ABB performed its official duties properly.¹⁹ As a result, the court is compelled to conclude that the ABB considered all pertinent records, not just the efficiency ratings.

As the evidence before the ABCMB. indicated,²⁰ plaintiff’s standard 201 file disclosed the fact that plaintiff had been relieved from active duty by virtue of action by the ABB. What was discoverable by the ABCMB by an examination of the records pertaining to plaintiff must also have been discoverable by the ABB. The presumption in favor of the validity of official acts²¹ precludes a finding here that the ABB examined the records in so negligent or cursory a manner that some evidence of the second proceeding was not discovered. We find, therefore, that the ABB examined plaintiff’s records and was aware of its prior action when it ruled in plaintiff’s behalf. Being aware of its second proceeding in the case, the ABB obviously must have considered whether the reversal in that proceeding of its first decision was valid and correct. Since the decision of the board in June 1960 was the result of a valid reconsideration action, that third ruling is entitled to finality. The ABCMB decision was accordingly contrary to law because it failed to adhere to the ABB decision by which it was bound. Plaintiff’s records should have been corrected to show that she had never been relieved from active duty as an officer.

For the above reasons, the court concludes that plaintiff is entitled to recover the pay to which she would have been entitled liad she remained on active duty as a major with her length of service from October 19, 1959, until September 1, 1964, less the pay she received in her enlisted capacity from January 14, 1960, until September 1, 1964. Judgment is entered for plaintiff accordingly, with the amount of recovery reserved for further proceedings pursuant to Buie 47 (c).

* This case was referred to Commissioner W. Ney Evans, to whom the court is indebted for his submission of a memorandum opinion pursuant to Rule 57 (a). Although, with minor modifications and additions, the commissioner’s findings of fact are adopted herein, the court, for the reasons stated in the opinion, does not accept his ultimate determinations of fact or his recommended conclusion of law.

1 Reserve Components—Officer Periods of Service on Active Duty, AR 135-215, para. 7b, Dept. of the Army, May 27, 1955 [hereinafter cited as AR 135-215],

2 Although a copy of AR 135-173 was part of the record before the commissioner, a copy of AR 135-215 was not. Subsequent to oral argument in this case, the court through its Secretary requested the defendant to supply copies of any and all regulations pertaining to the scope, duties, and functions of the ADB. In prompt response to that request, defendant submitted copies of AR 135-215, AR 135-173, and of letters sent on January 27, 1959, and May 13, 1960, to the respective Presidents of the ADB by order of the Secretary of the Army. These letters enumerated the duties of the ADB and the general guidelines and criteria for reviewing records to determine whether officers should be retained or released from active duty. Since neither of the parties has suggested the applicability of any other regulations, It is assumed that all pertinent ones are now before us.

3 Reserve Components — Relief of Officers and Warrant Officers from Active Duty, AR 135-173, paras. 50 and 51, Headquarters, Dept. of the Army, Dec. 5, 1958 [hereinafter cited as AR 135-173].

4 AR 135-215, para. 10c(1), also so provides. The finality attributable to ADB decisions is further emphasized by the following language in both letters sent by order of the Secretary of the Army to the Presidents of the ADB :

“5. The board findings for either retention or relief from active duty are final unless otherwise directed for particular type actions.” See findings Nos. 3 (e) and (d) infra.

5 See Wason v. United States, 179 Ct. Cl. 623 (1967) ; cf. Friedman v. United States, 141 Ct. Cl. 239, 158 F. Supp. 364 (1958).

6 E.g., Hamlin v. United States, 183 Ct. Cl. 137, 391 F. 2d 941 (1968).

7 AR 135-215, para. 10c (1).

8 The letters to the Presidents of the ADB from the Secretary clearly grant such authority (see note 2 supra) :

“3. The Department of the Army Active Duty Board will consider, but will not be limited to, the following types of cases:

*****

“d. Revocation of indefinite service agreements under the previsions of AR 135-173.”

9 See, e.g., Stephens v. United States, 174 Ct. Cl. 365, 370, 358 F. 2d 951, 953 (1966) ; Oleson v. United States, 172 Ct. Cl. 9, 13 (1965) ; finding No. 12 infra.

10 Confederated Tribes of Warm Springs Reservation v. United States, 177 Ct. Cl. 184 (1966) ; Dayley v. United States, 169 Ct. Cl. 305 (1965). See generally 2 Davis, Administrative Law § 18.09 (1958).

11 See Confederated Tribes of Warm Springs Reservation v. United States, 177 Ct. Cl. 184 (1966) ; C. J. Langenfelder & Son, Inc. v. United States, 169 Ct. Cl. 465, 341 F. 2d 600 (1965) ; Dayley v. United States, 169 Ct. Cl. 305, 308-09 (1965) ; 2 Davis, supra note 10.

12 This was the view expressed by the Executive Secretary of the ABCMR in a letter written to plaintiff's counsel on February 2, 1965, which advised that plaintiff’s second application to the ABCMR for correction of her records had been denied. See finding No. 12 infra.

13 Instead of submitting a brief in response to plaintiff's exceptions to the commissioner’s report and accompanying brief, the defendant chose to rely on the presumption of correctness accorded the commissioner’s findings and submitted a statement to that effect pursuant to Rule 62 (b) t

14 See Dayley v. United States, 169 Ct. Cl. 305, 308-09 (1965) ; 2 Davis, supra, note 10.

15 “Whenever a question concerning administrative, or judicial, reconsideration arises, two opposing policies Immediately demand recognition: the desirability of finality, on the one hand, and the public interest in reaching what, ultimately, appears to be the right result on the other [footnote omitted], * * *” CAB v. Delta Air Lines, Inc., 367 U.S. 316, 321 (1961).

16 Dayley v. United States, 169 Ct. Cl. 306, 308 (1965).

17 As stated previously, tlie last request from the Career Branch for reconsideration made no mention of the second proceeding, of plaintiff’s release from active duty, or her enlistment in the Regular Army. There does not appear to be any conceivable reason why the Career Branch would want to have plaintiff relieved when in fact she was no longer on active' duty. This fact, plus the tone and language of the request, compels the conclusion that the Career Branch somehow confused the records, believed plaintiff still to be on active duty, and was unaware of the reconsideration action it had instituted the previous year. See finding No. 6 infra.

18 The regulations established no rules to guide the ADB in entertaining requests for reconsideration. The absence of prescribed standards of review, however, does not necessarily mean that the ADB was arbitrary in changing its prior position. From the evidence, the court has no way of knowing whether the ADB discovered fresh evidence when searching plaintiff’s records. In addition, it is noted that the guidelines were changed somewhat between 1959 and 1960. Compare finding No. 3(c) with finding No. 3(d). Although these changes appear to be essentially procedural in form, they may have resulted from a shift in administrative policy. Either of these grounds could conceivably warrant a reconsideration of a prior decision under typical formulations of the traditional standards for reconsideration or rehearing. Bee, e.g., Rules 68 and 69 of this court.

19 See Holman v. United States, 181 Ct. Cl. 1, 383 F. 2d 411 (1967) ; Harrington v. United States, 161 Ct. Cl. 432 (1963).

20 Findings Nos. 9 (b) and (c) infra.

21 See note 19 supra.

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Concurrence Opinion

Davis, Judge,

concurring in the result:

I join in the judgment on the ground the court rejects. As I understand the Army regulation on relief of reserve officers from active duty for inefficiency (Keserve Components— Eelief of Officers 'and Warrant Officers from Active Duty, Dept, of the Army, AE 135-178, paras. 50, 51, Dec. 5,1958.), it provides for an annual screening instituted by Army headquarters, not for repeated screenings within one year at the instance and option of that headquarters. Para. 50. Commanding officers, on the other hand, can make recommendations for relief at any time within the year if they feel that some specific incident or course of incidents requires elimination before the time of the next annual screening (at headquarters’ instance), and those commanders’ recommendations will be reviewed at once. Para. 51. This division of 'authority makes sense. The reserve officer can rest assured that, if his own commanders are satisfied with his work during the year, he need not fear repeated screenings during that period (on the ground of efficiency) at the instance of the personnel staff in the distant central headquarters which does not have first-hand knowledge of his work and may be intent on pursuing some theoretical personnel goals. But the officer’s own leaders, who are more likely to know of incidents or performance calling for immediate elimination of this particular officer, can still bring those matters to the attention of the final authority for consideration at once. Interpreted in this way the Army’s system for reserve officers is comparable, ■though by no means identical, to the method for dealing with inefficiency in the civil service. In the civilian area' the general performance ratings are usually made once a year, but an employee who has received a satisfactory grade at the last annual rating can still be discharged, before the time for a new rating, for specific acts of incompetence. Angrisani v. United States, 172 Ct. Cl. 439, 444 (1965); DeBusk v. United States, 132 Ct. Cl. 790, 796-97 (1955), cert. denied, 350 U.S. 988 (1956) ; see Chisholm v. United States, 149 Ct. Cl. 8, 13 (1960).

In this case the plaintiff’s annual screening at the instance of Army headquarters — represented by the Career Branch of the Women’s Army Corps — took place on May 19, 1959, and the Active Duty Board declined to approve the revocation of her indefinite service agreement. The later request, on July 8, 1959, to eliminate plaintiff came from the personnel staff at headquarters, the same Career Branch of the WAC, not (so far as the record shows) from any of her own commanders. This request was therefore improper and unauthorized by the governing regulation (as I read that directive) unless it can be deemed a timely application by the Career Branch for reconsideration of the Active Duty Board’s decision on May 19th. Since this request came some seven weeks after the Board’s ruling, I consider it much beyond the “short period” after the making of a decision during which “it is the inherent right of every tribunal to reconsider its own decisions.” Dayley v. United States, 169 Ct. Cl. 305, 308 (1965). To allow as much time as this to elapse before a request for reconsideration is made would be to adopt the position which the court embraces and I reject, i.e. that headquarters can file successive petitions, within one year, to the Active Duty Board.

The result, in my view, is that plaintiff’s relief from active duty in the fall of 1959 was contrary to the regulation and of no effect. I do not have to consider the Active Duty Board’s decision of June 24, 1960, and the proceedings leading up to it, which become relevant only if the Board’s decision of July 16, 1959 (in response to the headquarters’ request of July 8th) is held valid. As for the Correction Board, the plaintiff was required to go there for relief onfy because of the Army’s own errors and misunderstandings. If the Active Duty Board’s decision of May 19, 1959, had been given its proper operation, plaintiff would not have been relieved from duty and would liave bad no occasion to go to tbe Correction Board. That Board’s adverse determination should therefore be given no effect; the Army cannot bootstrap itself by erroneously compelling plaintiff to ask for Correction Board relief which is then denied.^*

Laramore, Judge, joins in the foregoing concurring opinion.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner W. Ney Evans, and the briefs and argument of counsel, makes findings of fact as follows:

1. (a) Plaintiff enlisted in the Women’s Army Auxiliary Corps (WAAC; later WAC) in January 1943 and served on active duty as an enlisted woman from February 26,1943, to May 16, 1943, when she was honorably discharged to accept appointment (May 17,1943) as third officer. On September 1, 1943, she was given a temporary appointment as second lieutenant, AUS, advanced to first lieutenant on December 23, 1943, and to captain on October 5, 1944. She was relieved from active duty (by honorable separation) on November 14, 1949, in the grade of captain.

(b) On November 1,1950, she was recalled to active duty and in 1952 was promoted to major (AUS, temporary, August 6,1952; indefinite, USAS, October 14,1952).¹ Her category, effective November 1, 1956, was “indefinite.”

(c) As a major (WAC, AUS), plaintiff continued in service until relieved from active duty on October 19, 1959, under circumstances hereinafter described. She then enlisted in the Women’s Army Corps on January 14, 1960, and served on active duty as an enlisted woman until her release on August 31, 1964, to retire (effective September 1, 1964) in the grade of lieutenant colonel, after more tlian 20 years of service.

2. (a) On May 14, 1959, the Chief of the Career Branch, WAC, recommended to the Department of the Army Active Duty Board that plaintiff’s indefinite service agreement be revoked, on the ground that plaintiff had a mediocre efficiency record with several reprimands for reckless driving and indiscreet behavior in public places. By action on May 19, 1959, the Active Duty Board declined to approve the revocation of plaintiff’s indefinite service agreement.

(b) On July 8, 1959, the Chief of the Career Branch renewed the recommendation, requesting that approval be given by the Active Duty Board to the revocation of plaintiff’s indefinite service agreement, supporting the request with the advice that, in the light of efficiency reports prepared by plaintiff and subsequently received by her superiors, it appeared that she was not competent to evaluate the performance of her subordinates or that good officers had deteriorated tragically while working under her supervision. On July 16,1959, the Active Duty Board advised the Separation Branch of the Adjutant General’s Office that it had again considered plaintiff’s records and that, with a majority of the members concurring, plaintiff’s indefinite service agreement had been revoked.

(c) On July 20, 1959, plaintiff was notified by order of the Secretary of the Army that she had been selected for relief from duty under the provisions of AB, 135-215 and section XV, Alt135-173.

(d) The foregoing notice further advised plaintiff:

2. The primary consideration in retaining officers on active duty is to maintain maximum effectiveness in meeting military requirements. Your personnel file has been reviewed by the Department of the Army Active Duty Board. The Board determined that, when compared to your contemporaries, your manner of performance, professional qualifications, and experience do not warrant your further retention on active duty.

3. You will be relieved from active duty not later than 90 days after date of your receipt of this notification, under the provisions of Section XV, Alt 135-173 (SPN 704 or 705, as appropriate). Yon may, if you desire, request release at an earlier date. Such release is considered voluntary, however, and would therefore render you ineligible for readjustment pay if you are otherwise qualified.

3. (a) The pertinent provision of AB, 135-215 ² follows:

b. * * * Officers, other than Obligated Officers, may be relieved from active duty for the following reasons: # * * * *

(4) Failure to meet acceptable standards of efficiency or conduct.

(b) The pertinent provision of AB 135-173 ³ follows:

50. General. The records of officers on active duty, less those serving on term category commitments, will be screened annually at Headquarters, Department of the Army, to determine those officers whose degree of efficiency and manner of performance of duty require relief from active duty or elimination from the service.

a. This screening process will be done at Headquarters, Department of the Army, the chiefs of arms and services based on annually prescribed guidance and criteria. The records of those officers recommended for relief from active duty will be referred to a board of officers for review and determination; the decision of the board will be final. * * *

#

51. Action by commanding officers. Commanders at all echelons will submit through channels to The Adjutant General, Department of the Army, Washington 25, D.C., ATTN: AGG-Z, the names of those officers whose manner of performance of duty when compared with their contemporaries indicates a lack of justification for retention on active duty. Such submissions may be made at any time and will be accompanied by details of the reasons for recommendation for relief. These recommendations will be processed in accordance with paragraph 50a.

(c) By letter of January 27, 1959, the President of the Active Duty Board was informed by order of Wilbur M. Brucker, Secretary of the Army, concerning the duties of the board for that year. Included also was a statement of the criteria and guidelines to be used by the board during 1959 in evaluating the records of officers to determine whether they should be retained or relieved from active duty. The pertinent portions of that letter were as follows:

1. AT?. 135-173 requires that the records of Reserve Officers on active duty will be screened annually at Headquarters, Department of the Army by a board of officers to determine those officers whose degree of efficiency and manner of performance of duty warrant relief from active duty. AR. 135-215, as changed, requires selection of a limited number of highly qualified commissioned officers by Headquarters, Department of the A Tiny board action for voluntary retention on active duty beyond the date on which eligibility for retirement is established under Title 10, U.S. Code, Section 3911.

2. The Department of the Army Active Duty Board has been appointed by LO AGPA-0 DA Active Duty Bd (26 Jan 59), this office, 27 January 1959, subject: “Department of the Army Active Duty Board,” to perform these missions in calendar year 1959. To assist the board in performing its missions, the Chief, Officers Assignment Division, Office of The Adjutant General and Chiefs of the Career Branches of the arms and services are appointed as administrative assistants to the board. It is intended that detailed screening of records be accomplished for the board by these officers.

3. The Department of the Army Active Duty Board will consider, but will not be limited to, the following types of cases:

# í¡: sjs

d. Revocation of indefinite service agreements under the provisions of AR 135-173.

ijí ^ #

4. In a modern peacetime Army the standards for retention on active duty must be higher than the standards during periods of emergency or expansion. It is recognized that detailed criteria cannot be established but that the judgment and experience of members of the career branches and the board must be employed to insure that individuals selected for retention are those having the greatest potential. To achieve this aim the following points are submitted as guidance:

a. The weight to be given derogatory information must be determined by the collective judgment of the board. However, greatest weight should be given to the most recent years of service. Undue consideration should not be given to unfavorable comments which appear early in an officer’s career but which are followed by continuous satisfactory performance of duty.

b. The OEI will not be used as a basis for comparison between two individuals.

c. Due consideration should be given to the recommendations of career branch chiefs; however, each case will be considered on its individual merits.

5. The board findings for either retention or relief frorn active duty are final unless otherwise directed for particular type actions.

6. It cannot be overemphasized that the wide experience and good judgment of the members of the Department of the Army Active Duty Board must be depended upon to insure an effective, vigorous officer corps without jeopardizing the rights of individuals.

(d) A similar letter was sent to the President of the Active Duty Board on May 13, 1960, by order of the Secretary of the Army. The 1960 letter was substantially identical to the one sent in 1959, except that the guidelines to be used in screening officers were modified as follows:

4 * * x

a. The weight to be given derogatory information must be determined by the collective judgment of the board. However, greatest weight should be given to the most recent years of service. Undue consideration should not be given to unfavorable comments which appear early in an officer’s career but which are followed by continuous satisfactory performance of duty.

b. The OEI will not be used as a basis for comparison between two individuals.

c. “Adverse matter” that can be considered in personnel actions must be a part of official records. The Board must make sure that all information that is considered about an individual is qualified for such consideration under AB, 640-98.

_ d. In submitting cases for your review and determination as to retention or release from active duty, the chiefs of the arms and services will not brief tbe board. Tlie review and a determination therefrom is the prerogative of the board based on qualified information in official records.

4. Plaintiff was relieved from active duty effective October 19,1959, in the grade of major, AUS, with honorable type of separation.

5. (a) On December 9, 1959, plaintiff wrote to the Adjutant General requesting “Reconsideration of Relief from Active Duty” and that she be “reinstated on extended active duty in * * * [her] prior grade of Major, AUS.”

(b) On January 14, 1960, she enlisted in the Regular Army.

(c) On May 14, 1960, while serving on active duty as an enlisted member, she again wrote to the Adjutant General requesting reinstatement as a major, AUS.

6. (a) On June 8, 1960, the Chief of the Career Branch, WAC, requested reconsideration by the Active Duty Board of its action of May 19,1959, wherein the Active Duty Board did not approve the recommendation of the Chief of the Career Branch that plaintiff’s indefinite service agreement be revoked.

(b) In support of this request for reconsideration the Chief of the Career Branch listed evidences of declining efficiency, lack of progress, and failure to heed admonitions; and attached items from plaintiff’s personnel data.⁴

(c) The foregoing request for reconsideration did not list (1) the action by the Active Duty Board of July 16, 1959 (revoking plaintiff’s indefinite service agreement); (2) plaintiff’s relief from active duty effective October 19, 1959; or (3) plaintiff’s enlistment in the Regular Army on J anuary 14, 1960.

(d) The evidence affords no explanation (1) of the reason for the request by the Chief of the Career Branch, on June 8, 1960, for reconsideration by the Active Duty Board of its action of May 19,1959, or (2) of the purpose to be served by such reconsideration.

7. On June 24, 1960, the Recorder of the Active Duty Board notified the Chief of the Career Branch that the Board had reconsidered the records of plaintiff and, with a majority of the members concurring, “recommends her retention on active duty.”

8. On July 20,1960, the Adjutant General replied to plaintiff’s letters of December 9,1959, and May 14, 1960, stating, in pertinent part:

2. Upon your request, the circumstances surrounding your relief from active duty have been reviewed in the Department of the Army. There are no means by which the Department may reinstate you as a Major on active duty as of the date of your release therefrom on 19 October 1959, unless your records should be changed (upon your application) through action by the Army Board for Correction of Military Records to show that you were not released from active duty on that date. * * *

3. It is emphasized that advising you of your right to request a review by the above mentioned board in no way implies what action will be taken by the Board. Each case is considered in light of the full evidence presented and final determination is based on its individual merits.

4. The Deputy Chief of Staff for Personnel, Headquarters, Department of the Army, desires you be informed that his office will support your appeal to the above board.

9. (a) On August 2,1960, the Army Board for Correction of Military Records received plaintiff’s application for “Reinstatement as a Major on active duty in the Army of the United States.”⁵

(b) In her application plaintiff referred to her letters (1) of September 14,1959,⁶ to the Department of the Army, with eight enclosures, requesting an investigation by the Inspector General, and (2) of December 9, 1959,⁷ to the Adjutant General requesting reconsideration of her relief from active duty. She further stated (i) that she relied on “such information and records [as] may be requested by your board from The Adjutant General,” and (ii) that she had no further evidence to offer “at this time.”

(c) In proceedings conducted on September 14, 1960, the Army Board for Correction of Military Eecords considered plaintiff’s application, the case summary prepared by its staff, and plaintiff’s 201 file and efficiency files. The board entered detailed findings from the case summary, many of which are reflected herein. Of particular note are the following:

f. that following another request for reconsideration of the previous action taken on applicant’s case, the Department of the Army Active Duty Board on 24 June 1960 reconsidered the record and with a majority of the members concurring, recommended applicant’s retention on active duty; that the Deputy Chief of Staff for Personnel advised The Adjutant General on 24 June 1960 to the effect that the Department of the: Army Active Duty Board’s recent action was a ruling in effect that applicant should not have been relieved from active duty as an officer in October 1959; that it was now appropriate to advise the applicant of the Department of the Army Active Duty Board’s decision in order that she might receive all pay and allowances as well as any other credit due her; that, in addition, applicant should be advised of her right to appeal to the Army Board for Correction of Military Eecords to effect a correction of her records to show that she was never relieved from active duty; and

g. that on 20 July 1960 the applicant was advised-that there were no means whereby she might be reinstated as a major on active duty as of the date of her release on 19 October 1959 unless her records should be changed through action by the Correction Board to show she was not relieved from active duty on that date.

(d) The board concluded:

1. That the applicant’s record is replete with evidence attesting to incidents which prompted the necessary entries to be made therein, together with necessary reprimands resulting therefrom by her superiors.

2. That on the basis of applicant’s efficiency reports it would appear that the proper action was taken by the Department of the Army Active Duty Board in revoking applicant’s indefinite service agreement on 16 July 1959.

8. That in consideration of the foregoing findings and conclusions, there is no basis for correcting the applicant’s records as requested.

On the basis of the foregoing conclusions, the board recommended that plaintiff’s application for correction of military records be denied.

(e) On January 3, 1961, the Assistant Secretary of the Army (Manpower, Personnel and Reserve Forces) advised the Adjutant General of his approval of the findings, conclusions, and recommendation of the Army Board for Correction of Military Records and directed that plaintiff’s application for correction of military records “be, and hereby is, denied.”

(f) The Army Board for Correction of Military Records made no findings or conclusions concerning the following-issues : (1) whether the Active Duty Board had jurisdiction to reconsider plaintiff’s case upon the request of the Career Branch on June 8, 1960; (2) whether the action by the Active Duty Board on June 24, 1960, occurred an unreasonably long time after the rulings by that board on May 19, 1959, and July 16,1959.

10. (a) Under date of March 17, 1964, plaintiff filed another application with the Army Board for Correction of Military Records requesting that her records be corrected to show that she “was not released from active duty as a Major in the Army of the United States October 19, 1959.” The application contained requests (1) “that my representative be permitted to submit a brief and other evidence following such time as my record has been made available to him for examination”; and (2) that she be permitted to appear before the board, represented by counsel, although she did not desire to present witnesses.

(b) The brief was subsequently submitted by the attorney who now appears as plaintiff’s attorney of record, and is a part of the record in this case.

11. On August 31,1961, plaintiff was discharged from enlisted status for retirement as an officer, in the grade of lieutenant colonel, USAR, and was, on September 1,1964, transferred to the Retired Reserves.

12. On February 2, 1965, plaintiff’s attorney was advised by the Executive Secretary of the Army Board for Correction of Military Records that inasmuch as there had not been introduced any newly discovered relevant evidence, “there is no basis upon which the Board may recommend to the Secretary of the Army that reconsideration be given the matter.” Plaintiff’s attorney was further advised:

It is not considered that the case cited in your brief [Friedman v. United States, 141 Ct. Cl. 239, 158 F. Supp. 364 (1958)] is comparable to the facts as presented in Juanita F. Biddle’s case, as it is noted a Department of the Army Active Duty Board, with a majority of the members concurring, recommended revocation of her indefinite service agreement while she was still on active duty. It followed that she was relieved from active duty in the grade of major, effective 19 October 1959. While the records show that a Department of the Army Active Duty Board later recommended her retention on active duty, such board was convened following her relief from active duty and was merely advisory in nature.

13. (a) Plaintiff seeks by this action to recover the difference between the active duty pay of a major with her length of service for the period October 19, 1959, to September 1, 1964, and the pay she has received as an enlisted person from January 14, 1960, to September 1, 1964.

(b) The evidence in this case consists only of documents appearing in plaintiff’s 201 file. No trial has been held. The documents were received in evidence at a pretrial conference. Upon, tbe closing of proof, requested findings of fact and briefs were filed by the parties.

CONCLUSION 0J? LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover the amount she would have received as a major with her length of service from October 19, 1959, until September 1, 1964, less the amount she received as an enlisted person from January 14, 1960, until September 1,1964. Judgment is entered for plaintiff accordingly, with the amount of recovery reserved for further proceedings pursuant to Buie 47 (c).

* This court has consistently ruled that, where it should have been unnecessary under the law for the claimant to go to the Correction Board, that tribunal’s adverse determination may be disregarded (except for extraordinary circumstances). See Friedman v. United States, 141 Ct. Cl. 239, 252-54, 158 F. Supp. 364, 373-74 (1958) ; Morris v. United States, 163 Ct. Cl. 259, 260 (1963) ; Wason v. United States, 179 Ct. Cl. 623, 626, 631 (1967).

1 She was promoted to lieutenant colonel, United States Army Reserve, on March 2, 1958, but was serving on active duty in the grade of major at the times material to these findings.

2 Reserve Components — -Officer Periods of Service, AR 135 — 215, para. 7b, Dept. of the Army, May 27,1955.

3 Reserve Components — Relief of Officers and Warrant Officers from Active Duty, AR 135-173, paras. 50 and 51, Headquarters, Dept. of the Army, Dec. 5, 1958. AR 135-215, para. 10c(l) contains a similar provision for the finality of board action.

4 Among these items were (1) a showing that plaintiff’s OBI as of June 30, 1958, had fallen below the average for WAC officers of her grade and component, but (2) that she had received no promotion passovers.

5 By letter dated August 1, 1960, from the Commanding Officer of the united States Army Recruiting Main Station, Atlanta, <to the Adjutant General, a statement in support of plaintiff’s application was submitted.

6 This letter is not in evidence.

7 This letter is in evidence. In it plaintiff referred to her “letter of 14 September 1959 to The Inspector General * * * in which * * * [she] requested an investigation * * The letter of December 9, 1959, continues, in pertinent part: “What seems * * * to be significant is that * * * whenever in the course of my military career I was stationed at an installation at which female personnel were in a minority, I received good efficiency reports from my superiors, and that my only serious difficulties in almost IT years of service were experienced at the single post in the Army where female personnel predominate.”