202 Ct. Cl. 678 | Ct. Cl. | 1973
Lead Opinion
delivered the opinion of the court:
Plaintiff, a lieutenant in the United States Navy with over ten and one-half years of active duty service, who was honorably discharged effective June 7, 1968, after having been passed over for promotion to lieutenant commander by two successive selection boards, seeks recovery of both the active duty and retirement pay of a lieutenant commander.
The plaintiff’s suit is not based on an illegal discharge. Instead, he claims that the actions of the selection boards in twice passing over him for promotion and failing to select him for promotion to lieutenant commander, as shown below, were arbitrary, capricious, and contrary to law. The case was heard by our Trial Judge C. Murray Bernhardt.
We have carefully considered the pleadings, briefs, and oral arguments of the parties and have concluded that the plaintiff is not entitled to recover. The basic facts in the case are as follows:
Plaintiff enlisted in the United States Marine Corps Reserve in 1952 and was appointed to the United States Naval Academy where he graduated as an ensign in June 1958. He was promoted to lieutenant (jg) in 1959, and to lieutenant in 1967 (effective retroactively to June 1,1962). He was honorably discharged effective June 7, 1968, having been passed
While plaintiff was serving as weapons officer on the U.S.S. Luce on January 19, 1966, under the command of Commander Lademan, a 1% ton nuclear missile was dropped on the deck of the Luce while the Luce was anchored at Mayport Naval Air Station, Florida. The missile did not explode, there were no injuries, but there was considerable publicity over the accident because of its potential consequences. As weapons officer, the plaintiff had technical responsibility for the incident, whether or not he was negligent.
On January 22, 1966, an informal board of investigation was convened to inquire into the circumstances of the missile accident. Plaintiff appeared voluntarily before the board and testified on January 29, 1966. On the next day, plaintiff requested that he be made a party to the investigation, but after consulting on January 31, 1966, with his father, a lawyer, plaintiff withdrew his request to be made a party. However, the board advised the plaintiff that he had been made a party to the investigation. Plaintiff was assigned military counsel, and plaintiff’s father, a retired Marine legal officer, was permitted to act as plaintiff’s individual counsel to assist Lt. Olson, the assigned military counsel.
At the resumption of the board proceeding on February 9, 1966, plaintiff was called as a witness but declined on advice of counsel to testify. Plaintiff and his counsel did though attend the board sessions until it adjourned on February 17, 1966. On that date, plaintiff’s security clearance was terminated. The board of investigation record is classified as “Secret” and is not in evidence, and was not furnished to the selection boards nor considered by them, but plaintiff and some others in his behalf have seen the record.
The board of investigation recommended that plaintiff be issued a punitive letter of admonition relative to a total of eight alleged specified derelictions in the performance of his duty. Following receipt of the board proceedings, Admiral Kuckner, the convening authority for the board, issued on May 11,1966, a letter of censure in the degree of admonition which was received by plaintiff on May 28,1966. The letter
1. Deletion of several discrepancies relating to Weapons System check sheets which resulted in confusion and did not properly alert the Commanding Officer.
2. Knowingly permitted Commanding Officer to report corrections of discrepancies where such had not been corrected.
3. Failure to complete or insure completion of the assembly of weapons publications as required.
4. Failure to implement Weapons Department Organization as directed.
Following a series of communications relative to plaintiff’s efforts to obtain time extensions to file an appeal, plaintiff, on November 24, 1966, submitted his appeal wherein was set out ten assignments of error, i.e.:
1. Failure to designate plaintiff as a party at the initiation of proceedings.
2. Failure to afford him the rights of a party.
3. Refusal to permit him to withdraw his request to be made a party.
4. Failing to inform him of the reasons for concluding that he should be designated a party.
5. Making findings adverse to him.
6. Failing to afford him a fair and impartial hearing.
7. Subjecting his appointed counsel to improper influence.
8. Adversely commenting upon his exercise of his right not to testify.
9. Conducting proceedings at such time that he was unable to protect his interests.
10. Unduly and improperly harassing the efforts of his individual counsel.
On January 28, 196Y, Admiral Ruckner, in a letter to the Commander-in-Chief, Atlantic Fleet, advised that he had set aside the punitive letter of censure, and requested that the copy of the letter of censure previously forwarded to the commander-in-chief “be destroyed or returned to the originator,” namely himself. On February 9, 1967, the Commander-in-Chief, Atlantic Fleet, advised Admiral Ruckner
Nevertheless, it is apparent that there were deficiencies in the Weapons Department on board UtSS LUGE (DLG7) and that as Weapons Officer you were responsible for the proper administration of this department. Although the circumstances as now presented do not warrant punitive action, it is considered that your performance prior to the incident involved was deficient. You are, therefore, to take the contents of reference (b) [the letter of censure] as a caution, not in the sense of Article 15, TJCMJ, but merely instructional in nature. [Reference (b) [the letter of censure] will not be made a part of your official record and will not be forwarded to higher authority. Its sole purpose is the improvement of your performance of duty.
Also on January 28, 1967, Admiral Buckner wrote to the Judge Advocate General, with copy to plaintiff, advising that he had set aside the letter of admonition and had issued a letter of instruction to plaintiff. Further, he requested that the investigation, as in the case of Commander Lademan, should be made a matter of interest in the official record of plaintiff. On January 31,1968, the Chief of Naval Personnel caused an endorsement to be attached to the records of the board of investigation which recited the instructions of January 28, 1967, received from Admiral Buckner and further stated as follows:
* * * However, lacking a supplementary investigation to reconcile the evidentiary matters in conflict, it is not considered appropriate to hold this investigation as a matter of interest in the official records of either CDB Lademan, the CO of LUGE, or L. T. Brenner. * * *.
Plaintiff was considered but not recommended for promotion to lieutenant commander by a selection board which met from September 21 to October 22, 1965. This was not considered a “pass-over” on plaintiff’s records, since plaintiff was below-the-promotion-zone on that occasion.
Plaintiff was thereafter considered for promotion to
In summarizing plaintiff’s 22' periodic fitness reports throughout his 10 years of active duty in the Navy, the trial judge found, in pertinent part, as follows:
23. (i) The plaintiff seemed capable of high achievement on many occasions, as witnessed in the honors and commendations which he won directly or indirectly * * *. "While the plaintiff’s ratings for the various categories would vary from period to period, or from rating officer to rating officer, the impression is gained from a close study of all of his fitness reports that the plaintiff excelled in such matters as ship handling, seamanship, gunnery, military bearing, loyalty, and self-expression, while he was sometimes average or less in matters of judgment, reliability, cooperation, and compassion with subordinates.
On December 6, 1967, after having been passed over by the second selection board, and having been transferred to a Navy Sub-Board of Inspection and Survey at Newport Naval Base, plaintiff requested an early discharge and a commission in the Naval Reserve. Plaintiff was honorably discharged June 7, 1968. Plaintiff testified that if he were offered reinstatement in the Navy he would decline; that his age, lengthy interruption of active duty, and the ineradicable blotting of his copy book would make his advancement too unlikely as a retread; and that he is now selling real estate.
The particular relevance of the plaintiff’s due process contention, especially as to the board of investigation phase, is not apparent. The plaintiff is not basing his cause of action in this case on what the board of investigation did. Accordingly, if there were any due process violations by the board of investigation, they would not be relevant, germane, nor controlling. In that regard, the cases of Conn v. United States, 180 Ct. Cl. 120, 376 F. 2d 878 (1967), and Cole v. United States, 171 Ct. Cl. 178 (1965) are clearly distinguishable. As stated above, this is not an illegal discharge proceeding per se where alleged due process violations are important. Bather, it is a proceeding to void plaintiff’s pass-overs by the two selection boards because they are alleged to have improperly considered, with relation to plaintiff’s promotion prospects, certain derogatory material which should not have been before them, material which might warp their judgment. This opinion is confined and limited to a consideration of that issue.
As long ago as Reaves v. Ainsworth, 219 U.S. 296 (1911), as explicitly as Orloff v. Willoughby, 345 U.S. 83 (1953), Norman v. United States, 183 Ct. Cl. 41, 392 F.2d 255 (1968),
* * * judges are not given the bask of running the Army. * * * The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. * * *
The given reason for this hands-off policy is particularly valid with respect to the recommendations of selection boards for officer promotions, for the record of ,an individual on the list of eligible candidates is to be contrasted with similar records of the often hundreds of other candidates on the same list. “* * * The criteria [i.e., for promotion] were for the board in its sworn judgment to apply for the good of the service. Suffice it to say that we are in no position to assess and appraise that record by itself even were we free to do so.” Payson v. Franke, supra, at 854.
Selection boards are composed of carefully chosen senior officers. Precautions are taken to avoid placing in a candidate’s file and available for inspection by the boards material which is unfairly prejudicial or derogatory to the candidate, such as incomplete investigations to which he is a Party in Interest. The proceedings of selection boards are secret. No record is kept as to precisely what data beyond fitness reports ¡and the individual’s personnel file the boards might consult or know about. A selection board must be provided with the names of all officers in the promotion zone and the records of all candidates are furnished to the board.
B-2201. OFFICER’S RECORD
(1) An officer’s record maintained in the Bureau of Naval Personnel is intended to reflect the official history of his career in the Navy. It is the property of the Government and not of the officer concerned. This official record maintained for each Navy and Naval Reserve officer contains any document which bears or reflects on the character, performance, professional qualifications and fitness of the officer. It is composed of the following files and includes, but is not limited to, the documents indicated:
(a) 'Fitness Report Jacket—
1. Reports of fitness.
2. Letters attached to and officially submitted as a part of fitness reports.
3. Photographs.
4. Statements regarding unsatisfactory fitness reports and 'acknowledgment of any unfavorable matter therein.
(b) Selection Board Jacket—
1. Certificates: Birth, citizenship, education and training. Commissions, appointments, acceptances, waivers, oaths of office, classification changes, records of emergency data, Statement of Personal History (DD Form 398), certificates of security clearance, and documents certifying completion of security investigative requirements.
2. Copies of citations, awards, and letters of commendation or censure.
3. Reports of physical examination, medical surveys, personal biographies, transcripts of service, applications for commission, notices of separation, requests for change of duty and tenders of resignation, retirement requests, and other voluntary applications for separation from active duty.
4. Written communications from the officer concerned inviting the attention of the selection board to matters of record.
5. Statements of the officer in reply to adverse matter in his selection board jacket.
6. Extracts from the findings and recommendations of courts and boards concerning the officer. These*688 include statements of disciplinary action and promulgating letters of general courts-martial. Complete records of proceedings of courts-martial, inquiries, investigations, etc., are filed in tifie Office of the Judge Advocate General.
(2) Promotion Examinations. — Completed promotion examinations are filed in the Office of the Judge Advocate General.
(3) Access to officers record,. — (a) Access to the record of an officer is given only to the officer personally, to the clerk of a court of competent jurisdiction in response to a valid order from that court, to the officers of the Navy Department for use in the transaction of official business, and to the representative of the officer upon presentation by such person of a written authorization from the officer concerned.
(b) The record of an officer shall be available for inspection by him or his duly authorized agent, designated as such by him in writing.
(c) The record of an officer being considered for selection is available to the selection board for use in its deliberation.
(4) Incorporation of matter into officer's record. — (a) Any matter that is rightfully placed in the official record of an officer may not be removed except by special authorization of the Secretary of the Navy. The record is permanent. Each day of his service career the officer is building up material for his record which, when properly entered, is there to stay. A fitness report once submitted to the Chief of Naval Personnel becomes the property of the Navy Department and is not subject to change; however, a controversial report may be amended by correspondence forwarded via official channels, such correspondence to be attached to and made a part of the report in question. His record is reviewed when any change in his status is contemplated, such as assignment to duty, special details, examination for promotion, trial by general court-martial, or disciplinary action by the Chief of Naval Personnel, and it is of particular importance in the selection for promotion to the higher grades. In other words, in 'furnishing the material for his record the officer is daily adding to the evidence that •is the basis of his personal and professional reputation in the service.
(b) It sometimes happens that officers either do not put forth their best efforts or fail in the strict observance of the naval code, with no intention of being lax in the*689 discharge of their responsibilities or careless in their conduct, and without a full realization of the consequences. A mass of unfavorable matter, even though the separate entries are not in themselves of a grave nature, will naturally build up a prejudice against an officer which, in the aggregate effect, may be as detrimental to him in the years to come as a conviction by a general court-martial.
(c) Pursuant to United States Navy Regulations, adverse matter shall not be placed in ¡an officer’s record without his knowledge. In all cases it shall be referred to the officer reported on for such official statement as he may choose to make in reply. If the officer reported on desired to make no statement, he shall so state officially in writing. The Chief of Naval Personnel is liberal in his interpretation as to what constitutes adverse matter.
(d) No anonymous communications are made ia part of an officer’s record.
(5) Confidential matter. — Correspondence of a confidential nature from any source pertaining to an officer’s record is filed in the personal custody of the Head, Officer Records Branch, Bureau of Naval Personnel. In the majority of cases, there is no confidential matter pertaining to the officer, and consequently no confidential file. Matter of an unfavorable nature is first referred to the officer concerned before filing. Access to an officer’s confidential file is allowed as specified in paragraph (3) of this article, but authority must be granted by the Chief of Naval Personnel or the Acting Chief of Naval Personnel in each case in order to safeguard the individual officer’s interests and the security of certain private or confidential matter.
A selection board may not consider anything not authorized by the foregoing regulations. As may be seen from such regulations, an officer’s record may be inspected by him or his authorized representative. He may communicate with the board in accordance with 10 U.S.C. § 5755 inviting ¡attention to any matter of record in the Department of the Navy concerning himself. Adverse material or information is not placed in his record without his knowledge. If ¡any adverse reports are proposed to be included in his fitness reports, the officer involved must be so advised, and he is given ian opportunity to comment on such material or information at the time it is forwarded for inclusion in his jacket. It is within
The governing statute applicable to selection boards provides that each member of the board “shall swear that he will, without prejudice or partiality, and having in view 'both the special fitness of officers and the efficiency of the naval service, perform the duties imposed upon him by law.” 'It is clear from the provisions of this law that the special fitness of officers and the efficiency of the naval service are of paramount importance in the selection for promotion process. The members of selection boards are officers with expertise in these fields.
In the instant case, the burden was on the plaintiff to show that one or both of his selection boards knew about and considered adverse evidence that was not in his record as defined above in the quoted provisions of the Bureau of Naval Personnel Manual. This he has failed to do. Although the plaintiff alleged that his selection boards knew about and considered the proceedings of the board of investigation, the record thereof and the decision it reached, there is no proof that any of this occurred. In fact, the evidence is to the contrary. It is true that there were two references in his fitness reports that he had been a party to an investigation, one being by Commander Drake as a rating officer as a part of his official duties, and the other by Admiral Eli T. Eeich in a letter of October 2, 1967, in plaintiff’s behalf to the 1967 selection board. Neither reference gave any details about the investigation nor the results of same. These references were properly in plaintiff’s fitness reports. It will be recalled that the plaintiff asked to be made a party to the investigation, although he tried unsuccessfully later on to withdraw the request. The letter from Admiral Eeich could hardly be considered adverse to plaintiff because it recommended that plaintiff be promoted to lieutenant commander and referred to him as “an outstanding young officer whom I felt had great potential.”
Plaintiff’s personnel file that was before both selection boards contained the Security Termination Statement issued to plaintiff on February 17, 1966, which mentioned that he
The plaintiff also alleged that both selection boards knew about and considered the punitive letter of censure issued to him by Admiral Buckner which was later withdrawn and destroyed, as well as the letter of instruction issued to him by Admiral Buckner. There is no proof that the boards knew about or considered either of these letters.
We conclude that the selection boards did not select the plaintiff because of the contents of his fitness reports and personnel files as compared to those of other candidates, and that they did not consider any evidence outside of those reports and files. Some of the fitness reports were critical of the plaintiff. One such report was filed by Commander Lade-man for the period July 1, 1965, to February 19, 1966, in which plaintiff was criticized for his proneness to antagonize others, and in which he was given next to the lowest rating available. The plaintiff answered this criticism and Commander Lademan defended his criticism in writing. It is true that the plaintiff had received many awards and citations and top ratings for excellent service during his career. Our trial judge found that:
* * * [0]n the plus side the plaintiff impressed many of his rating officers as energetic, highly motivated, ambitious, dedicated, alert, intelligent, enthusiastic, resourceful, and highly qualified in ship handling, seamanship, and gunnery. On the minus side the plaintiff impressed some of his rating officers as being undiplomatic, dictatorial to subordinates, bored with routine duties, lacking judgment, impulsive rather than thought-Hí H»
This was the situation when the selection boards convened. The first board was given a quota of 324 promotions to lieutenant commander. Eighty to ninety percent of the candidates were selected for promotion. The second board had a quota
We must assume in the absence of evidence to the contrary that the members of these selection boards performed their duties as officers of the government in a fair and impartial manner and in accordance with law, and that in so doing they gave the plaintiff due and proper consideration along with all of the other candidates for promotion. It is obvious that this promotion procedure has a certain amount of “built-in” attrition, because all the officers considered cannot be promoted. No doubt the system is designed to encourage officers to render the best possible service at all times so that they may be selected for promotion when the time comes for them to be considered. It is natural and understandable for an officer, such as the plaintiff, who has been passed over, to feel that improper evidence was considered by the boards. However, it is quite a different thing to prove that such was the case.
The reluctance of the judiciary to review the promotion actions of selection boards is rooted not only in the court’s incurable lack of knowledge of the total grist which the boards sift, but also in a preference not to meddle with the internal workings of the military. The latter would not be sufficient by itself to deter judicial review, for with great frequency this and other Federal courts entertain claims based upon illegal discharges, failure to award disability retirement pay, and occasionally collateral attacks on court-martial convictions, all of which involve internal affairs of the military services. But in such cases the records available for judicial scrutiny are more finite and identifiable than are the deliberations of selection boards in discharging their promotion responsibilities, which are shrouded in mystery and imponderables. In Ricker v. United States, 184 Ct. Cl. 402, 398 F. 2d 454 (1968), the court set aside the action of a Navy promotion board in failing to continue the plaintiff in service because the board was illegally constituted, a clue as
The plaintiff relies on the cases of Weiss v. United States, 187 Ct. Cl. 1, 408 F. 2d 416 (1969); and Clinton v. United States, 191 Ct. Cl. 604, 423 F. 2d 1367 (1970). However, those cases are distinguishable. In the Weiss case the Board for the Correction of Naval Records had recommended that Weiss’ records be corrected to reflect that he was not reported unsatisfactory by the selection board, but the recommendation was disapproved by the Under Secretary of the Navy. The court held that the action of the Under Secretary was improper and ruled for the plaintiff. The plaintiff in the case before us did not apply to the Correction Board to change his record.
In the Clinton case a correction board changed an officer’s record to remove a first pass-over by an Air Force selection board because the selection board wrongfully considered certain derogatory material that prejudiced the officer’s selection. None of these facts exist in the instant case.
The plaintiff also cites the case of Rawlins v. United States, 197 Ct. Cl. 972 (1972). That case is a report of a review panel of three commissioners of this court on referral from the United States Senate pursuant to 28 U.S.C. §§ 1492 and 2509. The commissioners found that the plaintiff, Commander Rawlins, had an equitable case hut not a legal case, because he had not been promoted to captain due to an erroneous and arbitrary fitness report. That case is not a precedent binding on this court. Furthermore, the decision militates against the plaintiff in the instant case rather than for him.
The plaintiff asks this court to promote him to the position of lieutenant commander, and to award him back pay in that rank from the time he would have been promoted to that rank, and pay for the rank he would 'have acquired until his normal and natural retirement from active service, plus retirement pay as a retired Navy officer. Such a recovery is beyond our power to grant. Federal courts have held many times that they are not in the military “promotion business.” We adhere to that principle.
The promotion of an officer in the military service is a
We hold that the actions of the selection boards in 1966 and 1967 in not recommending plaintiff for promotion were not arbitrary, capricious, or contrary to law, and that plaintiff is not entitled to recover any active duty pay or retirement pay, and that judgment is hereby rendered for the defendant and plaintiff’s petition is dismissed.
We are Indebted to Trial Judge Bernhardt for Ms opinion and findings of fact, much of which we have adopted. However, we reach a different result.
Tie fact that plaintiff’s files showed that he had been a party to an Investigation did not automatically prevent his promotion. This is shown by the promotion of Commander Lademan who was a party to the same investigation and whose files revealed this fact.
Concurrence Opinion
concurring:
I concur in Judge Skelton’s opinion and in the judgment of the court. Whether plaintiff has an equitable claim is not properly before us, as it might have been had he applied to the Board for Correction of Naval Records and been turned down. Cf. Rawlins v. United States, 197 Ct. Cl. 972 (1972). The reporting tribunal in a Congressional reference case there held as to a claim much like that herein, that the Navy should have allowed Rawlins’ claim to go before such a Board. Thereby a route exists for getting equitable claims before this court without special legislation. Cf. Kaeserman v. United States, post at 1081. A refusal by a Board to correct an “injustice’ may be reversed as arbitrary and capricious although we could not grant relief directly. For reasons to be shown, however, the proof of even “injustice” would have to be clearcut in a way the instant claim probably would not satisfy. As a legal claim it manifestly fails.
Defendant says, (Supplemental Memorandum, p. 3):
Therefore, it would appear to be appropriate to say that in its consideration of records a selection hoard would incorporate the experience in the naval service of those officers on the board and their mews as to which officers are best suited for promotion. (Emphasis supplied.) That subjective judgment is combined with the objective records in reaching a decision. Article B-2201 of the Bureau of Naval Personnel Manual (DX 9, 10) sets forth therein a list of files which compose [comprise?] an officer’s record “but is not limited to, the documents indicated.”
I take it this means that an officer’s “record” consists of (a) certain formal documents, as assembled in a file jacket for the Board, and (b) such ideas 'and impressions as members of the Board may have formed about the officer’s fitness, in course of their normal naval experience. But I find it all very vague and indefinite. Lacking knowledge of what a Selection Board “knows” of a candidate for promotion outside the file
It is probably true, as we were told in one of our cases, that the hazards of destruction of a career by such blind chance are greater for the young man or woman who aspires to rise in corporate management, finance, the media, (or, God forbid the law!) than they are in the Navy. Some exposure to unmerited catastrophe seems a necessary concomitant of any occupation that provides an adequate amount of upward mobility, to attract the career-oriented person. One who is security-oriented can select the Civil Service. He cannot demand in the same career the glitter and glory of an admiral and the job security of a customs inspector.
The Selection Board system succeeded promotion by seniority, where all one needed to make admiral was a sound stomach, and a talent for staying out of jail. We don’t want that system back. Selection Boards are impartial, institutionalized and regular, in contrast to private industry, where mere whim and caprice — or raw financial power — may decide who gets the six figure salary, and who gets the axe. We don’t want that either. You could not impose due process on Selection Boards without destroying their essential character. Naval officers need to be able to rely absolutely on other officers in other ships, to believe utterly in their reports, to know exactly how they will respond to particular orders, or to possible emergencies. If naval officers have a gut feeling, based on evidence or experience, that X cannot be depended on, their own efficiency is impaired so long as X holds command rank. I would not therefore, in a judicial capacity, do anything to prevent these gut feelings from having some effect on the decision whether X is promoted or passed over, unless they infringe on constitutionally protected rights. If, as d. v. I won’t, I should have to serve as a draftee in another war, I would hate to be on board a ship whose commander owed his rank and position to the fact his Selection Board was not allowed to consider anything but a sanitized official file. Let us not forget the right of enlisted men, serving under these officers, not to be led into another Pearl Harbor.
Assuming that Mr. Brenner was passed over in light of the
In Weiss v. United States, 187 Ct. Cl. 1, 408 F. 2d 416 (1969), they put in prejudicial material and left out exonerating material, as-was clearly established. The preferred alternative there would have been, not to blind the Board as to plaintiff’s troubles, or try to, but to give it the full picture, including the disapproving endorsements of the higher command on the Board of Investigation report, which had accused Weiss of currency irregularities. We so intimated. Viewing the case in retrospect, it certainly seems that any attempt to protect Weiss by keeping all references to his currency involvement out of his file jacket would have been of doubtful benefit to him, though his alleged offense had not, so far as the record showed, the word-of-mouth notoriety of Brenner’s. Our trial judge therefore was in error in saying a common feature of Brenner’s and Weiss’s cases was the “presence before the Selection Boards of derogatory material
I therefore believe the wrong, if there was one, to Brenner, is not correctible by judicial review. It lay, essentially, in legislation forcing his name before Selection Boards at a time when he was a party to an investigation not yet finalized as to top level approval of its conclusions. For the future, the prevention of injustices of this kind is a matter for Congress to weigh. There may be reasons I am not aware of, why holding back of names of those similarly situated with Brenner, for future Boards, is not feasible.
Dissenting Opinion
dissenting:
After a full hearing, Trial Judge Bernhardt found that there was present before the 1966 and 1967 selection boards “material which should not have been before them,” preventing the record considered by those boards from being “free from bias and distortion.”
The question then becomes whether it was material error for the boards to have had and considered this information. I wholly agree with the majority that a selection board is forbidden to consider anything not authorized by the governing statute and regulations, and I am of the further view that a board’s actions on the basis of an improper “record” are invalid. See Weiss v. United States, 187 Ct. Cl. 1, 15, 408 F. 2d 416, 423 (1969) (concurring opinion). The whole structure of the selection-board system — as established by the statute and regulations — contemplates that the officer will know what derogatory information is to be weighed and will have a chance to respond to it. The regulations carefully delimit what the officer’s record shall consist of, and they make a special point of declaring that “ [a] dverse matter shall not be placed in an officer’s record without his knowledge” and that “[n]o anonymous communications are made a part of the officer’s record.” Communications which are not part of the regular personnel file are excluded from the material given to the board, unless perhaps they contain nothing derogatory.
Under this regime, the board members are to decide on the basis of the information in the folders put before them. They are not to be influenced by personal preferences, unsubstantiated hearsay, gossip, rumor, or even general reputation which is not reflected in or supported by the fitness reports
If one accepts, as I do, the trial judge’s findings, there is no doubt that Brenner’s selection boards had access to and took account of material not properly a part of this official history. Neither the proceedings nor the report of the Board of Investigation were includable in the proper selection 'board record because the inquiry proceeding — which there is good reason to believe was procedurally defective — was still incomplete and unreviewed. Admiral Buckner himself wrote to plaintiff (early in 1967) that substantial new evidentiary matters presented in plaintiff’s appeal mitigated the dereliction alleged and would have possibly averted action of a punitive nature if such matters had been available to the Board of Investigation. As for the letters of censure and instruction, they too should not have been seen. The first was wholly withdrawn and the other was barred by Navy directive from inclusion in the record. The JAG Manual, § 0101(c), Change 16, March 29, 1966, provided that non-punitive letters of censure are not to be included in the officer’s personnel file, and this of course would likewise apply to letters of instruction, a milder form of sanction. Plaintiff did not know that any of these materials was to be taken into account, and he had no opportunity to explain the situation from his own standpoint.
The applicable rule was well stated by the court, by way of considered dictum, in Weiss v. United States, supra, 187 Ct. Cl. at 7, 408 F. 2d at 419: “But the selection procedure must follow the law. The documents which are sent to a Selection Board for its consideration therefore must be substantially complete, and must fairly portray the officer’s record. If a Service Secretary place before the Board an alleged officer’s record filled with prejudicial information and omits
In my view, that is precisely what happened here (as it did in Weiss). It follows that plaintiff was illegally passed over, twice, by the invalid decisions of the selection boards, and as a direct consequence was illegally separated. The statute does not authorize separation unless the officer is lawfully passed over. Plaintiff is therefore entitled to recover, but I agree with the trial judge and the court that he could not obtain more than the pay of the grade at which he was discharged. We cannot say that, if the selection board proceedings had been entirely proper, he would necessarily or even probably have been promoted. But we can and should say that he should not have been discharged as the result of invalid selection board determinations.
UNKINGS OF FACT
1. Plaintiff, born August 25, 1935, served in the United States Marine Corps Reserve from August 29, 1952, graduated from high school in 1954, and from active duty in the Marine Reserves won a competitive appointment to the United States Naval Academy, Annapolis, Maryland, standing within the top 160 authorized competitive appointments for enlisted members of the United States Navy and Marine Corps Reserves. He graduated from the Academy on June 4, 1958, with a Bachelor of Science degree, and was commissioned as an ensign. He was promoted to lieutenant (j.g.) on December 4,1959, and to lieutenant on March 25,1967 (effective retroactively to June 1, 1962). He was honorably discharged effective June 7,1968.
2. During his naval career he was assigned sea duty on several destroyers and guided missile frigates, serving successively as antisubmarine warfare officer, gunnery officer, missile officer, assistant weapons officer, and weapons officer. He also had shore assignments as Training Program Manager
3. During his naval service plaintiff received various commendations, honors, and praise:
(a) On July 1, 1965, while serving on the U.S.S. Luce plaintiff was qualified as CIC watch officer and command duty officer by Comdr. Lademan, commanding officer of the U.S.8. Luce. In making these certifications to plaintiff Comdr. Lademan recognized plaintiff’s “demonstrated ability and sound judgment”, stating as to the former that he had “complete confidence * * * in your ability to handle the ship under all conditions.”, and as to the latter that “This watch qualification [actually referring to the qualification as command duty officer] is the highest attainable aboard Luce and represents the complete confidence of the commanding Officer in your ability to represent him as necessary in all matters administrative and operational * * This was the same Comdr. Lademan who, as plaintiff’s rating officer, made out plaintiff’s fitness report for the period from July 1,1965 to February 19,1966, and whose comments therein as to plaintiff’s character were incompatible with his remarks of July 1, 1965, quoted above. (See finding 23 (k), infra.)
(b) On December 2,1966, Admiral Ruckner, the commanding officer of the Cruiser-Destroyer Force, U.S. Atlantic Fleet, commended the commanding officer of the Luce and his crew for the excellent rating given the ship during maneuvers on November 22 and 23, 1966, noting vast improvement in performance of its nuclear weapons mission. At that time the plaintiff was weapons officer of the Luce and his performance as such was largely responsible for the commendation. (Admiral Ruckner on May 11,1966 had issued a letter of censure to plaintiff, and withdrew it on January 28, 1967 (finding 19(c),infra).
(c) On September 18, 1967, Comdr. J. C. Drake, then
(d) On October 2, 1967, Admiral Eli T. Beich wrote to plaintiff’s 1967 Selection Board recommending favorable consideration of plaintiff’s promotion to lieutenant-commander referring to plaintiff as an “outstanding young officer whom I felt had great potential,” and to his contribution as weapons officer to the winning by the Luce of a Weapons “E”. This letter, which refers to a missile mishap during plaintiff’s tenure as weapons officer of the Luce, which resulted in an investigation, was available for examination by plaintiff’s 1967 Selection Board (see finding 31, infra).
(e) On April 12, 1962, Admiral Sends congratulated the commanding officer, officers and crew of the U.S.S. Dewey for their “splendid performance” in solving the problems plaguing the Terrier weapons system. “A sincere well done.” Plaintiff at the time was missiles officer for the Dewey and an authority on the Terrier missiles, and therefore was instrumental in the earning of the commendation.
(f) On June 12,1963, Office of the Chief of Naval Operations complimented plaintiff for his authorship of an article entitled “The Terrier BT-S” for publication in combat READINESS.
(g) On July 27,1960, the commanding officer of the U.S.S.
(h) On August 16, 1960, the plaintiff was issued a commendation by the commanding officer of the Blandy for his “substantial contribution” to the award of a Battle Efficiency Plaque to the Blandy for fiscal year 1960.
(i) The commendations and complimentary references described in paragraphs (b), (c), (e), (f), (g) and (h) of this finding were permanently placed in plaintiff’s file of fitness reports and were available to future Selection Boards.
4. Plaintiff was assigned as weapons officer to the O.S.S. Luoe, a guided missile destroyer then under the command of Comdr. Lademan, reporting there May 23, 1965. On January 19,1966, while the Luoe was anchored at Mayport Naval Air Station, Florida, a nuclear-armed surface-to-air guided missile known as the Terrier was dropped on the deck of the Luce from a height of several feet while being routinely handled. The Terrier is 27 feet in length and iy2 tons in weight. The missile did not explode. Demolition crews removed it. There were no injuries. There was considerable publicity over the accident because of its potential consequences, although the Navy officially reported that because of the construction of the Terrier there was no risk of an explosion. As weapons officer the plaintiff had technical responsibility for the incident, whether or not he was negligent, according to the military rule of command responsibility.
5. Several official investigations were conducted of the missile accident circumstances referred to in finding 4, supra. One was by Comdr. Lademan, commanding officer of the Luoe, assisted by Lt. Comdr. Kosmela, his executive officer. Another was by the Bureau of Weapons. Another by the Bureau of Ships. The principal investigation was by an Informal Board of Investigation.
6. At the instance of Admiral Buckner (finding 3(b),
7. On the next day, Sunday, January 30, 1966, without being fully cognizant of the nature and scope of the Board investigation, and without representation by counsel, plaintiff requested that he be made a Party to the investigation. No action could be taken on the request due to the absence of a third member of the Board. Plaintiff then conferred by telephone with his father, who was a lawyer and a retired (1958) Marine legal officer, who told him that he had perhaps been premature in requesting to be made a Party, and suggested that plaintiff merely continue to cooperate with the Board proceeding.
8. On Monday, January 31, 1966, plaintiff withdrew his request to be made a Party, and advised the Board that he wanted to continue to cooperate informally with the investigation without becoming a Party. Capt. Schremp advised him that he could not act on the withdrawal request in the absence of the third member of the Board. The next meeting of the Board was scheduled for February 7,1966. Plaintiff left on January 31 for a 5-day cruise on the Luce. While at sea he was sent a dispatch advising him that he had been made a Party to the investigation “at his request.”
(a) to be given due notice of designation as such.
(b) to be present during proceedings, except deliberations.
(c) to be represented by counsel.
(d) to cross-examine witnesses.
(e) to introduce evidence.
(f) to testify as a witness.
(g) to refuse to incriminate oneself.
(h) to make an argument at close of evidence.
10. Upon plaintiff’s being made a Party to the investigation. Lt. Eoy Olson was assigned as his military counsel. Plaintiff’s father, Lt. Colonel Ernest Brenner, USMB, was permitted to act as plaintiff’s individual counsel to assist Lt. Olson. Capt. Schremp advised plaintiff that the Board was investigating the incident simply to find facts, and that probably no more than a letter of censure would result.
11. At the resumption of the Board proceeding on February 9, 1966, the plaintiff was called as a witness. On advice of counsel plaintiff declined to testify. Plaintiff did not testify, but he and his counsel attended the remaining Board sessions until it adjourned February 17, 1966. On that date the plaintiff’s security clearance was terminated.
12. Comdr. Lademan was also a Party to the investigation and attended all of the Board sessions represented by counsel. He was selected for a “due course” promotion to captain by the Selection Board that met in the late summer of 1966, having not been passed-over by any prior Selection Board. His executive officer, Lt. Comdr. Kosmela, was also promoted to commander in 1966.
13. The Board of Investigation record is classified as “Secret” and is not in evidence. It is not a verbatim transcript of the testimony, but paraphrases it. Plaintiff and some others in his behalf have seen the record, but present counsel requested its production informally and has not been given the opportunity to see it.
14. Some time prior to May 11, 1966, the Board recommended that plaintiff be issued a punitive letter of admoni
15. On May 11, 1966, Admiral Buckner, the convening authority for the Board of Investigation, sent plaintiff a letter of censure in the degree of admonition. The letter referred to the missile mishap investigation and listed four personal derelictions on plaintiff’s part as weapons officer (reduced from eight derelictions recommended by the Board) ,
16. Plaintiff received the letter of censure on May 28,1966. On May 31,1966, he wrote to Admiral Buckner requesting a 4-month extension to prepare and file his appeal, citing the fact that on June 13, 1966, the Luce (with him as weapons officer aboard) would be deployed to the Mediterranean for 4 months. He also mentioned that advice of counsel would be necessary in preparing an appeal, and requested that he and his counsel have the Board record of proceedings made
17. There followed a series of communications relative to plaintiff’s effort to obtain a time extension to file his appeal, viz:
(a) On June 8, 1966, Admiral Buckner wrote to plaintiff giving him an extension to July 20,1966 (letter not received by plaintiff aboard Luce until July 27, 1966), and giving limited permission to plaintiff’s military counsel to inspect the Board record.
(b) On July 7,1966, plaintiff’s father, as counsel for plaintiff, wrote to Admiral Buckner enclosing a tentative appeal from the letter of censure citing deficiencies in the Board proceeding, requesting an extension of time for preparing an adequate appeal to 80 days after plaintiff’s return to the United States, and requesting that there be made available for examination the complete Board record necessary in the preparation of an appeal.
(c) Having had no reply to his letter of May 31,1966, requesting atime extension (Admiral Buckner’s reply of June 8, 1966, was not received by plaintiff until July 27), and having learned by telephone on June 8,1966, that Admiral Buckner was considering an extension to July 20,1966, for the plaintiff to file an appeal, the plaintiff on July 14,1966, wrote to Admiral Buckner advising him that the commander of the Luce had made available to him a copy of the Board record, and requested an extension to 30 days subsequent to the Luce’s return to the United States. Plaintiff advised Admiral Buckner that preparation of his appeal was complicated by his extremely heavy operational commitments on the Luce during its cruise, by his inability to consult with counsel, and by his counsel’s inability to obtain permission to examine the Board record.
(d) Plaintiff’s letter of July 14,1966, to Admiral Buckner described in paragraph (c) of this finding was accompanied by a first endorsement dated July 20 by the commanding officer (Drake) of the Luce urging that plaintiff be given the time extension to appeal that he had requested, that plaintiff
This is a very critical matter to this young naval officer. In effect he feels, and perhaps with good reason, that his entire future hinges on his ability to appeal successfully from this letter. He will be in the promotion zone for Lieutenant Commander this year. He cannot help but be affected in his daily activities by thoughts about the letter and fear of its consequences. His performance of duty in this ship is affected adversely therefore, and the effect of the letter is being compounded to the detriment of all.3
(e) Having received plaintiff’s letters of May 31 and July 14,1966, and the letter of July 8,1966, from plaintiff’s father, all of them relative to plaintiff’s request for a time extension to appeal the letter of censure, on July 27, 1966, Admiral Buckner advised the commander of the Luce by teletype that “no new basis for 4 months time extension exists”, and that plaintiff could not be temporarily detached from the Luce to give him time to prepare his appeal (as the commander of the Luce had suggested), but that the request and Admiral Buckner’s ruling thereon would be forwarded to the C-in-C, U.S. Atlantic Fleet for “resolution and disposition.” Thus as of July 27,1966, with all the facts known as to plaintiff’s absence on an extended cruise and his inability to prepare an adequate appeal to the letter of censure, Admiral Buckner was not disposed to give him an extension.
(f) By first endorsement of August 5, 1966, Admiral Buckner forwarded to the C-in-C, U.S. Atlantic Fleet, all of the papers relevant to the letter of censure and plaintiff’s efforts to secure an extension of time to file an appeal (except
(g) On September 30, 1966, the Deputy Chief of Staff, U.S. Atlantic Fleet, wrote plaintiff’s father advising him that plaintiff was granted an extension of time to November 25, 1966, to submit his appeal from the letter of censure. The plaintiff received formal notification of the extension on November 22,1966, abroad the Luce at sea
(h) On November 24,1966, plaintiff submitted his appeal, one day prior to the November 25,1966, deadline. In his appeal plaintiff set out ten assignments of error, viz:
(1) Failure to designate plaintiff as a Party at the initiation of proceedings.
*711 (2) Failure to afford him the rights of a Party.
(8)Refusal to permit him to withdraw his request to be made a Party.
(4) Failing to inform him of the reasons for concluding that he should be designated a Party.
(5) Making findings adverse to him.
(6) Failing to afford him a fair and impartial hearing.
(7) Subjecting his appointed counsel to improper influence.
(8) Adversely commenting upon his exercise of his right not to testify.
(9) Conducting proceedings at such time that he was unable to protect his interest.
(10) Unduly and improperly harassing the efforts of his individual counsel.
(i) Routine mail delivery from the United States to personnel on the Luce while it was on extended maneuvers in the Mediterranean took from 3 to 5 days.
18. On January 28, 1967, Admiral Ruckner wrote to the C-in-C, U.S. Atlantic Fleet that, based on plaintiff’s appeal, he had set aside the punitive letter of censure, and requested that the copy of the letter of censure forwarded to the C-in-C previously “be destroyed or returned to the originator.”, namely, himself. On February 9, 1967, the C-in-C, U.S. Atlantic Fleet, advised Admiral Ruckner by letter that the letter of censure had been destroyed as requested.
19. (a) Also on January 28,1967, Admiral Ruckner wrote to the JAG, with copy to plaintiff, advising that plaintiff’s appeal “presents substantial new evidentiary matters that are in conflict with the evidence before the board” and which, had they been available earlier, “ the punitive letter may not have been issued.” The new matters, said Admiral Ruckner, “do mitigate the derelictions alleged”, and therefore he “has set aside the letter of admonition and issued a letter of instruction to Lt. Brenner.” Finally: “Additionally, [I] consider that the investigation, as in the case of Commander Dixon M. Lademan * * * should be made a matter of interest
(b) The Board record is classified as “Secret” and a copy is in the custody of JAG along with all sequential endorsements, including references to Admiral Buckner’s letter of censure to plaintiff, his withdrawal thereof and substitution of a letter of instruction, and his suggestion to JAG to deposit the entire package in plaintiff’s official record as a “matter of interest.” It is not disclosed when the records were transmitted by JAG to BuPers, but it is concluded that they were so transferred sometime after January 28,1967, because on January 31, 1968, one year later, the Ohief of Naval Personnel caused an endorsement to be attached thereto, which recited the instructions of January 28,1967, received by JAG from Admiral Buckner and stated as follows:
* * * However, lacking a supplementary investigation to reconcile the evidentiary matters in conflict, it is not considered appropriate to hold this investigation as a matter of interest in the official records of either cdr LADEMAN, the CO of LU0E, OT LT. BRENNER. * * *
(c) Also on January 28, 1967, Admiral Buckner wrote to plaintiff stating that the proceedings of the Board were in substantial compliance with the JAG Manual requirements for an informal investigation, but that the substantial new evidentiary matters presented in plaintiff ’s appeal mitigated the dereliction alleged and would have possibly averted action of a punitive nature if such matters had been available to the Board. Therefore Admiral Buckner advised plaintiff that he had set aside the letter of censure previously issued plaintiff, and stated as follows:
*713 Nevertheless, it is apparent that there were deficiencies in the Weapons Department on board uss luce (dlg7) and that as Weapons Officer you were responsible for the proper administration of this department. Although the circumstances as now presented do not warrant punitive action, it is considered that your performance prior to the incident involved was deficient. You are, therefore, to take the contents of reference (b) [the letter of censure] as a caution, not in the sense of Article 15, troMu, but merely instructional in nature. Reference (b) [the letter of censure] will not be made a part of your official record and will not be forwarded to higher authority.6 Its sole purpose is the improvement of your performance of duty.
At this time the plaintiff was no longer under Admiral Buckner’s command. Note in finding 3(b), supra, that on December 2, 1966, Admiral Ruckner had indirectly commended plaintiff.
(d) An official communication from Navy JAG dated August 11,1971, and placed in evidence as a defendant’s exhibit states as follows:
The letter of admonition [i.e., letter of censure in the degree of admonition] which would have been awarded as non-judicial punishment (10U.S.C. 815) was, as Commander Cruiser-Destroyer Force U.S. Atlantic Fleet stated in his endorsement, withdrawn by him and no record that it had ever been awarded remains in any record. The letter of instruction issued in its place would of necessity be non-nonpunitive [sic] and therefore would not appear as such in Lieutenant Brenner’s record. The original was undoubtedly delivered to Lieutenant Brenner with no other distribution of copies.
20. On February 20, 1967, plaintiff’s individual counsel (his father) wrote to the JAG complaining that Admiral Ruckner had, in violation of JAG Manual provisions, directed JAG to include the Board record in plaintiff’s official record as a matter of interest, after having asked the C-in-C U.S. Atlantic Fleet to destroy the letter of censure (which was
21. In May 1966 complete copies of the Board of Investigation record (including first endorsement) were sent by Admiral Buckner to jag, BuWeapons, Ship Missile Systems Engineering Station, Naval Weapons Evaluation Facility, and the commanding officer of the Luce. Also in May 1966 Admiral Buckner sent a copy of the first endorsement to the Board of Investigation record, only, to the Commander of Cruiser-Destroyer Flotilla six, Commander Destroyer Squadron eight ; and to the senior member of the Board of Investigation (Capt. Schremp). The first endorsement indicated that a letter of censure had been issued to plaintiff. As stated in finding 19 (b), sufra, the Board of Investigation record, etc., were lodged with BuPers from sometime after January 28,1967, until at least January 31,1968.
22. (a) Throughout the 10 years of his active duty in the Navy the plaintiff received 22 periodic fitness reports. Four important sections of each fitness report are:
14. Performance of duties
15. Overall evaluation
16. Desirability
20. Leadership
Each of these listed categories on the fitness reports (except No. 15) is subclassified into either duty assignments or personal characteristics. Each of the subcategories is columnized for the officer to be rated from “Outstanding” or its equivalent (at the top of the range) down to “adverse” (at the bottom of the range). The officer is rated by his superior officer during the particular rating period. In rating the officer, the superior will indicate by inserting X-marks in the appropriate boxes as to those subcategories for which no rating is given because the officer being rated has not been observed with respect to
23. In order to determine statistically from plaintiff’s 22 fitness reports how he averaged out in comparison to a median, your trial commissioner devised a system of giving weighted points to each box, from 5 at the top end (outstanding) to 1 at the bottom end (adverse), and comparing the plaintiff’s points to the artificial median. The following results were obtained from this analysis:
(a) 14 — Performance of duties — Out of 22 reports the plaintiff equalled the median in 3 reports and exceeded the median in 19 reports.
(b) # 15 — Overall—Out of 22 reports the plaintiff equalled the median in 8 reports and exceeded the median in 14 reports. Defendant’s requested finding 12(d) analyzes plaintiff’s scores in this category to reflect that in several fitness reports the plaintiff was placed at the bottom of the rating officer’s list of preferences where the latter was simultaneously rating several officers. (See paragraph (g) of this finding, infra.)
(c) # 16 — Desirability—Out of 22 reports the plaintiff equalled the median in 5 reports, was less than the median in 3 reports, and exceeded the median in 14 reports.
(d) 20 — Leadership—in 22 reports the plaintiff equalled the median in 3 reports and exceeded the median in 19 reports.
(e) In 13 out of 22 fitness reports the plaintiff exceeded the collective median covering all 4 categories selected for analysis.
(f) In 19 out of 22 fitness reports the plaintiff equalled or
(g) Plaintiff’s ratings throughout the 22 reports were generally better in categories 14 and 20 (Performance of Duties, and Leadership, respectively), than in 15 and 16 (Overall, and Desirability, respectively). The categories of “Overall” and “Desirability” necessarily represent an entirely subjective and inherently imprecise value judgment by the rating officer, at least in comparison to the more objective type of grading criteria present in the “Performance of Duties” and “Leadership” categories. Thus a prickly personality could make an officer an undesirable shipmate, even though he might excel in many nautical proficiencies highly relevant to his ultimate military role.
(h) The plaintiff’s most consistently successful years of achievement as reflected in the four selected categories of his fitness reports were from June 1, 1959 to June 30, 1965. In his last 3 reports covering the period from November 29, 1966, to his discharge in June 1968, he was embittered and not highly motivated as a result of being passed-over by the Selection Boards and the prospective end of his naval career through what he considered unfair circumstances.
(i) The plaintiff seemed capable of high achievement on many occasions, as witnessed in the honors and commendations which he won directly or indirectly (see finding 3, supra). While the plaintiff’s ratings for the various categories would vary from period to period, or from rating officer to rating officer, the impression is gained from a close study of all of his fitness reports that the plaintiff excelled in such matters as ship handling, seamanship, gunnery, military bearing, loyalty, and self-expression, while he was sometimes average or less in matters of judgment, reliability, cooperation, and compassion with subordinates.
(j) Each fitness report contained a “Comments” section in which the rating officer discussed strengths, special accomplishments, contributions to the service, and minor weaknesses. The person that collectively emerges from these comments (with sometimes contradictory and fluctuating characteristics depending on the reaction of the individual
(k) Of all the comments contained in plaintiff’s fitness reports, the least flattering were those on plaintiff’s fitness report for the period July 1, 1965-February 19, 1966, by Comdr. Lademan. This is the period during which the missile incident of January 19, 1966, and the Board inquiry of January 22-February 17, 1966, occurred, in which both plaintiff and Comdr. Lademan were named as Parties.
(1) The only reference in plaintiff’s file of fitness reports to the subject of the Board proceeding was in the fitness report by Comdr. Drake for the period February 20, 1966-June 30,1966, in which the rating officer observed that “During a major part of this period Lt. Brenner has been affected by his prior participation in an investigation to which he was a party, and in which he feels apparently that he was done a grave injustice.”
24. Plaintiff was considered but not recommended for promotion to lieutenant-commander by a Selection Board which met from September 21 to October 22, 1965. This was not considered a “pass-over” on plaintiff’s record, since he was below-the-promotion-zone on that occasion.
25. A Selection Board for the recommendation of line officers of the Navy for temporary promotion to lieutenant-commander met from September 27 to November 10, 1966. The Board consisted of eight members and 14 alternate members, all of them captains. Junior officers were appointed as recorder and assistant recorders. The “precept” convening the Board gave a quota of 324 promotions to lieutenant-commander, with limits as to certain categories, and stated that “The fact that an eligible officer is above, within, or, below the promotion zone is immaterial to the determination of whether that officer meets the criteria established by law for his category.” However, a limit of 5 percent was imposed for promotion of officers below the promotion zone. (Whether this limit applied to the preceding Selection Board in 1965 in which plaintiff was below-the-zone as referred to in finding 24, is not disclosed by the record.) Eighty to 90 percent of the candidates before the 1966 Selection Board were recommended for promotion. Plaintiff was passed-over. A graduate of the Naval Academy would normally be given preference
26. The next Selection Board for the lieutenant-commander promotion list met from October 3 to November 21,1967. It was composed of eight members and 14 alternate members, all captains. Its quota of promotions was 943. As in the case of the 1966 Board, a limit of 5 percent was imposed on the number of officers recommended for promotion who had been passed-over once before. The 1967 Board recommended 80 to 90 percent of the candidates for promotion. Plaintiff was again passed-over. Under 10 U.S.C. § 6382 a second pass-over for lieutenant-commander selection automatically results in separation the next succeeding June 30.
27. A Captain Meyer was an alternate member of plaintiff’s 1967 Selection Board. Meyer was known to plaintiff by reputation as an officer considered to be an authority in naval missiles and one who was familiar with the missile accident on the Luce because he had been involved in the investigation of the accident for BuWeapons. Plaintiff testified to his belief that Meyer either passed on his promotion candidacy at the 1967 Selection Board proceeding, or had been consulted by the members of that Board who did. By affidavit in the record Meyer conceded that he had participated in the investigation of the Luce accident, but denied having seen a copy of the report of the Board of Investigation concerning it, or having known of any consequences therefrom to plaintiff. While the accident was well known in the “missile Navy” circles, as an alternate member of the 1967 Selection Board, he denied having discussed the accident with the 1967 Selection Board members or the plaintiff’s connection with it, nor did he hear any mention of the accident in the course of the Selection Board proceedings. There is no evidence to the contrary. Moreover, Meyer was not a member of the 1966 Selection Board where the plaintiff alleges he was first passed-over due to the Selection Board’s knowledge of the missile accident, so Meyer as a source of such information would seem remote.
28. (a) Lt. Comdr. Saunders was a witness called by plaintiff. For the last 9 years of his naval service (until 1968) he
(b) Plaintiff’s second Selection Board (1967) would know that plaintiff had been passed-over by the first Board because of his “lineal position” on the roster of candidates, arranged according to dates of rank. Although the fact of having been passed-over by one Board should not influence the individual’s selection on his next Board, as a practical matter he is more likely than not to be passed-over by the second Board because the derogatory information in his file which caused the first pass-over is still in his file. Only a small percentage of officers with one pass-over succeed the second time.
(c) Plaintiff’s pass-over problem is somewhat unusual because there are not many officers on a promotion list who are subjects of an investigation in process but not completed at the time of Board action. The investigation of the missile mishap on the Luoe was technically completed February 23, 1968, so it was pending during both the 1966 and the 1967 Selection Board meetings.
29. (a) Comdr. Saunders has no recollection that either the 1966 or 1967 Selection Board asked him for a record of
(b) Comdr. Saunders had no recollection of being asked by the 1966 Selection Board for the Board of Investigation record concerning plaintiff. He recalls that in late 1966 or early 1967, after the 1966 Selection Board had passed-over plaintiff the first time, the plaintiff asked him if the Board had requested the production of the Board of Investigation
1966 Selection Board had asked him (Comdr. Saunders) for the Board of Investigation record, but he had refused to provide it because the investigation was not at that time complete). Note that Comdr. Saunders considers such an investigation complete when a letter of censure is issued, apparently even when an appeal is pending, although his testimony was contradictory on this point. The fact that such a record was classified Secret would make no difference.
(c) According to Comdr. Saunders, Board of Investigation reports as to completed investigations involving a promotion candidate, deposited with JAG as a “matter of interest”, were routinely made available to Selection Boards. It is clear that JAG had on file at all times a complete copy of the Board of Investigation record, and also a letter of January 28, 1967, from Admiral Buckner referring to the fact that a letter of instruction had been issued to plaintiff.
30. A “Security Termination Statement” dated February 17, 1966 (at the conclusion of the Board of Investigation proceeding) was issued to plaintiff. It refers specifically to the Informal Board of Investigation to which plaintiff was a Party. This statement was available to plaintiff’s Selection Boards.
31. Although the correspondence record is incomplete, on the basis of the clues provided in the correspondence that is in the record, coupled with the testimony of Comdr. Saunders, it is reasonable to conclude that the 1966 Selection Board knew from references in the records known to be before it, that plaintiff had been a Party to an investigation. The 1967 Selection Board would have had more certain reason to demand the complete record of the Board of Investigation proceeding and its sequelae because Admiral Beioh’s letter to the
1967 Selection Board on plaintiff’s behalf (finding 3(d), supra), made specific reference to the fact. These conclusions are necessarily circumstantial because proceedings of Selection Boards are secret and not recorded.
32. On December 6,1967, after having been passed-over by the second Selection Board, and having been transferred to a Navy Sub-Board of Inspection and Survey at Newport Naval
33. In response to a question by the trial commissioner in the course of trial, the plaintiff testified that if he were offered reinstatement in the Navy he would decline. His age, lengthy interruption of active duty, and the ineradicable blotting of his copy book would make his advancement too unlikely as a retread. He is now selling real estate.
34. From a complete absence of evidence to that effect, it is concluded that plaintiff never applied for relief to a Board for Correction of Naval Records.
35. There is no evidence that the two selection boards that failed to recommend the plaintiff for promotion considered any derogatory material or facts outside of his fitness reports, personnel file, and official record furnished to such boards in accordance with the provisions of the statutes and Bureau of Naval Personnel Manual.
CONCLUSION OE LAW
The court concludes as a matter of law upon the foregoing findings of fact, which are adopted by the court and made a part of the judgment herein, that the actions of the two selection boards in failing to recommend the plaintiff for promotion to the rank of lieutenant commander were neither arbitrary, capricious, nor contrary to law, and that the plaintiff is not entitled to recover active duty pay or retirement pay, and his petition is dismissed.
In a related part of his opinion, the trial judge said: “The evidence In Brenner’s case is somewhat murky as to precisely what material his Selection Boards considered relating to his Board of Investigation participation and the subsequent censure, but the wide distribution of the damaging Board of Investigation record throughout the missile Navy, the deposit of the entire record and its sequelae with Navy JAG and submission of that record to BuPers for deposit in plaintiff’s official record as a ‘matter of interest’ at the direction of the admiral who had convened the Board of Investigation (although BuPers declined to retain the record after both of plaintiff’s successive Selection Boards had passed him over), [footnote omitted] produces the circumstantial but entirely reasonable conclusion that plaintiff’s Selection Boards were sufficiently imbued with derogatory data concerning the plaintiff’s Board of Investigation involvement to influence their judgment to the detriment of plaintiff’s chances for promotion to lieutenant-commander.’’
No Navy directive, regulation, or authoritative statement has been presented to us -which states or implies that board members may consider any specific information about the officer which is not reflected in the record before them. The whole tenor of the statute-plus-reg-ulations is to the contrary.
These two sentences are based on allegations In paragraphs 11 and 12 of the petition which defendant admitted In its answer. However, plaintiff's exhibit L, “Party’s Written Acknowledgement of Advice on Rights and Waivers Thereof” dated February 4, 1966, bears the typed signature of plaintiff witnessed by the typed signature of Capt. Upshaw, a member of the Board. It appears to be a conformed copy of an original and, if so, represents that plaintiff accepted his designation as a Party at a time when the admission in the pleadings has him at sea. The conflict is curious but not important
Buckner found that four derelictions recommended by the Board were not supported by the record, and disapproved that portion of the Board recommendation.
Despite his predicament, note in finding 3(b), supra, plaintiff was apparently performing well enough as weapons oflicer on the Luce to merit an indirect commendation by Admiral Ruckner for obtaining an Excellent rating for the Luce during its maneuvers on that cruise. Note also plaintiff’s fitness report for the period July 1 to November 28, 1966, which, along with pluses and minuses in plaintiff’s performance, quotes a chief inspector’s comment after the Luce had received an Excellent grade, that “The performance and positive attitude of the Weapons Officer [the plaintiff] is especially noteworthy and a prime factor in the ship’s high state of readiness.”
As observed In finding 3(b), supra, plaintiff was preoccupied on November 22 and 23, 1966, in maneuvers on the Luce which won the ship an “K” rating from Admiral Ruckner, an accomplishment largely attributable to plaintiff’s functioning as weapons officer.
Commander Lademan, whose promotion to captain had been approved by tbe Selection Board in tbe summer of 1966 (see finding 12, supra), would not be affected to tbe same extent as plaintiff by tbe deposit of tbe Board record in bis record as a matter of interest. Plaintiff was passed-over by tbe Selection Boards wbicb convened in 1966 and 1967 (see findings 25 and 26, infra). By “official record” it is assumed that Admiral Ruckner’s letter to JAG meant that be suggested that the Board record would be filed in plaintiff’s record in BuPers. There is no indication that a letter of instruction was issued to Lademan, or that tbe Board recommendation found him at fault re tbe missile accident, although be was a Party to tbe investigation and attended all sessions of tbe Board accompanied by counsel. Tbe Board record is not in evidence.
Note that on the same day, January 28, 1967, Admiral Ruckner had recommended to JAG that It deposit the Board record In plaintiff’s official record as “a matter of interest,” and that JAG make Ruekner’s letter to JAG a part of the Board of Investigation record.
It Is not known what system the Selection Board uses to analyze a promotion candidate’s fitness report. This analysis does not purport to reflect the individual's standing vis-a-vis other candidates whose respective fitness reports are not before us. It merely compares the individual’s point standing vis-a-vis a hypothetical median, which median is not intended to reflect the average fitness report standing of the roster of ofiicers before any Selection Board. It is a theoretical exercise. Cf. a comparable effort using numerical equivalents in analyzing fitness reports appearing in finding 13 of Norman v. United States, 183 Ct. Cl. 41, 392 F. 2d 255 (1968), cert. denied 393 U.S. 1018 (1969).
Comdr. Lademan gave plaintiff a “Satisfied to have” rating under “Desirability”, which is next to the lowest rating available (“Prefer not to have”), although in the immediately preceding period Comdr. Lademan had rated plaintiff as “A very fine officer of great value to the service”, which is next to the highest rating available under the Desirability category. Since the lower rating of February 19, 1966, was made 2 days after the adjournment of the Board proceeding, it is concluded that it influenced the low rating, up until then this was the lowest rating the plaintiff had ever received.
