183 Ct. Cl. 32 | Ct. Cl. | 1968
delivered tbe opinion of tbe court:
Equipped witb findings made and corrective action taken by tbe Air Force Board for tbe Correction of Military Records (approved by the Secretary), plaintiff seeks further relief which he says the Air Force should have given him as a matter of law. We agree and hold that the service could not stop where it did in adjusting his status partially, but was required by its own determination to go the whole way.
The parties have both moved for summary judgment, presenting as our record the two decisions of the Correction Board, several of the documents before it, and the Air Force actions following those proceedings. The Board’s findings and the record show this:
But while the first two of these derogatory reports were still outstanding, plaintiff became seriously disturbed at the antagonism toward him by the two field-grade officers whose actions later caused the Board to nullify the effectiveness reports. In October 1961 he wrote to The Surgeon General of the Air Force detailing the treatment he had received at the hands of the colonel and the major (the latter subsequently promoted to lieutenant colonel), and asking for a transfer. The general’s deputy replied that Captain Hankins’ letter “was most informative and interesting”, referred to “your fine performance of duty as indicated by your records”, and said that his personal conflict would soon resolve itself with the pending rotation of the colonel in March 1962.
Under Air Force regulations (A.F. Eeg. No. 36-12, July 1, 1960), a resignation cannot be automatically effective. It has
Sometime before the resignation reached the stage of being ready for action in Washington, plaintiff (in August 1962) sought to withdraw his tender. His reason was that both of the harassing superiors had now left the post — the first in the spring of 1962 and the other in the summer of that year — and a bright new day had dawned. He put it this way in his letter of withdrawal: “[S]ince submission [of the tender of resignation], conditions which prevailed at the time no longer exist. My family and I are most pleased with the recent turn in events. My confidence in military justice and the integrity of its officers has been restored. * * *”
Under A.F. Reg. No. 36-12, sufra, a withdrawal of a tender of resignation, like the tender itself, is not self-executing. The resignation cannot be withdrawn without the consent of the Secretary of the Air Force (or his designated representative) and has to be submitted through channels. The regulation also provides that “ [a]ny indorsement recommending disapproval [of a withdrawal] will state the reasons therefor.” Hankins’ local commanders (in Turkey) concurred in his withdrawal of the resignation,
In his two proceedings before the Correction Board in 1964 and 1966, plaintiff succeeded (as we have already indicated) in having all the effectiveness reports from June 1960 to December 1962 voided, but he failed to be restored to his regular commission and to active duty.
In our opinion he must prevail here, and should have been restored as a result of the Correction Board proceedings, because the Secretary of the Air Force acted on null and void efficiency records when he rejected plaintiff’s withdrawal of his resignation. We know that the report for June 1961-June 1962 was before the Secretary because the European commander expressly referred to that document in recommending disapproval of Captain Hankins’ retraction of the resignation. Probably the report for June 1960-June 1961 was also part of the material considered, both because it was an official personnel record and, more specifically, because it was mentioned in plaintiff’s letter to The Surgeon General and implicitly referred to in his resignation letter (to both of which documents the European commander pointed). These two efficiency reports have now been labeled by the Air Force (through the Correction Board proceedings) as unjust and void. An action resting significantly on such improper materials, as was the Secretary’s in this case, cannot be permitted to stand. It is, of course, a general principle that an administrative decision, even a discretionary one, grounded in considerations which the tribunal should not take into account, or evidence or materials it should not weigh, is vulnerable as arbitrary and unfounded. Cf. Harmon v. Brucker, 355 U.S. 579 (1958); Hamlin v. United States, decided this day, post, at 137; Motto v. United States, supra note 1, 172
This fundamental doctrine is tied even more directly to this case by the clause in A.F. líeg. No. 36-12, supra, demanding that “[a]ny indorsement recommending disapproval [of a withdrawal of resignation] will state the reasons therefor” (approving indorsements, on the other hand, are not required to state reasons). The obvious aim of this provision is to inform the Secretary of adverse factors deemed important by a lower-level command. These matters the Secretary is plainly supposed to take into account. But in this instance the only disapproving indorsement, that of the European command, gave as one of its prime “reasons” a consideration— the unfavorable effectiveness reports — which we must now take as void, incorrect, and unjust. The Secretary was thus specifically asked to study factors which should not have been considered or relied upon.
It is theoretically conceivable that the Secretary’s action in rejecting the withdrawal was not based at all upon the European commander’s comment or on the voided records, but there is nothing to suggest that this was or could have been so. The Secretary gave no reason, and therefore it is entirely sensible to believe that he was influenced, as would be natural, by the void records before him and the adverse recommendation of the European commander. Cf. Hertzog v. United States, 167 Ct. Cl. 377, 385 (1964). If the Secretary had himself given some separate reason, the case would be quite different; however, that is not at all what happened. The Secretary acted in such a way as to compel the conclusion that he was influenced by the invalid records.
There is, moreover, no reason to assume that, if he knew the true facts at that time, the Secretary would have rejected the plaintiff’s retraction of his resignation.
The only untainted reason the Correction Board gives for failing to restore plaintiff is, as we understand it, that his civilian work and his Air Force reserve duty since his discharge in January 1963 show that he is now so successfully adjusted to civilian life that justice does not require restoration at this time to the military. This might very well be a pertinent factor if plaintiff were seeking a new commission or reinstatement in an old commission from which he had been lawfully separated, but it is wholly irrelevant to the issue of whether he was legally discharged in 1963. His post-discharge history has no bearing on that question.
We hold, for these reasons, that plaintiff was not validly separated in 1963. Nor has he been legally discharged since that time. “[T]he only way an officer of the armed services can be dismissed therefrom is by those methods specifically spelled out by the statutes.” Boruski v. United States, supra note 1, 140 Ct. Cl. at 6, 155 F. Supp. at 324. As an officer of the regular Air Force, plaintiff could be involuntarily separated only under the very limited circumstances recognized by Congress. See 10 U.S.C. § 1161 (“Commissioned officers’ limitations on dismissal” — discharge as a result of a court-martial or in wartime).
It follows that plaintiff’s motion for summary judgment must be granted and the defendant’s denied. He is entitled to recover pay and allowances since his separation, less appropriate offsets, and judgment is entered to that effect. The amount of recovery will be determined under Eule 47(c).
In a number of instances we have held that the Correction Board (or comparable tribunal) stopped too short, and the court was therefore compelled to implement the administrative findings and extend the Board’s action. E.g., Boruski v. United States, 140 Ct. Cl. 1, 155 P. Supp. 320 (1957) ; Egan v. United States, 141 Ct. Cl. 1, 158 F. Supp. 377 (1958) ; Schiffman v. United States, 162 Ct. Cl. 646, 319 F. 2d 886 (1963) ; Barnes v. United States, 163 Ct. Cl. 321 (1963) ; Lerner v. United States, 168 Ct. Cl. 247 (1964) ; Motto v. United States, 172 Ct. Cl. 192, 348 P. 2d 523 (1965) ; Wason v. United States, 179 Ct. Cl. 623 (1967) ; Cosgriff v. United States, 181 Ct. Cl. 730, 387 P. 2d 390 (1967) ; Hamlin v. United States, decided this day, post, at 137.
We use only the findings in b< th reports of the Board (the first made in 1964 and the second in 1966), the allegations of the petition admitted by the answer, and the undisputed documentary evidence before the Board.
The other biased superior remained at the hospital until the summer of 1962.
Later, in a letter to the Correction Board, the local general said that plaintiff had been working “for an incompetent, vindictive supervisor backed up by a listless hospital chief.”
The Air Force did give him a reserve commission.
The same conclusion applies to the European commander if the resignation was still in his hands, under A.E. Reg. No. 36-12, supra, he had express authority to approve the withdrawal request if the resignation was in his possession and had not been forwarded to higher headquarters.
In this respect reserve officers get less protected treatment. See 10 U.S.C. §§ 1162-63 (1964) ; Motto v. United States, supra, 172 Ct. Cl. at 198-99, 348 F. 2d at 526-27; Roberts v. Vance, 343 F. 2d 236 (C.A.D.C. 1964).