209 Ct. Cl. 352 | Ct. Cl. | 1976
delivered the opinion of the court:
In this military case plaintiff asks us to void the action of the Secretary of the Air Force in accepting his tender of resignation, which was submitted on May 26,1967, and finally approved effective July 31 of the same year. Plaintiff was honorably discharged. Pie asserts that the Air Force violated applicable procedural regulations but, fundamentally, that coercion and duress practiced upon him by his commander induced him to resign against his will. For the reasons discussed below, we conclude that the plaintiff’s motion for summary judgment should be denied and the cross-motion of defendant United States for summary judgment should be allowed. The petition is dismissed.
Prior to the effective date of his resignation, plaintiff was a first lieutenant in the United States Air Force Reserve. Plaintiff had been awarded a commission as a second lieutenant upon successful completion of training in Officer Training School on November 10, 1965. Thereafter, he enrolled in a course of navigator training which he did not complete, electing to seek “self-initiated elimination” for personal reasons.
Plaintiff’s most serious difficulties with the Air Force awaited him at his next duty station. Detailed to a satellite activity of the 1100th Air Base Wing located at Travis Air Force Base, California, plaintiff embarked upon what he hoped would ultimately become a strong administrative specialty as an Armed Forces Courier Service officer. Such courier officers commonly are assigned to effect timely and
Because of these circumstances, the Armed Forces Courier Service detachment ended plaintiff’s tenure as a courier officer, and effected his transfer on a loan basis to the host
Plaintiff’s affidavit tells us that during the time he served under Lieutenant Colonel Pond he was interviewed three times by that officer relative to his future in the Air Force. At the first of these meetings Colonel Pond gave him “a very strong suggestion” that he should resign his commission. Plaintiff says that he was greatly distressed and that in a fit of despair he did submit an informal letter of resignation. Colonel Pond would not accept the letter since it was not in the form specified by the applicable Air Force regulation, AFB, 36-12. Pond showed plaintiff the proper form, citing AFK, 36-12, paragraph 16m, as authority for discharge.
These hopes were shattered once and for all, we are told, when Colonel Pond, during the third interview,
Pertinent parts of the letter of resignation State:
1. 1,1/Lt Norman C. Murphy, FV3153617, under paragraph 62, AFR 36-12, hereby voluntarily tender my resignation from all appointments in the United States Air Force.
2. The reasons for the submission of this resignation are as follows:
❖ * ❖ ❖ H* # ❖
c. * * * Although I understand that, at this time, no action has been initiated under any Air Force regulation for my dismissal, I feel that the long standing investigation regarding a security clearance has severely prejudiced my career and may well continue to do so in the future. Therefore, I believe it in the best interests of both the Air Force and of myself that this resignation be accepted.
*358 3. I understand that, if this resignation is accepted, I will be honorably discharged from all appointments held by me.
Lieutenant Colonel Pond, in an undated endorsement to plaintiff’s foregoing tender of resignation, recommended approval of it, saying of plaintiff:
* * * He is of high intelligence but extremely naive. He has an outstanding ability to Staff but none to command. He entertains extremely liberal ideas and therefore is unable to lead. He is unable to gain the respect of his superiors or ¡his subordinates. I do not recommend him for an Air Force career and believe it would be in the best interest of the USAF to release him at this time.
Colonel Pond continued by commenting that he had 8 months in which to observe plaintiff’s performance of duty and, while commending plaintiff on work assignments requiring minimum contact with others, lamented his lack of courtesy, discretion, and general attitude. I-Ie said that plaintiff disrupted work progress ¡and caused personnel friction, interfered in matters that were not his concern, alienated all who came in contact with him, caused department heads to request that they be relieved of him, and entertained ideas and beliefs not consistent with the officer image. “His mannerisms and ideas have raised many questions by other officers at all levels, as to his suitability in the officer corps.”
It is significant to note before going further that on June 6, 1967, Colonel Pond also submitted an Officer Effectiveness Report (OER) for plaintiff covering the period between January 27, 1967, and June 5 of the same year. In the “comments” section of that report Pond included remarks quite similar to the recitals he had used earlier on the first endorsement of plaintiff’s tender of resignation.
Returning momentarily to the time of plaintiff’s resignation, plaintiff attaches some importance to the fact that the command which added a fourth endorsement and forwarded his tender to the ‘Secretary of the Air Force recommended that it be approved not under paragraph 62, as requested, but under paragraph 16m of AFR 36-12. It is evident that this recommendation was accepted, as plaintiff’s report of discharge, form DD 214, cites paragraph 16m of the applicable regulation as authority. We do not think it open to serious doubt that the command attaching the fourth endorsement appropriately changed the paragraph from 62 to 16m, since the wording of plaintiff’s tender of resignation asked for “resignation from all appointments in the United States Air Force,” and not simply for release from extended active duty.
Plaintiff’s resignation, effective July 31, 1967, occurred less than 2 years from the date of his commission as a reserve officer, and more than 2 years prior to the expiration of his 4 years of initial obligated active service. Plaintiff tells us that he has taken his grievances before the Air Force Board for Correction of Military Records no fewer than four times, although the record before us contains the proceedings of only two such appearances. As hereinbefore noted, plaintiff did manage to convince the board that one OER should be voided. All other requests for relief were denied, including plaintiff’s bid for back pay and allowances for which he now brings this suit.
I
Plaintiff’s first theory of liability originates with the action of the command which attached a fourth endorsement to
Plaintiff states that at the instant authorization for separation was changed from paragraph 62 to paragraph 16m, his resignation by operation of law became “involuntary.” He analogizes Iris tender .of resignation to an offer to enter a unilateral contract, which offer could be accepted by the offeree only by effecting his resignation (or release from active duty) upon precisely the terms embodied in his offer. As an afterthought in his reply to defendant’s cross-motion for summary judgment plaintiff adds the observation that an “involuntary” resignation, such as his, must be processed under other paragraphs of AFP 36-12 with opportunity for hearing and other safeguards.
We do not agree that plaintiff’s discharge became involuntary simply because an unknown administrative officer at a higher level in the chain of command changed the authorization reference from one paragraph to another, where this correction of an apparent clerical error obviously was calculated not to work any hardship or forfeiture on plaintiff, but merely to harmonize the regulation cited with the narrative substance of his tender of resignation. In short, plaintiff got what he asked for — “resignation from all appointments in the United States Air Force.”
Even if we were willing to say that plaintiff’s first theory has some legal merit, recovery would not follow. To sustain a recovery based upon administrative impropriety a plaintiff must demonstrate the manner in which he has been prejudiced thereby. Hart v. United States, 204 Ct. Cl. 925, cert. denied, 419 U.S. 1049 (1914); Haynes v. United States, 190 Ct. Cl. 9, 418 F. 2d 1380 (1969); OoTien v. United States, 177 Ct. Cl. 599, 369 F. 2d 976 (1966), cert. denied, 387 U.S. 917 (1967). Had plaintiff been released from active duty,
Plaintiff’s first contention must be rejected.
II
Next, plaintiff argues that the Air Force violated applicable service regulations in permitting him to resign under any paragraph of AFE. 36-12, since he had not completed his initial tour of obligated active duty. It is undisputed that at the time plaintiff accepted his commission, he incurred a 4-year active duty commitment. The 4-year period would have expired on November 9, 1969, or more than 2 years after the effective date of his resignation.
On this point we agree with the defendant. Under paragraph 14(a) of AFE 36-12, as in force at the operative time, in cases such as this one, tenders of resignation could be submitted for special consideration notwithstanding the active-duty service requirements set out in other directives.
III
Plaintiff also asserts that the Secretary’s action in accepting his tender of resignation must be voided, because it was taken on the basis of Lieutenant Colonel Pond’s undated first endorsement. We have heretofore noted that an OEE filed at about the same time by Colonel Pond, and which contained language in some respects similar to that which found its way into the endorsement, was declared null and void in 1970 by
Discovery of the legal meaning of these facts requires reference to Hankins v. United States, 183 Ct. Cl. 32 (1968). In that case an Air Force medical administrative officer, a career regular Air Force officer, tendered his resignation, allegedly due to coercion and pressure of two superiors. "When the two officers rotated to new duties at other stations, the source of pressure disappeared and plaintiff by letter sought to withdraw his tender of resignation prior to its final acceptance. Unfavorable OERs had been filed against Hankins while serving under the officers who later departed from his station. Officials in the chain of command forwarding his request to withdraw the resignation recommended disapproval in light of these unfavorable OERs, thus standing by initial recommendations in favor of plaintiff’s resignation. The plaintiff was ultimately discharged over his objection in accordance with his original tender of resignation.
In administrative proceedings the Air Force Correction Board agreed that the OERs were unjust and should be stricken, but nevertheless declined to authorize Hankins’ reinstatement. This court held that the Correction Board’s action in refusing reinstatement while striking the OERs was arbitrary and unfounded. 183 Ct. Cl. at 38. The court entertained the view that where an administrative decision (in that case, refusal of a request to withdraw one’s resignation) rests significantly upon improper material (unjust OERs, later relied upon in unfavorable endorsements), it may not be permitted to stand. Id.
Hankins is somewhat akin to the instant case, for in 'both controversies approval of a resignation request over allegedly tainted endorsements is attacked. But, that is where the parallel ends. In Hankins the endorsements recommending disapproval of plaintiff’s bid to withdraw his resignation referred specifically to OERs themselves, which were subsequently voided by the Correction Board because they “graded him unjustly and far too low.” 183 Ct. Cl. at 35. In this case, however, the endorsement did not refer to an OER itself which later was voided. The undated first endorsement
IV
Finally, plaintiff complains in an affidavit that his resignation was the product of coercion and duress, and, as such, a legal nullity. His petition refers to “mental distress.” His brief says that he was “bullied out” by Lieutenant Colonel Pond. We think that, reading the record as a whole, this assertion is of the essence to plaintiff’s claim even though his counsel has not chosen to brief the issue separately and distinctly from the other problems present in this case.
To make out a sufficient case for the avoidance of administrative action on the ground of duress, plaintiff must demonstrate the existence of three elements:
*364 * * * (1) tbat one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party. * * *. [Fruhauf Southwest Garment Co. v. United States, 126 Ct. Cl. 51, 62, 111 F. Supp. 945, 951 (1953).]
Although these rules first found expression in this court in a contract case, we have applied them time and again in back pay controversies. E.g., Dounias v. United States, post at 688; Christie v. United States, 207 Ct. Cl. 333, 518 F. 2d 584 (1975); Leone v. United States, 204 Ct. Cl. 334 (1974); Dorl v. United States, 200 Ct. Cl. 626, 633, cert. denied, 414 U.S. 1032 (1973).
Construed in the light most favorable to plaintiff, we do not think that the facts placed before us in plaintiff’s affidavit demonstrate that, objectively speaking, plaintiff had no alternative other than to resign his commission. On the contrary plaintiff could have stood firm and opposed the security investigation with which he says Colonel Pond threatened him. He still maintains that all accusations of wrongdoing against him were false. In these circumstances, a claim of duress cannot be sustained.
In summary, plaintiff’s resignation did not become involuntary nor was there a violation of regulations merely because the paragraph of AFB 36-12 under which he was discharged differed from the one he cited in his tender of resignation. Plaintiff suffered no legal injury and demonstrates no monetary prejudice from this clerical adjustment to conform to the reality of his request to resign “from all appointments in the United States Air Force.” The Secretary of the Air Force did not err in permitting plaintiff to resign before the expiration of his initial 'active duty obligation since exceptions for unusual circumstances permit such resignations and plaintiff described such circumstances in what he called at the time his voluntary resignation, heretofore quoted. The Secretary’s acceptance of plaintiff’s resignation was not voided retroactively when the Correction Board decided to remove plaintiff’s OEE covering the period between January 27 and June 5, 1967, for reasons unrelated to plaintiff’s fitness to serve. Finally, plaintiff has not demonstrated the presence of legally actionable duress in the matter
Plaintiff's affidavit in support of Ms motion for summary judgment and in opposition to defendant’s motion, states: “It is true that I occasionally asked persons about their homosexual experiences. But, I never invited or encouraged such behavior. Had I done so, I am sure I would have been jailed instantly, what with all the investigation into my background. In fact, 1 had done my undergraduate thesis on homosexuality. After the Air Force, I did my doctorate dissertation on inherited biological traits that influence homosexual behavior.”
This regulation, as then in force, provided in part:
“m. Other Miscellaneous Reasons. * * * '[0]fficers who are not eigible to tender their resignations under any criteria contained in * * * [other subpara-graphs of paragraph 16, AFP 36 — 12] may tender their resignations under this paragraph, if they can establish that their separation from the service will be in the best interest of the Air Force. Each resignation tendered under this paragraph will be considered on the individual merits of the case and normally will not be approved unless it is established that separation of the officer will be in the best interest of the Air Force. * *
Plaintiff’s affidavit does not indicate what occurred during his second meeting with Lieutenant Colonel Pond.
APR 35 — 62 of August 11, 1965, paragraph 3a, provides, in part:
“3. Policy :
“a. No person will be * * * retained in a military status in the Air Force if his * * * retention is not clearly consistent with the interests of national security. In order to maintain the effectiveness of the Air Force, prompt action must be taken to insure that no person is * * * retained in the Air Force who lacks the security qualifications necessary for membership in the Air Force.”
Paragraph 8a of the same regulation states that when facts come to the attention of an officer’s parent command indicating a potential security risk, the commander with clearance authority is to forward a request for investigation to the Office of Special Investigations (OSI).
Paragraph 62 of AFR 36-12 differs from paragraph 16m in that the former provides only for release from extended active duty in the best interests of the Air Force, while the latter provides for outright resignation of all appointments. See note 2, supra. Paragraph 62 reads as follows:
“62. Release for Other Miscellaneous Reasons. Officers who are not eligible for release under any other criteria contained in this regulation may apply for release from extended active duty under this paragraph.
“a. Applications will be approved only if it is established that release of the officer will be in the best interests of the Air Force.
,“b. Applications will not be approved in any instance where the records indicate that elimination action under any other regulation is appropriate. (SDN 610).”
While the endorsement was undated, the record supports the inference that it was completed and sent to higher authority within the chain of command between May 26, 1967 (date of tender) and June 6, 1967 (date of second endorsement).
See note 5, supra.
“a. Time Limitations. To preclude unanticipated and unprogrammed loss of trained personnel, officers who desire to tender their resignations under paragraph 16 * * * m may do so only within the time limitations specified below, to be effective as indicated. Exceptions may be made only when unusual circumstances exist which would warrant submission of resignations for special consideration.”