Braddock v. United States

9 Cl. Ct. 463, 1986 U.S. Claims LEXIS 915
CourtUnited States Court of Claims
DecidedJanuary 31, 1986
DocketNo. 335-82C
StatusPublished
Cited by19 cases

This text of 9 Cl. Ct. 463 (Braddock v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Braddock v. United States, 9 Cl. Ct. 463, 1986 U.S. Claims LEXIS 915 (cc 1986).

Opinion

OPINION

YOCK, Judge.

This action arises from the involuntary release of the plaintiff, Anthony J. Braddock, from active duty with the United States Army on March 1, 1978. The plaintiff now seeks reinstatement to active duty in the grade of major, correction of his official military service records, and appro[465]*465priate back pay and allowances. The matter is currently before the Court on the parties’ cross-motions for summary judgment. The material facts are not in dispute.

For the reasons discussed herein, the defendant’s cross-motion is granted, the plaintiff’s cross-motion is denied and the complaint is to be dismissed.

Facts

The plaintiff, Anthony J. Braddock, served on active duty as an officer of the U.S. Army some 16 years, beginning on May 28, 1962, and ending with his involuntary release as a major on March 1, 1978. During this time, he served in a variety of assignments and was promoted through the ranks to permanent captain and, subsequently, to the temporary grade of major. Plaintiff was then considered for promotion to the permanent grade of major by the 1976 Regular Army promotion selection board convened on February 8, 1976. He was, however, not selected by that board. Plaintiff was again considered for promotion to permanent major by a Regular Army promotion selection board convened on June 8, 1977, but again, he was not selected for promotion. Based upon plaintiff’s two nonselections for promotion to major, he was involuntarily discharged from the Army on March 1, 1978, pursuant to 10 U.S.C. § 3303(d) (1976).

Shortly before his separation on March 1, 1978, the plaintiff petitioned the Army Board for Correction of Military Records (“Board”) on October 15, 1977, for the correction of his records. He argued before the Board, inter alia, that some half dozen of his Officer Efficiency Reports (“OERs”), appearing in his record that was before the 1976 and 1977 selection boards, had been prepared in violation of Army regulations and had, therefore, prejudiced his consideration for promotion by these boards. The plaintiff claims that because the 1976 and 1977 selection boards had the defective OERs before them for consideration, he was not given the “fair and equitable” consideration for promotion called for by 10 U.S.C. § 3442(c) (1976) and appropriate case law. See Sanders v. United States, 219 Ct.Cl. 285, 302, 594 F.2d 804, 820 (1979), and cases cited therein.

After due consideration, including granting the plaintiff an oral hearing in which he was represented by able counsel, the Board recommended to the Secretary of the Army in its decision of August 20,1980, that four OERs (out of 6 requested) be removed and expunged from his records.1 The first OER ordered removed was a report prepared on the plaintiff for the period of June 23 through October 19, 1970 (OER #2). The Board found that during the rating period, the plaintiff had not served under any one rating official for more than 90 days as called for by Army regulations and, thus, the OER should be removed. The report reflected an overall score of 94/94 (out of a possible 100/100) and indicates, pertinently, that the applicant performed in a fully effective manner in a position for lieutenant colonel and that the plaintiff exhibited the maturity and judgment not usually found in an officer serving in the grade of major. The Board ordered the report removed even though, in its view, it did not have an adverse impact on the plaintiff’s military career. The second OER ordered removed was a report prepared on the plaintiff for the period of August 9, 1971 through May 3, 1972 (OER # 3). The Board found that there had been a change in policy as to who would rate the plaintiff during this period of time and that neither the plaintiff nor his branch chief (who thought he was the rating official) knew about the change of policy. This violated Army regulations that required the Army to keep officers informed of who would be their rating official. In addition, [466]*466the Board noted an indication of a personality conflict between the plaintiff and the official who ultimately rated him. The report reflects an overall score of 90/94 (out of a possible 100/100), indicates that it was the plaintiff’s first assignment to a high level staff, that, nonetheless, through diligent effort on his part and a willingness to accept guidance and suggestions, he had performed his duties in a superior manner. Under the circumstances, the Board considered it appropriate to remove the OER from plaintiff’s records. The third OER ordered removed was a report prepared on the plaintiff for the period of November 15, 1972 through April 30, 1973 (OER #4). The Board found that during this time period the Army had announced a new rating system that had the goal of keeping the numerical ratings within certain bounds for each grade, and the plaintiff’s commanding general had issued orders to all raters to live up to these more realistic, essentially lower scoring guidelines. The report reflected an overall score of 172 (out of a possible 200) and indicates that the plaintiff was an extremely conscientious officer who handled many varied and complex tasks simultaneously with splendid results. Since the Board found that, absent the command guidance, the plaintiff’s score may have been higher, it concluded that it would be appropriate to remove the OER from the plaintiff’s record.2

The fourth OER ordered removed was a report prepared on the plaintiff for the period of August 30, 1976 through August 29, 1977 (OER # 6). The Board found, based on testimony given at the hearings, that the rating official had developed a considerable animosity toward the plaintiff during the rating period, and that others who worked closely with the plaintiff had indicated that the plaintiff actually had performed his duties in an outstanding manner. Since the rating official’s animosity may have affected his ability to render a fair and meaningful report, it ordered the OER removed. The report reflected a rating of 158 (out of a possible 200) and indicated that the plaintiff’s manner of performance deteriorated significantly during the period, that he did only enough to get by, tended to blame others for actions, had difficulty completing actions in a timely manner, and was not receptive to constructive criticism. As indicated earlier in footnote 1, this is the OER that was not available to the two regular selection boards that met on February 8, 1976 and June 8, 1977, nor was it included in the plaintiff’s records before the two Standby Advisory Boards (STABs) that met to reconsider the earlier two nonselections by the plaintiff’s regularly scheduled promotion boards.

As earlier indicated, the Board recommended in its decision dated August 20, 1980, that the above-discussed four OERs challenged by the plaintiff be removed and expunged from his records. However, the board specifically declined to void his 1976 and 1977 nonselections for promotion as well as his involuntary discharge on March 1, 1978. Instead, the board recommended that plaintiff’s records, after correction, be referred to a STAB for an advisory opinion as to whether plaintiff’s consideration by the original selection boards was prejudiced by the errors and injustices found by the Board.

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Bluebook (online)
9 Cl. Ct. 463, 1986 U.S. Claims LEXIS 915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braddock-v-united-states-cc-1986.