Harris v. United States

14 Cl. Ct. 84, 1987 U.S. Claims LEXIS 227, 1987 WL 23414
United States Court of Claims·Decided December 11, 1987·No. No. 715-83C·Published·Cited by 13 cases

Opinion

OPINION

MARGOLIS, Judge.

On May 31, 1985, this court denied cross motions for summary judgment and remanded the case to the Air Force Board for Correction of Military Records (AFBCMR) for resolution of several factual issues. Harris v. United States, 8 Cl.Ct. 299, 303 (1985). The AFBCMR conducted an investigation and rendered its opinion on January 15, 1987, which resolved the factual issues and again denied relief to the plaintiff. The parties have renewed their motions for summary judgment. After a careful and searching review of the record and after hearing oral argument, the plaintiff’s motion for summary judgment is denied, and the defendant's motion for summary judgment is granted.

FACTS

Plaintiff Harold J. Harris first served in the Air Force from 1963 to 1967 as a dental specialist. After his honorable discharge on September 6, 1967, he was transferred to the inactive reserve, from which he was honorably discharged on November 12, 1969. He reenlisted on April 27, 1970. In just over a year, the Air Force sent him to Officer Training School, and he was appointed a second lieutenant. The plaintiff later studied navigation, became a navigator, earned promotion, served abroad, and impressed his superiors as capable and hardworking. By 1975, he had advanced to the rank of temporary captain.

In April 1976, the Air Force assigned the plaintiff to the 9th Airborne Command and Control Squadron, located at Hickam Air Force Base in Hawaii. The plaintiff served there as a navigator aboard EC-135 aircraft, the airborne command and control posts of the Pacific Command. Because the plaintiff’s duties directly involved nuclear weapons, he was certified under the Personnel Reliability Program (PRP). The PRP’s purpose is to prevent an unauthorized launch or detonation of a nuclear weapon. Under the PRP, all personnel whose duties directly involve nuclear weap[86]*86ons must be screened to insure that they meet certain reliability criteria. An individual’s immediate commander is given wide latitude to remove from nuclear weapons duties any individual whom the commander suspects of being unreliable.

Prior to Capt. Harris’ assignment to Hickam, his Officer Effectiveness Reports (OERs) consistently rated him either “above standard” or “well above standard.” Under the uncontrolled system of evaluations, which did not set limits on how many ratees could receive the highest rating, plaintiff’s Evaluation of Potential was consistently rated as superior.1 Beginning in 1975, OERs were rated under a controlled, or quota, system. The controlled system limited the number of officers that could be rated in the top block (a “1” rating) for their Evaluation of Potential rating.

In the controlled OER covering Capt. Harris’ first year at Hickam, his rating fell to “meets standard” in nine areas and “above standard” in one area.2 However, the raters praised Capt. Harris’ motivation and enthusiasm and cited his making good progress as a navigator. The additional rater indicated that Capt. Harris had been “put at a disadvantage by being assigned to a unit which had previously employed only more experienced personnel.” All three raters marked Capt. Harris’ Evaluation of Potential in the number 3 block. Capt. Harris’ controlled 1977 OER showed marked improvement over the 1976 OER, but his Evaluation of Potential remained at 3-3-3.

On September 29, 1978, the plaintiff wrote to his unit commander, Col. William L. Ernst, to file an Equal Opportunity and Treatment complaint (EOT) against one of plaintiffs superiors, Lt. Col. Panitch. The plaintiff alleged that Lt. Col. Panitch had made “a statement about ridding the squadron of my Black ass, or something to that effect.”

Five days later, on October 4, 1978, Col. Ernst requested that the base’s social actions officer investigate Capt. Harris’ complaint. On that same day, Col. Ernst removed Capt. Harris from the EOT position Capt. Harris had held. The inquiry officer collected and reviewed information from October 25 to November 6, 1978. He was unable to substantiate the allegations made by Capt. Harris, but noted that Capt. Harris: 1) seemed anxious about his permanent promotion; 2) believed himself to be the victim of racial discrimination and tried to convince others that he was being discriminated against; and 3) might be suffering physical and psychological strain beyond his tolerance. The inquiry officer recommended relieving Capt. Harris of all duties until he passed a physical and psychological examination. The Judge Advocate General reviewed the EOT report and found it legally sufficient.

Meanwhile, the close-out date for Capt. Harris’ OER was October 10, 1978. On October 14, 1978, four days after the plaintiff’s close-out period, the Air Force issued IMC 78-2, which amended AFR 36-10, the officer rating regulations. This amendment abolished the controlled (or quota) system. All new OERs were to be uncontrolled, and raters were to rate officers as individuals. All OERs closing-out on October 10, 1978 that were prepared before IMC 78-2 was issued and were being held for final action by reviewing officials were to be returned to the rating officers for reconsideration in the event the rating officers desired to make changes.

On October 26, 1978, about three weeks after Capt. Harris filed his EOT complaint, Col. Ernst sent Capt. Harris an OER covering the period from July 2, 1977 to October 10, 1978. The rater, Capt. Hudgins, rated the plaintiff very much in line with the [87]*87plaintiff’s prior controlled OERs. Capt. Hudgins rated plaintiff as above standard or well above standard in seven areas and meeting the standard in three areas. Capt. Hudgins marked the number 3 block for Evaluation of Potential. In his comments Capt. Hudgins praised the plaintiff as “an exceptional officer who has demonstrated two outstanding characteristics: He is an excellent navigator ... with superb crew skills; and he is tireless in accepting new responsibilities and challenges for self-improvement.”

The plaintiff’s additional rater, Col. Ernst, did not concur with Capt. Hudgins’ assessment of Capt. Harris’ performance. Col. Ernst rated the plaintiff as below standard in four areas and as meeting the standard in six areas. One of the areas in which Col. Ernst gave Capt. Harris a below standard rating was for Human Relations. Previously, in every other OER, Capt. Harris had received the highest rating for Human Relations, except for two OERs in which he received the second highest rating. In accordance with these ratings, Col. Ernst rated Capt. Harris’ Evaluation of Potential in the number 4 block. Col. Ernst stated that the plaintiff’s “leadership shows a lack of poise and the initiative to complete difficult tasks. His daily work under stress does not resemble a high achievers’. Oral presentations lack clarity. His written text lacks organization, requires editing, and is vague. This forced me to remove him from the unit EOT position.” As a whole, Col. Ernst’s rating was a marked departure from the plaintiffs earlier OERs. Until this OER, plaintiff had received only favorable comments regarding his EOT activities, written and oral communication skills,3 and adaptability to stress.4

Col. Joseph Trochta, Deputy Commander for Operations at Hickam, served as the indorser on Capt. Harris’ 1978 OER. Col. Trochta concurred with Col. Ernst’s assessment of Capt. Harris’ performance. Col. Trochta rated Capt. Harris a “4” under the Evaluation of Potential. As a result of Col.

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Harris v. United States, 14 Cl. Ct. 84, 1987 U.S. Claims LEXIS 227, 1987 WL 23414 (cc 1987).

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