Hary v. United States

618 F.2d 704, 223 Ct. Cl. 10, 1980 U.S. Ct. Cl. LEXIS 91
CourtUnited States Court of Claims
DecidedMarch 19, 1980
DocketNo. 239-74
StatusPublished
Cited by109 cases

This text of 618 F.2d 704 (Hary 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
Hary v. United States, 618 F.2d 704, 223 Ct. Cl. 10, 1980 U.S. Ct. Cl. LEXIS 91 (cc 1980).

Opinion

DAVIS, Judge,

delivered the opinion of the court:

This is another in the crowded parade of suits by former military officers who have been separated from the service, denied promotion, or relieved from active duty, allegedly on the basis of defective officer effectiveness reports (OERs). Plaintiff Robert L. Hary was appointed a second lieutenant [14]*14in the Air Force in 1958 and served on active duty until discharged in 1973. At the time of his separation he was a captain. He then enlisted as a sergeant and retired in 1979 after twenty years of active service. While serving in commissioned status he received twenty officer effectiveness reports. The ratings are set out in the margin.1 Between July 1968 and August 1972 plaintiff was passed over at least four times for promotion to the temporary rank of major2 and twice for promotion to permanent major. These passovers led to his separation as an officer on active duty. He contends that all of these passovers were unlawful, primarily because he says that a number of the OERs in his record before these selection boards were inaccurate.

Plaintiff presented this claim to the Correction Board which recommended that (1) the OER for the period September 1963 through April 1964 (April 1964 OER) be removed from plaintiffs record because it was not signed by the rating officer, (2) the actions of the selection boards challenged by plaintiff be sustained because they were not materially in error or unjust due to the presence of the [15]*15voided April 1964 OER, and (3) all other relief be denied because of the insufficiency of evidence demonstrating probable error or injustice. The Assistant Secretary of the Air Force accepted in full the Board’s recommendation.

In this action, now before us on cross-motions for summary judgment, plaintiff challenges the Board’s decision on essentially two grounds. First, he asserts that the Board was arbitrary and capricious in failing to recommend the removal of all the OERs he says were inaccurate. Second, he contends that, even if the Board was correct in recommending that only the April 1964 OER be removed, it committed error when it failed also to recommend the voiding of the passovers which occurred while this OER was wrongfully included in his record.

It is by now established in this court that such a claimant seeking back pay on account of a separation or relief from active duty must show both that (a) there was a material legal error or an injustice3 in the proceedings of the correction board, or other entity within the military department, which led to the adverse action against him, and álso (b) that there is an adequate nexus or link between the error or injustice and the adverse action (e.g., passover and nonselection for promotion). See Sanders v. United States, 219 Ct. Cl. 285, 310-11, 594 F.2d 804, 818 (1979); Skinner v. United States, 219 Ct. Cl. 322, 328-29, 594 F.2d 824, 828 (1979); Riley v. United States, 221 Ct. Cl. 308, 313, 608 F.2d 441, 443-44 (1979); Guy v. United States, 221 Ct. Cl. 427, 435-41, 608 F.2d 867, 872-74, 875 (1979).4 To recover back pay, it is not enough for the plaintiff to show merely that an error or injustice was committed in the administrative process; he must go further and either make a showing that the defect substantially affected the decision to separate him or relieve him from active duty, or at least he must set forth enough material to impel the court to direct a further inquiry into the nexus between the error or [16]*16injustice and the adverse action. We consider each of these issues seriatim as they relate to this case.

I.Error or injustice in challenged OERs

a. Before the court plaintiff challenges eight OERs on four different grounds.5

1. Five OERs for the period from July 1960 through October 1962 (1960-1962 OERs) are claimed to be inaccurate because the ratings were designed to show progressive improvement without regard to actual performance. A statement from the rater tends to support this assertion.

2. The OER for the period from March 1963 through September 1963 (September 1963 OER) is termed defective for several reasons — lack of observation of plaintiff by the rater, an expression by the rater of dislike for the plaintiff, failure by the rater to mention significant accomplishments by plaintiff during the rating period, evidence that the ratings were influenced by crew position rather than actual performance. This attack is buttressed by a number of statements by officers who served with plaintiff during this period.

3. The OER for the period from January through August 1970 (August 1970 OER) is called inaccurate because the rater failed to mention some of plaintiffs significant accomplishments during the rating period. This is supported by a statement by the rater which admits that he was unaware of these accomplishments and would have rated plaintiff higher if he had been aware of them. Plaintiff also relies on the decision of the Officer Personnel Record Review Board allowing his request that a letter of mitigation be attached to this OER.

4. The OER for the period from October 1962 through March 1963 (March 1963 OER) is challenged as not reflecting the actual assessment submitted by the rater for that period. A statement by the rater, Major George A. Lasley, explains that it was common practice to sign OER [17]*17forms in blank and submit evaluations in rough draft form which were later put in final form by a clerk. Lasley states:

At the onset I would like to state that the comments under Section VII are statements that were intended to be submitted on the final form. The placement of X’s under Section III blocks I through 8 and Sections IV, V, and VI are not placed in the blocks that I intended they be placed, (emphasis added)

There is no contrary evidence.

b. Regulations prescribe that OERs are to be objective and prepared in a certain way. Sanders, supra, 219 Ct. Cl. at 302-03, 594 F.2d at 814. See also Skinner v. United States, 219 Ct. Cl. 322, 594 F.2d 824 (1979). We have held that an officer’s challenge to an OER "must overcome the strong, but rebuttable, presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith.” "This presumption, of course, includes those officers who are charged with rating the performance of other officers.” (citations omitted). Guy, supra, 221 Ct. Cl. 432-33, 608 F.2d at 870. See also Sanders, supra; Boyd v. United States, 207 Ct. Cl. 1 (1975), cert. denied, 424 U.S. 911 (1976). Perfect objectivity in the rating process cannot be expected or even hoped for. Guy, supra, 221 Ct. Cl. 433, 608 F.2d at 870-71.

In the face of this presumption, plaintiffs must do more, to invoke court intervention, than merely allege or prove that an OER seems inaccurate, incomplete, or subjective in some sense.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Scott v. United States
Federal Claims, 2025
Glomski v. United States
Federal Claims, 2025
Daniels v. United States
Federal Claims, 2022
Williams v. United States
Federal Claims, 2022
Sullivan v. United States
Federal Claims, 2022
Kelly v. United States
Federal Claims, 2021
Bailey v. United States
Federal Claims, 2019
Rogers v. United States
124 Fed. Cl. 757 (Federal Claims, 2016)
Thomas v. United States
122 Fed. Cl. 53 (Federal Claims, 2015)
Stein v. United States
121 Fed. Cl. 248 (Federal Claims, 2015)
Glenn Defense Marine (Asia), PTE Ltd. v. States
105 Fed. Cl. 541 (Federal Claims, 2012)
Mendez v. United States
103 Fed. Cl. 370 (Federal Claims, 2012)
Boyle v. United States
101 Fed. Cl. 592 (Federal Claims, 2011)
McCarron v. United States
84 Fed. Cl. 616 (Federal Claims, 2008)
Childers v. United States
81 Fed. Cl. 693 (Federal Claims, 2008)
Banerjee v. States
77 Fed. Cl. 522 (Federal Claims, 2007)
Strickland v. United States
69 Fed. Cl. 684 (Federal Claims, 2006)
Ricks v. United States
65 Fed. Cl. 826 (Federal Claims, 2005)
Sutton v. United States
65 Fed. Cl. 800 (Federal Claims, 2005)
Hoskins v. United States
61 Fed. Cl. 209 (Federal Claims, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
618 F.2d 704, 223 Ct. Cl. 10, 1980 U.S. Ct. Cl. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hary-v-united-states-cc-1980.