King v. United States

50 Fed. Cl. 701, 2001 U.S. Claims LEXIS 213, 2001 WL 1455953
CourtUnited States Court of Federal Claims
DecidedNovember 1, 2001
DocketNo. 96-439C
StatusPublished
Cited by6 cases

This text of 50 Fed. Cl. 701 (King v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. United States, 50 Fed. Cl. 701, 2001 U.S. Claims LEXIS 213, 2001 WL 1455953 (uscfc 2001).

Opinion

OPINION

BRUGGINK, Senior Judge.

Plaintiff seeks to recover military pay, allowances, and other benefits, as well as correction of his military record to delete any and all references to his promotion non-selections and 1992 retirement, and to reflect continuous active duty service, and thereby permit his reinstatement to active duty. The matter was suspended in 1996 pending final resolution of two related cases: Small v. United States, 36 Fed.Cl. 43 (1996), and Roane v. United States, 36 Fed.Cl. 168 (1996). The suspension ended with the decision of the United States Court of Appeals for the Federal Circuit in Small v. United States, 158 F.3d 576 (Fed.Cir.1998), amended by 180 F.3d 1343 (Fed.Cir.1999). Pending are Defendant’s Motion to Dismiss or, in the Alternative, For Judgment Upon the Administrative Record, and Plaintiffs Cross-Motion for Summary Judgment. Oral argument was held on October 23, 2001. For the reasons set out below, defendant’s motion for summary judgment is granted and plaintiffs motion is denied.

BACKGROUND

Plaintiff, Major Phillip M. King, is a retired major in the United States Air Force. In 1988, plaintiff was married to another active duty Air Force officer, Captain Maria King. Both were serving at Minot Air Force Base (“AFB”) in North Dakota, where plaintiff was apparently performing superbly as the Chief of Airfield Management. Strategic Air Command (“SAC”) wanted to assign Mrs. King, a personnel officer, to its headquarters at Ofutt AFB in Nebraska. She agreed to the assignment on the condition that there would be a position for plaintiff at Ofutt, as well. While processing Mrs. King’s transfer, SAC indicated that it would undertake to find plaintiff a “good job.”

Plaintiff was interested in accompanying his wife to Ofutt; but he was also nearing promotion to the grade of lieutenant colonel and was aware that reassignment at such a sensitive time could be prejudicial to his promotion competitiveness if it was to a position of lesser responsibility. Accordingly, plaintiff discussed the matter with his commander at Minot, Colonel John Wiley. They agreed that a reassignment to Ofutt, in conjunction with his wife’s reassignment, was only wise if it was to a position of equal or greater responsibility.

In 1988, the Air Force, with Colonel Wiley’s approval, offered plaintiff an assignment as the Chief of Airfield Management at the 55th Strategic Reconnaissance Wing at Ofutt. However, 55th Wing officials had previously advised SAC that no suitable position was available for him and were surprised to learn that he was still being assigned there. They also called plaintiff prior to his transfer and advised him that the current Chief of Airfield Management at Ofutt was not leaving or retiring. When plaintiff reported to Ofutt, he discovered that the Chief of Airfield Management position was indeed already filled; subsequently, his commanding officer there assigned him to a position as a Plans Officer.

As a Plans Officer at Ofutt, plaintiff later received a “Promote” recommendation from his commander, rather than what he had [703]*703hoped for, “Definitely Promote.” Plaintiff was not promoted. However, 100% of line officers with a “Definitely Promote” recommendation at the 1989 Air Force promotion review board were. On September 1, 1992, plaintiff was mandatorily retired from- the military after serving on active duty for twenty years and failing, in 1989 and 1990, to be selected for promotion to lieutenant colonel.

On August 10,1990, plaintiff sought administrative relief from the Air Force Board for Correction of Military Records (“AFBCMR”), alleging that the Air Force had improperly assigned him in 1988 to a non-competitive position that did not exist, thereby unfairly prejudicing his chances for promotion. The AFBCMR denied plaintiffs request on May 23, 1991. It also denied plaintiffs subsequent requests for reconsideration on April 20, 1993, and March 16, 1994. On July 23, 1996, plaintiff commenced this action.

DISCUSSION

Plaintiff raises two independent theories in support of his claim. First, he argues that the promotion boards which declined to recommend him for promotion to lieutenant colonel were illegally conducted. Second, plaintiff argues that defendant illegally reassigned him to a position — Plans Officer — that prejudiced his promotion competitiveness.

I. THE PROMOTION BOARD

The statutes governing military promotion boards require three things: (1) promotion recommendations by a “majority” of the members of the promotion board; (2) findings by a “majority of the members of the board” that each recommended officer is fully qualified for promotion; and (3) a unanimous certification that the board has recommended the best qualified officers out of all those considered for promotion. 10 U.S.C. §§ 616(c) and 617(a) (1994). Additionally, Department of Defense Directive (“DoDD”) 1320.9 HD.l.a (1981) requires “Centralized Selection. To ensure fairness in the promotion selection process and a balanced appraisal of the needs of the Military Service concerned, a single board shall be convened to consider all eligible officers in the same grade and competitive category for promotion ____” Plaintiff alleges that the 1989 and 1990 promotion boards, which did not select him for promotion to lieutenant colonel, failed to meet these minimum requirements.

Plaintiff describes the Air Force’s procedure for distributing officer selection records for evaluation for promotion during 1989 and 1990 as follows.1 Each year, the selection board was broken into subordinate five-member panels. The records of officers under consideration for promotion were randomly distributed among those panels. Within each panel, members independently evaluated all the candidates assigned to that panel, secretly giving a numerical score to each. The administrative support staff then added each candidate’s five scores and arranged the totals in a hierarchical ranking called the Order of Merit.

During this process, the Board President reviewed the scoring, assisted by a computer-generated model, known as the Projected Order of Merit. This model predicted, based on certain data common to each candidate’s file, how each would fare in the rankings process in terms of likelihood of promotion. If any record received a score with which the Board President was not satisfied, he or she would return that record for rescoring, by the same or a different panel, and then choose which score to apply. Once each panel’s Order of Merit was finalized, the administrative support staff identified officers who would be recommended for promotion by counting down from the top of each ranking until the number of officers needed for promotion was exhausted. The members of each panel were asked to determine whether one of the candidates was “fully qualified” for promotion. If so, it was assumed that all higher-scored records on [704]*704the Order of Merit were also rated as fully qualified. At the end of the proceeding, each member signed a board report to which an alphabetized list of all the panels’ selectees was later appended.

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King v. United States
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50 Fed. Cl. 701, 2001 U.S. Claims LEXIS 213, 2001 WL 1455953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-united-states-uscfc-2001.