MacEntee

546 F.2d 431, 211 Ct. Cl. 344, 1976 U.S. Ct. Cl. LEXIS 192

• Court: United States Court of Claims
• Decided: October 21, 1976
• Docket: No. 140-73
• Status: Published

Opinion

Military pay; release from active duty; Selection Board passovers for promotion. — Plaintiff was discharged from active service in the United States Air Force as required by 10 U.S.C. § 8303(d) when he twice failed to be recommended for promotion to permanent Major by Selection Boards. On appeal, the Air Force Board for Correction of Military Records determined that plaintiff had not submitted sufficient evidence to establish a showing of probable error or injustice in the Selection Boards’ actions warranting removal of plaintiff’s Officer Effective Report (OER) closing November 1968. Plaintiff seeks to have removed from his record the determinations of the Selection Boards, to have voided the allegedly improper OER upon which the Board decisions were allegedly based, to be restored to active duty status with appropriate back pay and allowances, and to be promoted to permanent Major and temporary Lieutenant Colonel with appropriate positioning in promotion lists to make him equal to his contemporaries. On May 3,1976 Trial Judge Joseph V. Colaianni filed a recommended opinion, finding no convincing proof that the OER in question was prepared in violation of Air Force Regulation, and concluding that there is no error which the Board could be required to correct and that -the Board decision must be sustained. On October 21, 1976 the court, by order, adopted the recommended opinion as the basis for its judgment in this case, concluded that as a matter ■ of law plaintiff is not entitled to recover, and dismissed the petition.