McIntyre v. United States

30 Fed. Cl. 207, 1993 U.S. Claims LEXIS 339, 1993 WL 541512
CourtUnited States Court of Federal Claims
DecidedDecember 3, 1993
DocketNo. 90-544C
StatusPublished
Cited by17 cases

This text of 30 Fed. Cl. 207 (McIntyre 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
McIntyre v. United States, 30 Fed. Cl. 207, 1993 U.S. Claims LEXIS 339, 1993 WL 541512 (uscfc 1993).

Opinion

OPINION

LYDON, Senior Judge:

In this case, Harry J. McIntyre seeks correction of his service records and back pay. Specifically, he asks that the Court of Federal Claims order correction of his Army records to show a retroactive restoration to active duty for a three-year period after he obtained an honorable discharge from the Army; Having been barred by the Army from reenlisting, McIntyre sought an immediate discharge from the service, which was granted. Suggesting that this request was a voluntary retirement, the defendant has filed a motion to dismiss for lack of jurisdiction on the grounds that the court has no jurisdiction to review the determinations of a Board for Correction of Military Records if plaintiff has voluntarily separated himself. In the alternative, defendant argues that no genuine issue of fact prevents summary judgment from being entered on its behalf. Plaintiff has cross-moved for summary judgment. Having reviewed the parties’ submissions and having heard oral argument, the court concludes that it has no jurisdiction over this matter and that summary judgment in this ease would in any event be appropriate.

BACKGROUND

Harry J. McIntyre (McIntyre) enlisted for active duty in the United States Army on June 10, 1968. Over the next ten years he was promoted in turn, eventually attaining the grade of Staff Sergeant (E6) on October. 16, 1978. McIntyre re-enlisted on August 7, 1981 for a term of four years; therefore, the date of his expiration of term of service (ETS) was August 7, 1985. However, on February 27, 1985, before his expected ETS came to pass, McIntyre re-enlisted for a new term of three years, setting his expected ETS as February 27, 1988. Had he been permitted to serve through this enlistment term, he would have had 19 years, 8 months, and 16 days of active duty service. This would have permitted him to extend his enlistment to complete 20 years of active service, making him eligible for retirement with 20 years service. But, soon after his final reenlistment in a letter dated March 5, 1985, the Army barred McIntyre from any future [209]*209re-enlistment under the terms of its Qualitative Management Program (QMP).

The Court of Appeals for the Federal Circuit has recently recognized once again that it is a “premise[ ] of law [that] ... no one has a right to enlist or reenlist in the armed forces, unless specially given one by statute or regulation____ Accordingly, the Secretary has prescribed Army regulations setting out the Qualitative Management Program (QMP) by which the Army determines whom it will reenlist.” Dodson v. Dep’t of Army, 988 F.2d 1199, 1203-04 (Fed.Cir.1993). The QMP

is [a.] based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to—
(1) Enhance quality of the career enlisted force.
(2) Selectively retain the best qualified soldiers to 30 years of active duty.
(3) Deny reenlistment to nonprogressive and nonproductive soldiers.
(4) Encourage soldiers to maintain their eligibility for further service.
(b) Bars to reenlistment imposed under the provisions of the QMP are not intended to be rehabilitative in nature. They are designed to deny reenlistment to soldiers who are identified through the qualitative screening program as failing to meet Army standards.

Army Regulation (AR) 601-280 If 10-2.

As indicated above, McIntyre was promoted to E6 in October 1978. At the time McIntyre was entering his seventh year as First Class (E7) Promotion Selection Board was convened on October 10,1984 to determine which soldiers in grade E6 should be promoted to grade E7. Pursuant to the QMP, the Board was also ordered to consider soldiers for a bar to reenlistment and separation. The Board recommended that McIntyre be selected for QMP. The Board considered matters in McIntyre’s official military personnel file (OMPF), which is the official record of a member’s military service. An OMPF contains three subfiles: (1) a performance fiche, which is used for filing performance, commendatory, and disciplinary data and which is routinely used by career managers and selection boards; (2) a service fiche, in which general information and service data are filed and which are given to selection boards upon request; and (3) a restricted fiche, the section for historical data that may normally be improper for examination by selection boards or career managers. It appears that the Selection Boards had the opportunity to examine only the performance and restricted fiches of McIntyre’s OMPF. an E6, the Army’s Sergeant

The March 5 letter informed McIntyre that the QMP bar was primarily based on particular documents in his OMPF, specifically, a record of a summary court-martial conviction, eleven records of nonjudicial punishment (NJP) proceedings,1 and three Enlisted Evaluation Reports (EERs)2 reflecting below-average performance. Enlisted persons receiving a bar to reenlistment are presented with a choice that is officially represented on a “Statement of Option.” Initially, the enlisted person must indicate whether or not he intends to appeal the bar to reenlist[210]*210ment. On a Statement of Option signed on May 22, 1985, McIntyre indicated he would not file an appeal. Those persons who state that they will not file an appeal are then asked whether they will complete their remaining term of enlistment- or will instead request an immediate discharge. Even if an enlisted person chooses to complete his remaining term of enlistment, under the bar to reenlistment the Army retains the option of initiating separation proceedings against the soldier, producing the possibility that the soldier may in any event be separated prior to his expected ETS; nevertheless, it appears that no separation proceeding could occur until at least eighteen months after the QMP bar had elapsed. McIntyre asked for immediate discharge. Along with his request for an immediate discharge, he signed a statement relating that his request for separation prior to his ETS was for his own convenience.

On May 29, 1985, McIntyre signed a request for personnel action seeking discharge from the Army in accordance with Army Regulation 635-200. Paragraph 16-5a(2) provides that the enlisted person’s request for early separation following a bar to reenlistment “will include the following statement: T understand that I am being separated for my own convenience____ I also understand that once separated I will not be permitted to reenlist at a later date.’ ” McIntyre, who was stationed in Korea at the time he sought discharge, asked for a discharge date of June 15, 1985, almost three years before his expected ETS date, February 27, 1988. The Army gave McIntyre an honorable discharge on June 18, 1985.

On October 4, 1985, McIntyre petitioned the Army Board for Correction of Military Records (ABCMR) pursuant to 10 U.S.C. § 1552 and AR 15-185, seeking removal of those records of nonjudicial punishment on the grounds that these records should have been removed from his OMPF two years after their imposition, and that the Selection Board improperly considered them.

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Cite This Page — Counsel Stack

Bluebook (online)
30 Fed. Cl. 207, 1993 U.S. Claims LEXIS 339, 1993 WL 541512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintyre-v-united-states-uscfc-1993.