Melendez Camilo v. United States

89 Fed. Cl. 671, 2009 U.S. Claims LEXIS 393, 2009 WL 4289042
CourtUnited States Court of Federal Claims
DecidedNovember 25, 2009
DocketNo. 09-183C
StatusPublished
Cited by8 cases

This text of 89 Fed. Cl. 671 (Melendez Camilo 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
Melendez Camilo v. United States, 89 Fed. Cl. 671, 2009 U.S. Claims LEXIS 393, 2009 WL 4289042 (uscfc 2009).

Opinion

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, Nancy Melendez Camilo, alleges she was wrongfully retired from the United States Air Force at the rank of major after having been successively passed over for promotion to the rank of lieutenant colonel and that a decision of the Air Force Board for Correction of Military Records (“Correction Board”) to deny correction of her military [674]*674records and promotion to the rank of lieutenant colonel was arbitrary and capricious. Compl. ¶¶ 1, 20. Major Melendez Camilo has asked the court to set aside her retirement and promote her to the rank of lieutenant colonel, or, in the alternative, retroactively retire her at that rank. Compl. ¶ 26. She seeks back pay and benefits dependent upon the rescission of her forced retirement as a major. Compl. ¶ 27. The government has moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”) on the grounds that this court lacks subject matter jurisdiction over Major Melendez Camilo’s claims and that she has failed to state a claim upon which relief can be granted, respectively. Def.’s Mot. to Dismiss, or, in the Alternative, Mot. for Judgment upon the Administrative Record at 1 (Def.’s Mot.). In addition, the government has filed the administrative record pursuant to RCFC 52. 1, and it has moved for judgment on that record. Def.’s Mot. at 1. The several motions have been fully briefed and a hearing was held on November 10, 2009. The ease is ready for disposition.

FACTS1

Major Melendez Camilo’s career in the Air Force has been affected by two sets of proceedings before correction boards, the first of which related to her service up to January 1989, and the second of which concerned her service from August 1995 through March 2003.

A. The First Set of Correction Board Proceedings

Major Melendez Camilo commenced active duty military service in the Air Force on March 18,1979. AR 50a at 10 (Certificate of Release or Discharge From Active Duty).2 On October 5, 1981, she was promoted to the rank of captain. AR 50a at 35 (Special Order AB-050 (Aug. 31, 1995)). In 1987 and again in 1988, she was considered but not selected for promotion to the rank of major by the Central Major Promotion Boards for those years. AR 64 (Application for Correction of Military Records (Mar. 22,1991)). As a result of her failure to be selected for promotion in 1987 and 1988, plaintiff was involuntarily separated from active duty on January 31, 1989, and assigned to the Inactive Status List Reserve Section, effective on February 1 of that year. AR 50a at 36 (Request and Authorization for Change of Administrative Orders (Aug. 15,1995)).

At that time, then-Captain Melendez Cam-ilo contended that her failure to be selected for promotion to the rank of major was due to a “prejudicial” Officer Effectiveness Report for the period from June 16, 1984 through January 31, 1985. See Compl. ¶ 10. On March 12, 1988, more than ten months prior to her involuntary separation from active duty on January 31, 1989, plaintiff had applied to a Correction Board requesting that the report be removed from her records. AR 52-55 (Record of Correction Board Proceedings (June 9, 1989)). In response, although the Correction Board recommended that the contested report be voided and removed from plaintiffs records and that she be considered for promotion to major by a special selection board, AR 54,3 the Correction Board’s recommendation was not accepted by the Deputy for Ah* Force Review Boards until June 9, 1989, about five months [675]*675after plaintiffs involuntary separation from active duty. AR 51 (Mem. for the Chief of Staff (June 9, 1989)). In accord with the Correction Board’s recommendation, a Special Selection Board was convened on November 27, 1989 to reconsider plaintiffs records. AR 59 (Record of Correction Board Proceedings (July 1, 1992)). However, that Board did not select plaintiff for promotion to major. Id.

On January 10, 1991, then-Captain Melendez Camilo again applied to a Correction Board for relief, alleging that in evaluating plaintiff for promotion, the Special Selection Board had failed to consider the effect the previously contested and subsequently voided Officer Effectiveness Report had on her records from January 1985 through January 1989. AR 69 (Addendum to Record of Correction Board Proceedings (May 15, 1995)) (“Addendum to May 1995 Proceedings”); AR 59-63 (Record of Correction Board Proceedings (July 1, 1992)). The Correction Board concluded that there was no “evidence of discrimination, bias or denial of equal opportunity and treatment rights reflected in [plaintiffs] Selection Folder” and denied her application. AR 62. Plaintiff subsequently submitted an application for reconsideration, which the Correction Board denied on October 19, 1992. AR 70 (Addendum to May 1995 Proceedings).

On December 2,1994, then-Captain Melendez Camilo submitted a second application for reconsideration to the Correction Board. AR 70 (Addendum to May 1995 Proceedings). Plaintiff sought: (i) direct promotion to the rank of major with a promotion date equivalent to that which she would have had if the Central Major Promotion Board had selected plaintiff for promotion in 1987; (ii) reinstatement to active duty; and (iii) a direct promotion to the rank of lieutenant colonel with a promotion date commensurate with her promotion date for the rank of major. Id. With this application, then-Captain Melendez Camilo submitted a statement from her former Wing Commander to the effect that the previously contested and subsequently voided Officer Effectiveness Report she had received for the period of June 16, 1984 to January 31, 1985, had affected the endorsement level on her report closing on December 17,1987, and thus reduced her prospects for promotion to major in 1987 and 1988. AR 71 (Addendum to May 1995 Proceedings). The Correction Board determined plaintiff had presented sufficient evidence of error and recommended partial relief, specifically that her records be corrected to reflect the following:

a. She was tendered a Regular Air Force appointment and upon Senate confirmation, she accepted the appointment, effective 18 December 1985.
b. She was considered and selected for promotion to the grade of major by the Calendar Year 1987 Central Major Selection Board and upon Senate confirmation, she be given an appropriate effective date and date of rank.
c. The Officer Effectiveness Report, AF Form 707, rendered for the period 18 December 1986 through 17 December 1987, be declared void and removed from her records.
d. She was not released from extended active duty on 31 January 1989, but continued on extended active duty and was ordered Permanent Change of Station (PCS) to her home of record.
It is further recommended that if she is considered and nonselected for promotion to the grade of lieutenant colonel by a regularly scheduled promotion board prior to receiving two current Officer Performance Reports in the grade of major, her nonselection(s) be declared void.

AR 73 (Addendum to May 1995 Proceedings). On May 15, 1995, the Deputy for Mr Force Review Boards accepted the Correction Board’s recommendations. AR 34 (Mem. for the Chief of Staff (May 15, 1995)).

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Bluebook (online)
89 Fed. Cl. 671, 2009 U.S. Claims LEXIS 393, 2009 WL 4289042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melendez-camilo-v-united-states-uscfc-2009.