Nealon

175 Ct. Cl. 894, 1966 U.S. Ct. Cl. LEXIS 259

• Court: United States Court of Claims
• Decided: May 2, 1966
• Docket: No. 135-65
• Status: Published

Opinion

Military pay; retired pay. — Plaintiff, a Regular officer in the United States Air Force, Avas mandatorily retired on August 31, 1962, in the grade of major when he failed of selection to the grade of lieutenant colonel. He sues to recover the difference in pay and also seeks promotion to the grade of lieutenant colonel. Defendant has moved to dismiss the petition on the ground that plaintiff is bound by the action of the Correction Board which denied his application for correction of his record to show his promotion, unless that action was arbitrary, and that since plaintiff has failed to allege arbitrary denial of bis application by tbe board, be lias failed to make out a case. Upon consideration of defendant’s motion, together witb plaintiff’s opposition and without oral argument, tbe court concluded that plaintiff had failed to allege arbitrary or capricious 'action on the part of the Air Force Board for the Correction of Military Keeords and on the basis of Bowman v. United States, 142 Ct. Cl. 367 (1958), the court on May 2,1966 ordered that the petition be dismissed. Plaintiff’s motion for rehearing was denied July 15,1966. Plaintiff’s petition for writ of certiorari was denied December 5, 1966, 385 U.S. ——.