Pepper v. United States

8 Cl. Ct. 666, 1985 U.S. Claims LEXIS 927
CourtUnited States Court of Claims
DecidedAugust 26, 1985
DocketNo. 547-80C
StatusPublished
Cited by11 cases

This text of 8 Cl. Ct. 666 (Pepper v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pepper v. United States, 8 Cl. Ct. 666, 1985 U.S. Claims LEXIS 927 (cc 1985).

Opinion

OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

REGINALD W. GIBSON, Judge:

In this military pay case, the plaintiff, former United States Air Force Captain David S. Pepper, seeks, inter alia, money damages from the government comprised of back pay and allowances arising from an alleged wrongful active duty discharge. Plaintiff was discharged on February 29, 1980 pursuant to 10 U.S.C. § 8303 (1976 and Supp. IV) after having been twice passed over for promotion to the regular grade of permanent major.1 Plaintiff contends that his non-selections were the result of four defective Officer Effectiveness Reports (OERs),2 in his file at the time, [668]*668which were invalid based on both procedural irregularities by the rating officers, and certain inherently prejudicial aspects of the Air Force officer rating procedures. . In addition, plaintiff has asked this court to order his reinstatement to active duty and his promotion to the grade of temporary, and then to permanent major as of the time he would have been promoted had he been fairly and accurately rated.

In response, defendant has argued that plaintiff’s claim, which allegedly accrued in 1974, is barred by the equitable doctrine of laches. On the merits of plaintiff’s claim, defendant has asserted that the decision of the Air Force Board for the Correction of Military Records (AFBCMR), which denied plaintiff’s requested relief below, should be affirmed by this court in that it was neither arbitrary, capricious, nor unsupported by substantial evidence. Defendant requests a similar affirmation with respect to plaintiff’s alleged illegality of the Air Force officer rating procedures.

Jurisdiction for this claim has been noted pursuant to 28 U.S.C. § 1491 (1982). Having heard oral argument on the parties’ cross motions for summary judgment, and viewing the facts in the light most favorable to plaintiff, defendant’s motion is hereby granted and plaintiff’s claim is barred by the doctrine of laches. Likewise, plaintiff’s cross motion is hereby denied.

FACTS

Upon review of the record as developed during plaintiff’s proceedings before the AFBCMR, as well as a stipulation3 by the parties, the following facts have been established. David S. Pepper, the plaintiff, entered the United States Air Force on active duty on February 10, 1965 at the grade of second lieutenant. Following his initial promotion to first lieutenant on July 6, 1970, Pepper was progressively promoted to the permanent, regular grade of Captain on February 10, 1972. At his date of discharge (February 1980), Pepper had received no further promotions. In total, from date of entry to discharge, Pepper had served roughly fifteen years on active duty with the U.S. Air Force.

Following his promotion to the grade of permanent, regular captain in 1972, and prior to his discharge in 1980, Pepper failed five consecutive promotion board reviews for the grade of major. Three of those reviews, October 18, 1976,4 June 5, 1978 [669]*669and June 4, 1979, resulted in Pepper’s non-selection to the grade of “temporary” major. The other two, June 19, 1978 and July 9, 1979, resulted in not only his non-selection to the grade of “permanent” regular major, but to a request for his resignation pursuant to the requirements of .10 U.S.C. § 8303 (1976 and Supp. IV). Pepper was informed that should he fail to resign, he would be involuntarily separated from active duty on February 29, 1980. By refusing to resign, Pepper chose the latter course of action.

Thereafter, on October 9, 1980, Pepper initiated this proceeding in the Court of Claims. After a number of delays including extensions of time, a joint motion by the parties was granted whereby it was ordered on June 11, 1981 that the proceedings in the Court of Claims be temporarily suspended pending remand for administrative consideration by the AFBCMR. Prior to 1981, plaintiff had pursued no administrative review of either his challenged OERs, or his challenged non-selections. Again, however, delays were subsequently encountered due to a substitution of counsel for the plaintiff, and plaintiff’s claim was not filed with the AFBCMR until November 1, 1982.

In his petition before the AFBCMR, plaintiff contended:

(1) That four specific OERs for the periods closing September 28,1974, October 31, 1975, October 31, 1976, and October 31, 1977 were not prepared fairly and impartially, but were “reflective of higher command pressure rather than the independent and fair judgment of the rating and indorsing officers;”

(2) That the Air Force regulations proscribing the “controlled” rating system (AFR 36-10) relating to officer category quotas unfairly discriminated against Pepper by ranking him among officers in his command for evaluation purposes, while ranking his evaluation Air Force-wide for promotion purposes; and

(3) That because it was his unit’s command policy to reserve the top two ratings for those officers who had never been passed over and who were perceived to be the officers with a realistic chance for promotion, regardless of duty performance, Pepper was, contrary to AFR 36-10, statistically eliminated from promotion consideration after his first passover for the grade of temporary major.

In sum, plaintiff’s claims before the AFBCMR were based on both an alleged unlawful application of Air Force promotion procedures, and the alleged discriminatory nature of the promotion procedures themselves.

The relief Pepper requested before the AFBCMR is identical to that requested in plaintiff’s petition here: (1) that the four challenged OERs be voided and removed from his records; (2) that plaintiff’s five non-selections for the rank of major be set aside; (3) that plaintiff be reinstated to extended active duty effective March 1, 1980; (4) that he be promoted retroactively [670]*670to the grade of major; and (5) that plaintiff be paid all back pay and allowances less adjustment for severance pay from March 1, 1980.

Based upon a finding that insufficient evidence of any wrongdoing or injustice affected Pepper’s five non-selections and four challenged OERs, the AFBCMR denied Pepper’s requested relief in toto. With regard to the 1974 and 1975 OERs, the board found that while a letter from one of plaintiff’s indorsers, Lt. Col. Donald E. Sheehan, did allude to certain irregularities in the rating procedures in plaintiff’s unit, the dispositive factor accounting for plaintiff’s less-than-perfect scores was that plaintiff’s unit “was populated by exceptionally fine captains of superior potential.” AFBCMR, Record of Proceedings, at 6. Moreover, given that any alleged irregularities “presumably affected the ratings of all the officers in his review group,” and that such irregularities were not contrary to the then-current Air Force regulations, the board found the alleged irregularities were not prejudicial to plaintiff’s ratings in the 1974 and 1975 OERs. Id.

As for the 1976 OER, Lt. Col. Sheehan’s letter had posed the question whether Pepper was indeed rated below “perfect” based solely on his 1976 non-selection to the temporary grade of major.5

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8 Cl. Ct. 666, 1985 U.S. Claims LEXIS 927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pepper-v-united-states-cc-1985.