Thumser v. United States

53 Fed. Cl. 371, 2002 U.S. Claims LEXIS 220, 2002 WL 1969638
CourtUnited States Court of Federal Claims
DecidedAugust 27, 2002
DocketNo. 94-1064C
StatusPublished
Cited by1 cases

This text of 53 Fed. Cl. 371 (Thumser 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
Thumser v. United States, 53 Fed. Cl. 371, 2002 U.S. Claims LEXIS 220, 2002 WL 1969638 (uscfc 2002).

Opinion

OPINION

BRUGGINK, Judge.

The issue at bar is whether plaintiff, a former officer in the Air Force, has presented sufficient grounds for the court to overturn a ruling by the Air Force Board for Correction of Military Records (“AFBCMR”) and reinstate him to the position he occupied before being involuntarily discharged. The matter was stayed twice; once pending reconsideration by the AFBCMR and then again during litigation of Small v. United States, 37 Fed.Cl. 149 (1997), aff'd 158 F.3d 576 (Fed.Cir.1998). Pending are plaintiffs renewed motion for judgment on the administrative record and defendant’s cross-motion for judgment on the administrative record. Oral argument is deemed unnecessary. For the reasons set out below, defendant’s motion is granted and plaintiffs motion is denied.

BACKGROUND

Nature of the Case

Plaintiff, Richard S. Thumser, while a Major on active duty in the United States Air Force, was assigned to duties requiring travel on official temporary duty (“TDY”) from September 1984 through December 1987. On June 24, 1987, Maj. Thumser was placed under an Article 32 investigation by the Air Force Office of Special Investigations (“AFO-SI”) for suspected fraud and abuse of government travel regulations in the course of his TDY travel. Although the court-martial charges were dropped in March 31,1989, the investigation caused one of Maj. Thumser’s superior officers, Lieutenant Colonel (“LTC”) Edwin Hawley, to write a Letter of Reprimand (LOR) and establish an Unfavorable Information File (“UIF”) on April o, 1989. On May 1, 1989, Maj. Thumser received an unfavorable Officer Performance Report (“OPR”). He was subsequently passed over for promotion to Lieutenant Colonel by four [373]*373consecutive promotion boards from 1990 through 1993 and was involuntarily retired from the Air Force on October 31, 1994.

On February 12, 1992, plaintiff argued before the AFBCMR that, although an Article 32 investigation concerning him found no basis for the charges against him, his commander chose to presume his guilt, in spite of clear and convincing evidence to the contrary. Plaintiff requested that the AFBCMR void the following adverse personnel actions contained in his personnel record: (1) a 1989 LOR; (2) an UIF; (3) a 1989 unfavorable OPR; and (4) two Promotion Recommendation Forms (“PRF”) prepared for the 1990 and 1991 Central Lieutenant Colonel Selection Board. Plaintiff further requested that AFBCMR correct his records to show that he was selected for promotion to LTC by the 1990 Central LTC Selection Board and award him a Meritorious Service Medal for his service from 1984 to 1990, back pay, date of rank, and other entitlements associated with retroactive promotion. The AFBCMR denied all of plaintiffs requests.

On December 12, 1994, Plaintiff filed this action, seeking review of the AFBCMR denial. In November 1995, the proceedings were stayed to allow the AFBCMR to consider new evidence. On June 27, 1995, the AFBCMR again denied plaintiff relief. Plaintiff subsequently filed an amended complaint. The case was stayed a second time pending the decision of the Federal Circuit in Small v. United States, 158 F.3d 576 (Fed.Cir.1998), amended by 180 F.3d 1343 (1999), and for reconsideration of additional evidence by the AFBCMR. On October 19, 2000, the AFBCMR again denied plaintiff relief. On December 21, 2001, plaintiff filed a renewed motion for judgment on the administrative record, in response to which the government cross-moved.

Facts

Plaintiff, serving at Carswell Air Force Base (“Carswell AFB”) in Texas, was assigned to duties requiring TDY travel from September 1984 through December 1987. Plaintiff was listed on “blanket travel orders” dated October 1, 1986, which authorized him to “proceed at such times as may be necessary during the period 1 Oct[.] 1986 through 30 Sep[.] 1987, both dates inclusive, from Carswell Air Force Base, Texas, to any point within the continental limits of the United States of America on Temporary Duty.” Plaintiffs TDY required travel from Carswell AFB to Offutt Air Force Base (“Offutt AFB”) in Omaha, Nebraska. Air Force Regulations (“AFR”) require TDY travel costs to be kept to a minimum. AFR 36-20 ¶ 6-l(a) (1988).

The Article 32 investigation of Maj. Thumser by AFOSI for suspected fraud and abuse of government travel regulations in the course of his TDY travel revealed that on various occasions between August 25, 1986 and May 16,1987, Maj. Thumser made several reservations through the Schedule Airline Travel Office (“SATO”) for trips to Omaha via Chicago on United Airlines despite the fact that that route was more expensive than traveling to Omaha via Kansas City. According to the Investigating Officer’s Report, these travel arrangements cost the government an estimated $646.00. The investigation also revealed that Maj. Thumser had accumulated over 90,000 frequent flyer points with United Airlines since 1984. These points allowed Maj. Thumser to receive two award certificates, each good for a round trip airline ticket to the United Kingdom, which were sent to Maj. Thumser on or about May 20, 1987. Maj. Thumser tided to- return the award certificates at three different SATO offices, but the personnel in those offices were unable to accept the certificates. Maj. Thumser eventually returned them to United unused.

TDY is approved for the following purposes: (1) “TDY from home station and return for the purpose of attending courses of instruction;” (2) “TDY en route to the next PCS base for the purpose of attending courses of instruction;” (3) “TDY from home base and return for the purpose of carrying out Air Force duties;” and (4) “TDY en route to the next PCS base for the purpose of carrying out Air Force duties.” AFR 36-20 ¶ 6-l(a). Waivers are considered when “uncontrollable circumstances develop and TDY will not end in the time authorized.” Id. ¶ 6-1(b).

[374]*374In her deposition during the Article 32 investigation of Maj. Thumser, SA H. Dorothy Kiger, a special agent of the Air Force Office of Special Investigations, revealed that there are permissible reasons for deviating from lowest fare routing. She testified that, while use of the least expensive means of air transportation was generally required, more “costly class, i.e. first class” accommodations could be employed when: time was of the essence in regard to a particular official undertaking; the traveler was handicapped; “exceptional circumstances” were recognized by the Secretary of the Air Force; sanitation or health standards were subpar; etc. AFR 36-20, in its chapter pertaining to TDY, states:

An authorization for variations in itinerary permits the omission of travel to any place stated in the travel order, and grants changes in the order of places shown, as necessary for getting the job done. Usually, the purpose of a trip and places of TDY are known at the time that a travel order is published. The authorizations for variation in itinerary does not take the place of good planning. This authority is not to be read as granting blanket travel authorization.

Id. ¶ 6-3 (1988). AFR 36-20, in a paragraph entitled “Management at TDY Sites,” further states that “The CBPO (or Personnel activity) that serves the TDY site: ...

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61 Fed. Cl. 185 (Federal Claims, 2004)

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Bluebook (online)
53 Fed. Cl. 371, 2002 U.S. Claims LEXIS 220, 2002 WL 1969638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thumser-v-united-states-uscfc-2002.