Upshaw v. United States

17 Cl. Ct. 732, 1989 U.S. Claims LEXIS 169, 1989 WL 94784
CourtUnited States Court of Claims
DecidedAugust 17, 1989
DocketNo. 749-87-C
StatusPublished
Cited by1 cases

This text of 17 Cl. Ct. 732 (Upshaw 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
Upshaw v. United States, 17 Cl. Ct. 732, 1989 U.S. Claims LEXIS 169, 1989 WL 94784 (cc 1989).

Opinion

OPINION AND ORDER

TURNER, Judge.

Plaintiff, a retired Air Force non-commissioned officer, challenges the adequacy of action taken by the Air Force Board for Correction of Military Records. He claims entitlement to retroactive promotions and back pay based on assertions that the Board failed to grant the full relief that should have resulted from its correction of a legal error in his personnel records. Defendant has filed a motion to dismiss the portion of the complaint seeking retroactive promotions for lack of subject matter jurisdiction pursuant to RUSCC 12(b)(1).1 This opinion addresses defendant’s motion.

[733]*733Because the court lacks power to order a military promotion absent clear statutory entitlement thereto, it is concluded that defendant’s motion for partial dismissal should be granted.

I

Plaintiff retired from U.S. Air Force active duty in 1985 with the rank of Senior Master Sergeant (E-8).2 Sergeant Upshaw began his twenty-eight-year Air Force career in 1957. During his first eight years of service, plaintiff was promoted four times, averaging one promotion every two years; by October 1965 he had attained the rank of Staff Sergeant (E-5).

In 1969, while serving as an E-5, plaintiff was stationed at Barksdale Air Force Base in Louisiana. Air Force regulations required Sergeant Upshaw’s immediate supervisor, who at Barksdale was a civilian, to write the principal portion of plaintiff’s Airman Performance Report (APR). However, when plaintiff’s APR for the one-year period ending June 1969 came due, his immediate supervisor refused to write the report. Instead, an unauthorized official completed the evaluation, giving plaintiff less than top marks. With this illegal APR in his record, plaintiff’s subsequent promotion progress was as follows:

Date

Rank3 Became Eligible4 Date Promoted

E-6 September 1, 1969 July 1, 1973

E-7 November 1, 1972 July 1, 1977

E-8 November 1, 1975 November 1, 1981

E-9 December 1, 1978 -

In 1983, Sergeant Upshaw began efforts to secure removal of the illegal evaluation from his records and to reverse what he saw as its detrimental impact on his promotion progress. In April 1985, the Correction Board issued its final decision. Finding that the 1969 APR was completed in an illegal manner, the Correction Board removed it from plaintiff’s records and changed his E-6 date of rank from July 1, 1973 to December 1, 1969. However, the Board refused to award plaintiff any retroactive monetary benefits attendant to this records change. Next, the Board found that plaintiff should be given “supplemental promotion consideration to all appropriate grades ... based on the adjusted [E-6 promotion date].” Def. Reply App. at 3. When given supplemental promotion consideration, Sergeant Upshaw was promoted to E-7 and E-8 effective as of earlier dates than he had originally been. His date of rank for E-7 was changed from July 1, 1977 to September 1, 1976, and his E-8 promotion date was changed from November 1, 1981 to August 1, 1981. Plaintiff was not promoted to E-9.

During his last 22 years in the Air Force, Sergeant Upshaw received 28 consecutive perfect performance reports with the sole exception of the illegal 1969 evaluation. Plaintiff’s last eight APR’s were endorsed by general officers, all of whom highly recommended him for promotion. Plaintiff retired with numerous medals, decorations and commendations.

In his complaint, plaintiff seeks (1) earlier dates of promotion to grades E-7 and E-8 and retroactive promotion to E-9, together with all attendant pecuniary benefits and (2) all pecuniary benefits allegedly due him as a result of the Correction Board’s adjustment to his E-6 date of rank. Plaintiff also requests attorney fees and costs.

II

In its motion to dismiss, as amended, defendant asserts that the court lacks power to order the retroactive promotions sought by plaintiff. Plaintiff counters that [734]*734the Correction Board’s failure to grant the promotions in question was arbitrary, capricious, unsupported by evidence and in violation of statute, and that, in such circumstances, the Tucker Act, 28 U.S.C. § 1491, gives this court jurisdiction to order the promotions. Plaintiff further contends that a refusal by this court to entertain plaintiff’s retroactive promotion claim would leave those in plaintiff’s position without recourse, since (1) plaintiff has already exhausted his administrative remedies and (2) Congress no longer permits correction of military records through private bills.

Ill

It has long been settled that a serviceman’s rights are statutory, not contractual. Bell v. United States, 366 U.S. 393, 401, 81 S.Ct. 1230, 1235, 6 L.Ed.2d 365 (1961); Wade v. United States, 212 Ct.Cl. 593, 595, 553 F.2d 104, cert. denied, 431 U.S. 940, 97 S.Ct. 2655, 53 L.Ed.2d 258 (1977). The Tucker Act, 28 U.S.C. § 1491, is the source of this court’s power to entertain claims based on statute. A statutory claim can be heard here only if the statute relied upon could fairly be interpreted as mandating recovery of money from the government. 28 U.S.C. § 1491(a)(1); Duncan v. United States, 229 Ct.Cl. 120, 138, 667 F.2d 36, 47 (1981), cert. denied, 463 U.S. 1228, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983).

Plaintiff asserts that the Correction Board Act, 10 U.S.C. § 1552, and the Military Pay Act, 37 U.S.C. § 204, possess the requisite money-mandating nature. Unquestionably, these provisions could be interpreted as money-mandating with respect to plaintiff’s claim for retroactive E-6 pay — the portion of plaintiff’s complaint that is no longer challenged by the instant motion. The Court of Claims held: “In the context of the correction of a military record ... once a discretionary decision is made to correct a record, the grant of appropriate money relief is not discretionary but automatic.” Denton v. United States, 204 Ct.Cl. 188, 195 (1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1949, 44 L.Ed.2d 449 (1975), accord Sanders v. United States, 219 Ct.Cl. 285, 301, 594 F.2d 804, 813 (1979). However, with respect to the retroactive promotions and accompanying monetary relief that plaintiff seeks, the statutes cited cannot be read as money-mandating. They could be so interpreted only if the Board’s correction of plaintiff’s records entitled him to further promotions as a matter of law. Voge v. United States, 844 F.2d 776, 782 (Fed.Cir.), cert. denied, — U.S. -, 109 S.Ct. 365, 102 L.Ed.2d 355 (1988); Ewanus v.

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Bluebook (online)
17 Cl. Ct. 732, 1989 U.S. Claims LEXIS 169, 1989 WL 94784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/upshaw-v-united-states-cc-1989.