Vierrether v. United States

27 Fed. Cl. 357, 1992 U.S. Claims LEXIS 177, 1992 WL 386337
CourtUnited States Court of Federal Claims
DecidedDecember 23, 1992
DocketNo. 91-1482C
StatusPublished
Cited by8 cases

This text of 27 Fed. Cl. 357 (Vierrether 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
Vierrether v. United States, 27 Fed. Cl. 357, 1992 U.S. Claims LEXIS 177, 1992 WL 386337 (uscfc 1992).

Opinion

OPINION

MARGOLIS, Judge.

This military back pay case comes before the court on the defendant’s motion for summary judgment and the plaintiff’s cross motion for summary judgment. The plaintiff, Stephen Vierrether, is a former Chief Boatswain’s Mate in the Coast Guard. The Coast Guard instituted an involuntary reduction in force program during 1988, and through this program Vierrether was involuntarily, but honorably, discharged from the Coast Guard on June 2, 1988. Vierrether alleges that the Coast Guard discharged him without a hearing before the Coast Guard administrative discharge board prior to his discharge. He contends he is entitled to such a hearing under Coast Guard personnel regulations and under the Due Process Clause of the U.S. Constitution. He also attacks his discharge for various procedural defects and alleges that the decision of the Coast Guard Deputy General Counsel upholding his discharge was arbitrary and capricious and void because it came after the statutory time deadline. He seeks correction of his military records, back pay and allowances, attorney’s fees and costs.

After careful review of the record and after oral argument, this court finds that the defendant is entitled to judgment as a matter of law. Accordingly, the court grants defendant’s summary judgment motion and denies the plaintiff’s cross motion for summary judgment.

FACTS

The RIF Program

In December 1987, Congress enacted a budget that restricted the appropriation for the Coast Guard. This caused a budget shortfall. The Coast Guard Command opted to meet the shortfall in part by reducing its personnel. The Coast Guard first implemented a program to permit personnel to leave the service voluntarily, known as the “voluntary early out program.” This program failed to reduce personnel sufficiently. The Coast Guard then instituted, on February 23, 1988, an involuntary reduction in force (“RIF”) program. The order implementing the RIF was known as AL-COAST 22/881 ALCOAST 22/88 announced that any enlisted service member who met the following criteria was a candidate for an involuntary discharge:

A. has a characteristic average of less than 3.0 for any factor using all marks assigned on two most recent performance evaluations prior to [date time group] of this ALCOAST____
B. is presently on performance probation in accordance with art 12-B-9 of [Coast Guard Personnel Manual].
C. has, prior to this [message], been awarded nonjudicial punishment/convicted by a summary court martial two or more times in the preceding 12 months.
D. has been convicted by a special or general court-martial within the preceding 24 months.

In normal circumstances, Coast Guard members with 8 or more years of military service are entitled to a hearing before an administrative discharge board, if the Coast Guard intends to discharge them involuntarily prior to the end of their term of enlistment. ALCOAST 22/88 suspended the right to a hearing for members to be discharged under the RIF program.2

[360]*360The plaintiff, Stephen Vierrether, had served in the Coast Guard for over 17 years and achieved the rank of Chief Boatswain’s Mate. Although the parties disagree as to how to characterize Vierrether’s overall performance, there appears to be no dispute that Vierrether’s performance evaluations met one of the criteria in ALCOAST 22/88.3 For the two most recent evaluations prior to ALCOAST 22/88, Mr'. Vierrether’s evaluations had a characteristic average of less than 3.0 for at least two factors on the performance evaluation. The plaintiff claims that those particular performance evaluations were the result of bias and prejudice against him.

On March 17, 1988, the Coast Guard issued another order, ALCOAST 25/88. AL-COAST 25/88 applied to all of the Coast Guard members who met the criteria in ALCOAST 22/88. ALCOAST 25/88 asked commanding officers to submit the names of any members who the commanding officer could recommend to be retained in the Coast Guard. ALCOAST 25/88 established a panel to review these recommendations to determine which members would be retained. It further directed the Coast Guard to retain members who had 18 or more years of service until they were eligible to retire.

Vierrether’s commanding, officer recommended that the Coast Guard retain Vierrether because Vierrether had service of 17 years and 9 months. A panel of Coast Guard officers and enlisted personnel thereafter reviewed Vierrether’s entire military service record and decided to discharge him. Vierrether requested a waiver to allow him stay in the service until he reached 20 years of service, but this request was denied. Vierrether was discharged on June 2, 1988, with an honorable discharge and an RE-4 code on his discharge form indicating that he was not permitted to reenlist.

The BCMR Review

On June 3, 1988, Vierrether submitted a petition to the Coast Guard Board for Correction of Military Records (“BCMR”) pursuant to 10 U.S.C. § 1552, seeking to set aside his discharge. Vierrether argued that it was unlawful for the ALCOASTs to suspend the right to a hearing before an administrative discharge board. He argued on several grounds that the AL-COASTs purported suspension of that right was ineffective, that he had a separate right to a predischarge hearing under the Due Process Clause, and that his performance evaluations were the product of bias and prejudice.

The BCMR concluded that the Coast Guard violated its regulations by refusing Vierrether a predischarge hearing.4 The Deputy General Counsel (“Deputy”), acting on behalf of the Secretary of Transportation, overruled the BCMR’s decision on April 18, 1991 and denied Vierrether’s petition. The Deputy adopted the factual findings of the BCMR, but concluded that it was lawful to suspend the right to a hearing, the suspension was effective against Vierrether, and that an honorable discharge does not trigger any Due Process rights. Both the BCMR and the Deputy found no evidence of bias or prejudice in Vierrether’s evaluations. This lawsuit followed.

DISCUSSION

The plaintiff bears a heavy burden of proof. This court may not reverse the [361]*361Secretary’s decision to overrule a BCMR decision unless the plaintiff can show, by “cogent and clearly convincing evidence,” that the Secretary acted arbitrarily, capriciously, in bad faith, contrary to law or regulation, or that his determination was not supported by substantial evidence. Arens v. United States, 969 F.2d 1034, 1037 (Fed.Cir.1992); Jones v. United States, 7 Cl.Ct. 673, 679 (1985); Sanders v. United States, 219 Ct.Cl. 285, 301-02, 594 F.2d 804 (1979). A court may not substitute its judgment for that of the Board or the Secretary if reasonable minds could differ. Jones, 7 Cl.Ct. at 679; Sanders, 219 Ct.Cl. at 302, 594 F.2d at 813. This is true particularly in military back pay cases, because courts are obligated to allow the greatest deference to the armed services in their administration of personnel matters. Orloff v. Willoughby,

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Bluebook (online)
27 Fed. Cl. 357, 1992 U.S. Claims LEXIS 177, 1992 WL 386337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vierrether-v-united-states-uscfc-1992.