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Porter v. United States

November 09, 1998


Before Michel, Clevenger, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Clevenger, Circuit Judge.

Appealed from: United States Court of Federal Claims

Judge Diane Gilbert Weinstein

United States Court of Appeals for the Federal Circuit


This appeal presents questions of first impression relating to the authority and duty of civilian boards for the correction of military records. The case involves the Air Force Board for the Correction of Military Records ("Air Board" or "AFBCMR"). The plaintiff and appellee, Gregory C. Porter, was twice passed over, in 1984 and 1985, for promotion to captain in the Air Force, and was honorably but involuntarily discharged in May 1985 under the statutory "up or out" rule. Thinking his initial passover to be the result of a faulty Officer Effectiveness Report ("OER"), Porter applied to the Air Board for correction of his record to exclude the challenged OER from his record, and to be considered again for promotion by another officer selection board. Before the Air Board acted on his application, Porter was passed over for promotion a second time in 1985.

The Air Board agreed with Porter that his record contained a faulty OER, and recommended to the Secretary of the Air Force that he be considered for promotion again by Special Selection Boards ("SSBs") convened under the authority set forth in 10 U.S.C. § 628 (1994), on his corrected record. The Air Board, however, did not recommend that Porter's previous passovers be voided. Such a recommendation would have removed the legal basis for Porter's 1985 discharge, resulting in constructive if not actual reinstatement to his pre-discharge rank of first lieutenant and entitlement to back pay and related benefits. The Air Board's unwillingness to make such a recommendation frames the issue for decision in this appeal.


Porter argues that the Air Board lacks the authority to refer his record to an SSB under 10 U.S.C. § 628 unless it also recommends that his previous passovers be voided, thus vacating his discharge and entitling him to back pay and related benefits. He bases his argument on his reading of section 628 and on holdings of our predecessor court, the United States Court of Claims, in cases governing the actions of civilian boards for the correction of military records taken at a time before SSBs were created and available to participate in the process of correction of military records. Porter argues that under those holdings the Air Board's recommendation that his record be presented to selection boards constitutes an implicit voidance of his two initial passovers and discharge.

The government argues to the contrary that the Air Board is not required by statute or case law to void initial passovers before recommending consideration by an SSB in every instance, and that no error lies in the Air Board's refusal to void Porter's passovers before recommending his assessment by SSBs. The government takes a more flexible view of the Air Board's powers, under its statutory charter, 10 U.S.C. § 1552 (1994), and under section 628. The government argues that, depending on the circumstances of a given case, the Air Board may correct such records as it deems necessary when recommending that an SSB be convened to replicate the work of the original selection boards that twice passed over a discharged officer. In some instances, such correction may involve voiding the initial passovers, and in other instances the recommended corrections may entail only correction of the record that was laid before the original selection boards. The government argues that the pre-section 628 case law of our predecessor court is inapplicable to the Air Board's authority to recommend referral of a discharged officer's record to an SSB.

After extended litigation before the Air Board and the United States Court of Federal Claims, the Court of Federal Claims agreed with Porter's arguments. It held that the Air Board acted arbitrarily when it referred Porter's case to SSBs without also voiding his initial passovers, with the stated consequences of entitlement to back pay and related benefits. See Porter v. United States, No. 91-1008C (Fed. Cl. May 24 & Aug. 6, 1996). The government brings this appeal, over which we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (1994). Because only questions of law are before us, we exercise our review authority independent of the views of the Court of Federal Claims. See Columbia Gas Sys., Inc. v. United States, 70 F.3d 1244, 1246 (Fed. Cir. 1995). As is evident from the foregoing and will become more so from the following, the technical aspects of this case and of the underpinnings of our predecessor court's holdings are complex. The core questions for decision, however, are simple: must the Air Board in every instance couple a recommendation to convene an SSB with voidance of previous passovers, and, if not, was the Air Board's recommendation in Porter's case to convene an SSB without voiding his two previous passovers arbitrary, capricious, unsupported by substantial evidence or contrary to law?

Essentially in agreement with the government's arguments in this appeal, we hold that the Court of Federal Claims erred in its assessment of the legal authority of the Air Board. Because the Air Board was authorized to correct Porter's record and recommend use of SSBs to consider Porter's promotion prospects in light of the corrections without also recommending voidance of Porter's previous discharge-mandating passovers, Porter is not entitled to back pay and related benefits. His discharge in 1985 was lawful.


Porter entered active duty with the Air Force in 1981 and was honorably, but involuntarily, discharged in 1985 under the military's "up or out" requirements after he was passed over twice for promotion from reserve first lieutenant to captain. See 10 U.S.C. §§ 627, 631 (1994); Air Force Reg. 36-12 (Oct. 1, 1984). Porter's first passover occurred before the Calendar Year 1984 B ("CY84B") captain promotion board. His second passover resulted from deliberations by the Calendar Year 1985 A ("CY85A") captain promotion board. Porter contested both passovers to the Air Board. The Air Board determined that a January 1984 OER had unfairly underrated Porter's promotion potential. The Air Board thus recommended to the Secretary of the Air Force that the OER be voided and that two SSBs (for each of the CY84B and CY85A captain promotion boards) convene to reconsider Porter for promotion. The Assistant Secretary of the Air Force, on behalf of the Secretary, accepted the Air Board's recommendation. The SSBs convened in March 1986 and determined that Porter would not have been promoted by either original promotion board even with the corrected records.

In 1988, Porter again applied to the Air Board for the correction of his records, alleging that the removal of the erroneous January 1984 OER had created a prejudicial gap in his record, that his duty titles had been incorrectly listed on some of his reports, and that a 1984 Letter of Evaluation ("LOE") attached to a November 1984 OER and written by the same reviewer as the January 1984 OER, repeated the substance of the January 1984 OER and perpetuated its negative effect. He also questioned whether his records had been properly compared to those of other officers during the review process. For relief, Porter sought "reinstatement" at the rank of captain, with back pay and allowances at that rank. The Air Board denied his application and his subsequent request for reconsideration after concluding that the SSBs had not acted improperly.

Porter began what became an extensive litigation before the Court of Federal Claims when he filed a pro se complaint in 1991 that repeated the substance of his allegations before the Air Board and sought back pay and various damages. On the government's motion for summary judgment, the court determined that the gap in Porter's record created by the missing 1984 OER was adequately cured by a letter explaining the gap to the SSBs. See Porter v. United States, No. 91-1008C, slip op. at 12 (Fed. Cl. Dec. 30, 1992). However, the court also determined that the 1984 LOE contained errors that were equal in significance and materiality to the errors of the voided OER, that Porter's job history was incorrectly reflected in his records and operated to his disadvantage, and that the government did not rebut several of Porter's allegations regarding procedural errors before the SSBs. Id. at 14-26. Deferring to the Air Board, the court declined to order back pay, and instead remanded the case. Id. at 27. The court directed the Air Board to reconsider Porter's case and determine whether the 1984 LOE and the misstated duty titles constituted a significant error or inJustice, and, if so, whether the errors were harmless because Porter would not have been promoted even with the errors corrected. Id. at 27-28, 30. In particular, the court stated that:

If, on remand, the AFBCMR determines that there were one or more significant errors in the records before the SSB, it shall make whatever recommendations to the Secretary it deems appropriate, including reinstatement, back pay, correction of records (including, but not limited to, voiding the SSB decisions), and another opportunity to be considered by an SSB sitting for the CY 84B and CY 85A selection boards.

Id. at 31.

On remand, the Air Board concluded that the misstated duty titles should be corrected and the LOE should be removed from Porter's record. Because the "recommended corrections will materially change the applicant's record," the Air Board recommended that Porter be again considered by two SSBs in place of the original CY84B and CY85A captain promotion boards. However, the Air Board concluded that insufficient evidence had been presented to "demonstrate the existence of probable error or inJustice in regard to applicant's request for promotion," and that

[i]t cannot be conclusively determined whether or not applicant would have been selected for promotion by the selection boards in question. We believe a duly constituted SSB applying the appropriate promotion criteria is in the most advantageous position to render this determination. We believe applicant's record, to include the above recommended corrections, can receive a fair and equitable consideration for promotion by the SSB process. Therefore, we do not recommend favorable action on his request for promotion.

In essence, the Air Board, composed entirely of civilians, did not consider itself bound to decide the relative merits of Porter's promotion prospects. Instead, it viewed an SSB--composed entirely of military officers--as better qualified to compare Porter's corrected record to the benchmark records that define the promotion threshold of the original selection board. In response to the Air Board's recommendation, the Secretary's designee then ordered that Porter's record, as corrected, be considered again by the two SSBs, acting in lieu of the CY84B and CY85A captain promotion boards. Those SSBs met in November 1993 and both recommended that Porter not be promoted. The case returned to the Court of Federal Claims on cross-motions for summary judgment. The government asserted that the decisions of the 1993 SSBs show a lack of nexus between the errors that had been corrected in Porter's records and the previous passover decisions: because the 1993 SSBs passed over Porter even on the corrected records, the government asserted that the errors before the earlier selection boards must be harmless. In addition, the government asserted that the 1993 SSBs suffered no defects. Porter's cross-motion alleged that a nexus indeed existed between the errors before the 1986 SSBs and their decisions, and that the 1993 SSBs committed three procedural errors. See Porter v. United States, No. 91-1008C, slip op. at 3 (Fed. Cl. Oct. 31, 1994), as clarified, No. 91-1008C (Fed. Cl. Dec. 30, 1994). On the cross-motions, the court ruled that there was no evidence that the 1993 SSBs had acted improperly with regard to two of Porter's alleged procedural errors. Id. at 4-5. As to whether the 1993 SSB proceedings contained inadequate benchmark records that were improperly rescored, as Porter alleged, the court remanded the case once again to the Air Board. The Air Board was ordered to review the full record before the 1993 SSBs to ensure that Porter's nonselections were not arbitrary, capricious, unsupported by substantial evidence, or legally erroneous. Id. at 9. In addition, the court determined that the Air Board had impermissibly given the 1993 SSBs the power to determine whether the flawed data before the 1986 SSBs amounted to harmless error, rather than making that determination itself before recommending that the 1993 SSBs decide anew whether Porter should have been promoted. See id. at 7-8. The court determined that the Air Board, by referring Porter's case to the SSBs, necessarily voided the original selection boards' passovers and thereby constructively reinstated Porter, thus entitling him to back pay. See id. The court therefore ordered that Porter's records be corrected to show reinstatement as of the day of his discharge in 1985 and entitlement to back pay until he is deemed passed over twice by lawful process and lawfully discharged. Id. at 9. In reaching its Conclusion, the court took its direction from a series of Court of Claims cases involving actions by civilian corrections boards that predated the enactment of 10 U.S.C. § 628. The cases relied on by the court in the December 1992 and October 1994 decisions, as chronologically decided, are Sanders v. United States, 594 F.2d 804 (Ct. Cl. 1979); Doyle v. United States, 599 F.2d 984 (Ct. Cl. 1979); Hary v. United States, 618 F.2d 704 (Ct. Cl. 1980); Evensen v. United States, 654 F.2d 68 (Ct. Cl. 1981); and Engels v. United States, 678 F.2d 173 (Ct. Cl. 1982).

The government moved promptly for clarification of the court's October 31, 1994, order, asserting that it would be improper to order Porter's reinstatement in light of the two passover decisions by the 1993 SSBs that were still in effect, although these decisions remained subject to review by the Air Board for potential procedural flaws pursuant to the court's remand order. In response, the court revised its order, as follows:

The AFBCMR having failed to do so explicitly, either in 1993 when it vacated the 1986 SSBs' passovers, or in 1985 when it vacated the CY 84B and CY 85A selection boards' passovers, the court assumes that Mr. Porter's records have been corrected constructively to show reinstatement in active duty at the rank of first lieutenant as of August 31, 1985, up until at least six months after his second passover by the 1993 SSB, see 10 U.S.C. § 631(a)91), (and longer if the 1993 SSBs' decisions are voided by the Secretary at the recommendation of the AFBCMR, or by this court). The court also assumes that, as the result of such constructive duty, Mr. Porter is entitled to back pay for that period, calculated in accordance with law. If the AFBCMR declines to recognize plaintiff's entitlement to such correction or benefits, the court will exercise its own authority to do so.

Porter v. United States, No. 91-1008C, slip op. at 4 (Fed. Cl. Oct. 31, 1994), as clarified, No. 91-1008C (Fed. Cl. Dec. 30, 1994). The court thus introduced a legal fiction to the record that Porter's initial two passovers had been voided, when in fact the record clearly reflects the Air Board's refusal to recommend that correction to Porter's record. On the second remand, the Air Board found that the 1993 SSBs had acted correctly and had not reversibly erred in determining that Porter would not have been promoted by the earlier review boards. The Air Board's Conclusions are set forth in a document denominated as "Second Addendum to Record of Proceedings" that details the proceedings at a meeting of the Air Board held on January 11, 1995, when Porter's request for correction of his records was denied.

In particular, the Air Board rejected the court's assumption in its amended order of December 30, 1994, that the Air Board had previously corrected Porter's records to vacate the earlier passovers and had thus constructively reinstated Porter to active duty with the right to pay. The Air Board explained its position in detail and at length. The heart of the Air Board view is its assertion that the cases relied upon by the court to support its assumed correction of Porter's record have no bearing on a recommendation by the Air Board that an SSB be convened to assess whether an officer should be promoted.

The Air Board explained its view that the statute creating SSBs, 10 U.S.C. § 628 (1994), altered the analytic process by which the Air Board had previously determined whether an officer's records should be corrected to show a recommendation of some promotion. According to the Air Board, nothing in the law prevented it from recommending correction of Porter's record and submission of the corrected record to an SSB without also recommending voidance of his previous passovers, constructive reinstatement and entitlement to back pay. In short, the Air Board asserted the right to recommend further assessment of Porter's qualification for promotion by an SSB without the Air Board itself first making a determination that the errors requiring correction were in fact not harmless to the nonselection decision of a previous selection board. At bottom, the Air Board asserted in the Second Addendum that it was not obligated to conduct the harmless error analysis prescribed by the Court of Federal Claims in its December 30, 1992, order. Although the harmless error test was designed to determine the relative merits for promotion of one officer (here, Porter) over other officers (both those selected and nonselected by the original selection boards), the Air Board had previously determined, in response to the December 30 order, that, in this particular case, it was unable to decide those relative merits on the basis of his corrected record. To the mind of the civilian corrections board, that decision would better be made by military personnel applying the appropriate selection criteria.

To the extent that the government lawyers appearing before the Court of Federal Claims had previously pitched their case in terms of whether the Air Board had in fact found the errors in Porter's record to be harmless, the Second Addendum made clear that the Air Board did not feel constrained in this case to apply the harmless error test. The legal theory on which the Air Board was proceeding was that the harmless error test, derived from pre-section 628 case law, is inapplicable to Porter's case.

The Air Board also responded to the remand order from the Court of Federal Claims directing the Air Board to decide the merits of Porter's contention of material procedural error concerning benchmarks used by the 1993 SSBs in scoring the pertinent officer records. As Porter understood the contents of the benchmarks used by the 1993 SSBs, his record was better than one of the records of an officer who had been selected by the CY85A captain promotion board. Thus, according to Porter, the 1993 SSB in essence imposed a "supercompetitive" standard, requiring him to outperform a selected officer, as opposed to simply matching the score of a selected officer.

The Air Board initially resisted this remand order on the ground that it might compel it to make a comparative decision as to which candidates were better qualified for promotion, a matter that the Air Board thought was better suited to an SSB decision. The Air Board nevertheless assessed Porter's contention. Even though Porter's record scored better than one of the officers selected by the CY85A captain promotion board, the other attributes of the selected captain's record demonstrated that Porter's record was overall less competitive. The Air Board found that there was "a clear distinction between the quality of the applicant's records and the quality of the benchmark records of the selectees and nonselectees from the original selection boards." The Air Board thus concluded that the procedural error cited by Porter did not undermine the 1993 SSB decision that Porter would have been passed over by the CY85A captain promotion board had his corrected record been before it in the first instance.

The case again returned to the Court of Federal Claims. After briefing and oral argument, the court agreed that the decisions of the 1993 SSBs contained no reversible error. See Porter v. United States, No. 91-1008C, slip op. at 7 (Fed. Cl. May 24, 1996). With regard to Porter's contention of procedural error due to improper benchmarks and scoring, the court concluded that "plaintiff's record is not clearly equal or superior to any of the benchmark records of officers selection [sic, selected] for promotion." Id. However, the court rejected the government's view of the Air Board's authority (as set forth in the Second Addendum) to recommend use of SSBs without also voiding previous passovers and the government's argument that pre-section 628 case law is inapplicable to this case. Id. at 6-7. The court again held that the Air Board's referral of Porter's case to the SSBs entitled him to back pay, because "referring an applicant to an SSB necessarily implies that at least one of his or her passovers was invalid, and an officer without two valid passovers cannot be discharged." Id. at 6 (emphasis in original). The court concluded that Porter had constructively served until the 1993 SSBs properly removed him, and that he should receive back pay for the period from his original discharge until his discharge following the nonselection decisions of the 1993 SSBs. Id. at 7. The government appeals, arguing that the Air Board never reinstated Porter and never was obligated to do so, either actually or constructively, and, as a result, Porter is not entitled to back pay. For his part, Porter supports the analysis of the Court of Federal Claims and does not argue on appeal that the decisions of the 1993 SSBs are infected with error.

This appeal raises questions of statutory interpretation of the law that provides for the creation and empowerment of civilian boards for the correction of military records, 10 U.S.C. § 1552 (1994), and the law that provides for the creation and operation of SSBs, 10 U.S.C. § 628 (1994). Those questions must be decided in the context of a body of law, developed by the Court of Claims before the enactment of section 628, that established rules for determination of whether an officer's involuntary discharge after two passovers was proper.


Section 1552 of title 10 gives the military secretaries power to correct military records using civilian boards. It reads, in relevant part:

(a)(1) The Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an inJustice. Except as provided in paragraph (2) [dealing with enlistment and promotion of enlisted soldiers] such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. The Secretary of Transportation may in the same manner correct any military record of the Coast Guard.

10 U.S.C. § 1552 (1994). Each military department has issued regulations that govern the operation and procedures of its board for the correction of military records. In the instance of the Air Force, the pertinent regulation is 36-2603, Air Force Board for Correction of Military Records, (Mar. 1, 1996) (codified as 32 C.F.R. § 865 (1997)). The Air Force also publishes Air Force Pamphlet 36-2607, entitled "Applicant's Guide to the AFBCMR," to provide information on the corrections process to applicants. 32 C.F.R. § 865.3(b). Section 1552 does not limit the kind of military record subject to correction. Consequently, a corrections board may entertain any kind of application for correction, ranging from changing the terms of a discharge, see Faircloth v. United States, 186 Ct. Cl. 113 (1968), to correction of error in citation of awards received, see Swann v. Garrett, 811 F. Supp. 1336 (N.D. Ind. 1992), to amending the records of Porter in this case, which include OERs, passover (or nonselect) decisions by promotion boards and SSBs, and discharge orders. Sheer volume of applications-approximately 5000 applications per year in the instance of the Air Board-suggests the wide range of subject matter embraced in the applications.

In the Air Force, the Air Board acts for the Secretary and its decision is final when it denies applications, except in the case of applications to correct records based on allegations of whistleblowing conduct protected by 10 U.S.C. § 1034 (1994). In whistleblower cases and all other cases involving favorable recommendations on applications, including recommendations that an officer be promoted, the Secretary of the Air Force acts as the final decisional authority. See 32 C.F.R. § 865.4(p). Therefore, in this case, the decisions by the Air Board denying Porter's application to void his various passovers stood as final decisions, whereas the Air Board's decision to grant his application to correct certain OERs was a recommendation upon which the Secretary, through his delegate, was required to and did act. When the issue at hand is whether an officer has properly been discharged ...

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