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10/03/77 Major Adolph H. Knehans, v. Clifford L. Alexander

October 3, 1977

MAJOR ADOLPH H. KNEHANS, JR., APPELLANT

v.

CLIFFORD L. ALEXANDER, SECRETARY OF THE ARMY 1977.CDC.228 DATE DECIDED: OCTOBER 3, 1977



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia (D.C. Civil 1978-73).

APPELLATE PANEL:

Tamm, Robinson and Robb, Circuit Judges. Opinion for the court filed by Circuit Judge Tamm. Dissenting opinion filed by Circuit Judge Robinson.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM

Our appellant, former Major Knehans, was honorably discharged from the United States Army pursuant to 10 U.S.C. § 3303 (1970) *fn1 for having been twice passed over for promotion by a Statutory Selection Board. In order to prevent his imminent discharge, Knehans brought an action in the United States District Court for the District of Columbia to invalidate it on grounds of procedural noncompliance, alleging that submission of his defectively constituted personnel file had rendered the review to which he was statutorily entitled a nullity. After Knehans had exhausted his available administrative remedies by unsuccessfully applying for relief from the Army Board for Correction of Military Records , see generally id. § 1552, the district court granted the Army's motion for summary judgment. Knehans v. Callaway, 403 F. Supp. 290 (D.D.C. 1975). This appeal promptly ensued, in which Knehans advances essentially two distinct arguments: (1) that by statute his discharge was conditioned upon his promotion having been properly considered by two Statutory Selection Boards and that consideration of his properly compiled file by an Army Standby Advisory Board was insufficient compliance with that condition; and (2) that he had a due process right to a hearing because his discharge implicated his constitutionally protected interests in "liberty" and "property". For the reasons which follow, we affirm.

We treat appellant's last contention first since it is the least compelling and may thus be disposed of expeditiously. Knehans asserts that "although this court has advanced the view that a hearing is necessary where an officer suffers a loss of liberty, and damage to reputation and loss of employment is defined as liberty, the court below held otherwise." Appellant's Brief at 18. The short answer to this is that whatever "liberty" interest Knehans may have had in his reputation, see Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), has not been impinged by the mere fact of his honorable discharge and nonretention in the Army,*fn2 see Board of Regents v. Roth, 408 U.S. 564, 572-75, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), especially since the reasons for his nonpromotion were never publicly disseminated, compare Appellant's Reply Brief at 13 with Codd v. Velger, 429 U.S. 624, 627-28, 51 L. Ed. 2d 92, 97 S. Ct. 882 (1977) and Bishop v. Wood, 426 U.S. 341, 348-49, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976), and, secondly, that he had no constitutionally protected entitlement to continued active duty as a commissioned officer in the Army since, absent more, any objectifiable expectancy supporting such an entitlement was sufficiently negated by the express provisions of 10 U.S.C. § 3303 (1970).*fn3 See generally Pauls v. Secretary of the Air Force, 457 F.2d 294, 297 (1st Cir. 1972). In sum, we find no reason whatsoever to fault the district court's analysis of appellant's procedural due process claims based on asserted liberty and property interests.

As to appellant's other argument, it is undisputed that both Selection Boards reviewed a personnel file on appellant which in certain respects was not strictly in accord with Army directives. Knehans views this oversight as automatically voiding his discharge and, at the same time, as entitling him to retention in the service at least until two new Selection Boards have been convened at one-year intervals to consider his promotability on the basis of a proper file. Fortunately, we are not required by the circumstances presented here to accept this extreme position, interfering as it would with personnel matters better left in most cases to the discretion of the military, compare Orloff v. Willoughby, 345 U.S. 83, 93-94, 97 L. Ed. 842, 73 S. Ct. 534 (1953) with Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir. 1971), for he is entitled to no such relief either by statute or regulation.

Evincing some confusion on this point, appellant asserted in his brief that "it is admitted herein that appellant has not been passed over by two statutory selection boards . . .," Appellant's Brief at 10, which of course is incorrect for he quite certainly had been. It is true that subsequent to these two nonpromotion decisions the Army determined that one of several Officer Efficiency Reports had been improperly included in the review file*fn4 and that several letters of commendation which should have been included therein had not been.*fn5 Such a showing of error, however, does not nullify the Selection Boards' proceedings nor requires that appellant once again be considered by two separate ones, for nothing conditions the validity of Selection Board proceedings upon the review of a perfectly compiled personnel file. Though Army regulations do specify what documents are properly contained in an officer's selection file, AR 624-100 paras. 16-17; J.A. 82-83, those same regulations provide:

Selection board action is administratively final. Reconsideration for promotion will be afforded only in those cases where material error was present in the records of an officer when reviewed by a selection board. This determination will be made by Headquarters, Department of the Army.

Id. para. 18(b); J.A. 83. Thus, in this instance, appellant must take "the bitter with the sweet", and the fact that the Secretary of the Army subsequently directed a Standby Advisory Board*fn6 to evaluate the corrected file vis-a-vis a pool of others was simply an act of administrative grace about which appellant can scarcely complain.

By the same token, appellant's challenge to the ABCMR's proceedings*fn7 is, at bottom, irreconcilable with a long line of precedent in this circuit and others that, subject to certain exceptions inapplicable here, an aggrieved military officer must first exhaust his administrative remedies before his particular service's Board for Correction of Military Records prior to litigating his claims in a federal court. See, e.g., Horn v. Schlesinger, 514 F.2d 549, 551 (8th Cir. 1975); Sohm v. Fowler, 124 U.S. App. D.C. 382, 365 F.2d 915 (1966); McCurdy v. Zuckert, 359 F.2d 491 (5th Cir.), cert. denied, 385 U.S. 903, 87 S. Ct. 212, 17 L. Ed. 2d 133 (1966). Compare Ogden v. Zuckert, 111 U.S. App. D.C. 398, 298 F.2d 312 (1961). This rule must logically rest on the proposition that such a Correction Board, charged with a responsibility to "correct an error or remove an injustice," 10 U.S.C. § 1552(a) (1970), has by implication sufficient authority to provide the relief appellant now seeks: full reinstatement and backpay. See, e.g., Hodges v. Callaway, 499 F.2d 417, 422 (5th Cir. 1974); Sohm (supra) 365 F.2d at 917; Ogden (supra) 298 F.2d at 317-18 (Burger, J., dissenting); Caddington v. United States, 147 Ct. Cl. 629, 178 F. Supp. 604 (1959). See also 10 U.S.C. 1552 (d) (1970).

In this respect, the Army's Correction Board is, as the district court properly characterized it, "a vital part of the promotion apparatus established by Congress," 403 F. Supp. at 294; see Horn (supra) 514 F.2d at 552; Hodges (supra) 499 F.2d at 422, and appellant must show that its decision not to reinstate him on the basis of a corrected file was arbitrary, capricious or otherwise unlawful. See, e.g., Horn (supra) 514 F.2d at 553 & n.14; Yee v. United States, 206 Ct. Cl. 388, 512 F.2d 1383, 1386 (1975). The district court concluded that he had failed to sustain his burden of proof in this regard, and we fully agree. See Mindes v. Seaman, 501 F.2d 175, 176 (5th Cir. 1974).

Not finding any of appellant's other arguments meritorious, the summary judgment awarded ...


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