Link , 652 F.2d 69 ( 1981 )

Military pay; promotion; passover for promotion; defective Officer Effectiveness Reports; harmless error; when made a matter of record. — Plaintiff, a former Air Force captain who, having twice failed of promotion to the permanent grade of major, was involuntarily separated from service in accordance with the requirements of 10 U.S.C. § 8303(d) (1976), seeks review and invalidation of a decision by the Air Force Board for the Correction of Military Records (the Board) denying an application that sought the voidance of two Officer Effectiveness Reports (OERs), the removal of all non-selections for promotion to the temporary grades of major and the modification or reconstruction of his record so as to reflect a promotion to these grades upon initial consideration. Plaintiff seeks reinstatement and back pay. Plaintiff charges one of the OERs with being materially false and erroneous and the other with having been prepared and promulgated in contravention of standards prescribed by governing regulations. On May 28,1980 Trial Judge John P. Wiese filed a recommended opinion affirming the decision of the Board that insufficient relevant evidence had been presented by plaintiff to warrant a finding of probable error or injustice. The trial judge affirmed the Board’s conclusion that the nonobjectivity of the first challenged OER had not been substantiated, and that the second OER satisfied the minimum required period of 90 days, was authored by the proper rating official and was not changed after it had become a matter of record. The trial judge concluded that on the evidence presented, a case for the voidness of the challenged OERs has not been shown. There being, then, no occasion to say that plaintiff was not considered for promotion on the basis of a fair and objective record, the claims for reinstatement and back pay must be denied. On February 24, 1981 the court, by order, adopted the recommended decision of the trial judge as the basis for its judgment in this case and dismissed the petition.