**United States Court of Appeals for the Federal Circuit**

03-5116

DAVID C. ROTH,

> Plaintiff-Appellee,

v\.

UNITED STATES,

> Defendant-Appellant.

[Guy J. Ferrante]{.underline}, King & Everhard, P.C., of Springfield,
Virginia, argued for plaintiff-appellee.

[J. Reid Prouty]{.underline}, Attorney, National Courts Section,
Commercial Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for defendant-appellant. With him
on the brief were [Peter D. Keisler]{.underline}, Assistant Attorney
General, [David M. Cohen]{.underline}, Director, and [Bryant G.
Snee]{.underline}, Assistant Director.

Appealed from: United States Court of Federal Claims

Senior Judge Reginald W. Gibson

United States Court of Appeals for the Federal Circuit

03-5116

David C. Roth,

Plaintiff-Appellee,

v\.

UNITED STATES,

Defendant-Appellant.

[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

DECIDED: August 11, 2004

[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

Before MICHEL, CLEVENGER, and SCHALL, [Circuit Judges]{.underline}.

SCHALL, [Circuit Judge]{.underline}.

David C. Roth was given mandatory retirement from the United States Air
Force at the rank of major, effective July 1, 1995, after twice having
been nonselected for promotion to the rank of lieutenant colonel. This
followed a mandatory discharge in 1989 for failure to be promoted to
major and subsequent reinstatement and promotion to that rank after
corrective action by the Air Force Board for Correction of Military
Records ("Board"). Following an unsuccessful application to the Board
after his second separation, Mr. Roth filed suit in the United States
Court of Federal Claims on October 27, 2000. In his suit, he sought
reinstatement to the rank of major as of July 1, 1995, back pay,
benefits, and the correction of his military record.

On April 15, 2003, the Court of Federal Claims granted judgment in Mr.
Roth's favor based on the administrative record. The court first ruled
that Mr. Roth was entitled, through Board action, to various corrections
of his military record. The corrections were (i) upgrading the
indorsement levels on three of his officer effectiveness reports
("OERs"); (ii) removal of the notation "Corrected Copy" from his OER for
the period ending March 27, 1984 ("March 1984 OER"); (iii) forwarding
recommendations for approval of an end-of-tour decoration for his
service at Shaw Air Force Base ("AFB"); (iv) awarding an end-of-tour
decoration for his service at Ramstein AFB; (v) insertion of an Air
Force ("AF") Form 77 in his record explaining the lack of an OER for the
eleven months prior to his involuntary separation from the Air Force in
January of 1989; and (vi) insertion of an AF Form 475, Training Report,
to reflect Air Force Institute of Technology ("AFIT") sponsorship of his
attendance at a graduate school program during the twenty-nine month
period that began in February of 1989 during which he was involuntarily
separated from the Air Force. After correcting Mr. Roth's record, the
Court of Federal Claims voided his calendar year 1993 and 1994
nonselections for promotion to lieutenant colonel and directed the Board
to reinstate him to active duty at the rank of major retroactive to July
1, 1995, with back pay and benefits. Finally, the court ordered the
Board to send Mr. Roth's corrected record to Special Selection Boards
("SSBs") to determine whether, if Mr. Roth had gone before the 1993 and
1994 selection boards with his record as corrected, he would have been
promoted to lieutenant colonel. [Roth v. United States]{.underline}, 56
Fed. Cl. 239 (2003).

The government now appeals the decision of the Court of Federal Claims.
It argues that the court exceeded its authority when it directed the
Board to correct Mr. Roth's record. In the alternative, it urges,
assuming record corrections were in order, the court erred in the
further relief it granted. According to the government, the court simply
should have directed that Mr. Roth's corrected record be referred to
SSBs for a determination as to whether, if Mr. Roth had gone before the
1993 and 1994 lieutenant colonel selection boards with his record as
corrected, he would have been promoted. The government contends that the
court should not have voided Mr. Roth's two nonselections for promotion
and ordered him retroactively reinstated to active duty.

For the reasons set forth below, we see no error in the decision of the
Court of Federal Claims insofar as it (i) directed the upgrading of the
indorsement levels on three of Mr. Roth's OERs; (ii) ordered the
forwarding of recommendations for approval of an end-of-tour decoration
for Mr. Roth's service at Shaw AFB; (iii) ordered that an end-of-tour
decoration be awarded for Mr. Roth's service at Ramstein AFB; and
(iv) ordered the insertion of an AF Form 77 explaining the lack of an
OER for the eleven months prior to Mr. Roth's initial separation. We
also see no error in the court's decision insofar as it ordered that
SSBs be convened for the 1993 and 1994 lieutenant colonel selection
boards. We agree with the government, however, that the Court of Federal
Claims exceeded its authority in ordering the removal of the "Corrected
Copy" notation on the March 1984 OER and in ordering that a Training
Report be added to Mr. Roth's record reflecting AFIT sponsorship of a
graduate course during his previous involuntary separation.
Nevertheless, on the latter point, we do think that Mr. Roth is entitled
to a nonprejudicial correction of his record to cover the gap in his
service record from January 31, 1989, to June 27, 1991. We also agree
with the government that the Court of Federal Claims erred in voiding
Mr. Roth's 1993 and 1994 nonselections for promotion to lieutenant
colonel and in reinstating him to active duty at the rank of major with
back pay and benefits, retroactive to July 1, 1995.

Thus, we affirm the decision of the Court of Federal Claims insofar as
it directed record corrections (i)-(iv) above in the preceding
paragraph. However, we modify the court's decision insofar as it ordered
that a Training Report be added to Mr. Roth's record reflecting AFIT
sponsorship during his involuntary separation. Finally, we reverse the
court's decision insofar as it ordered the removal of the "Corrected
Copy" notation on the March 1984 OER, voided Mr. Roth's 1993 and 1994
nonselections for promotion to lieutenant colonel, and ordered him
retroactively reinstated to active duty at the rank of major with back
pay and benefits. The case is remanded to the Court of Federal Claims
with the instruction that the court, in turn, remand the case to the
Board for further proceedings. In remanding the case to the Board, the
court is to instruct the Board to make the four record corrections noted
above and to correct Mr. Roth's record with respect to the gap in
service between January 31, 1989, and June 27, 1991. The court also is
to instruct the Board to convene SSBs for the 1993 and 1994 lieutenant
colonel selection boards to consider Mr. Roth for promotion to
lieutenant colonel in light of the corrections that will have been made
in his record. In sum, we affirm-in-part, modify-in-part,
reverse-in-part, and remand with instructions.

# BACKGROUND

I.

Mr. Roth was commissioned a second lieutenant in the Air Force Reserve
on June 10, 1977. By December 31, 1977, he had attained extended active
duty status. Soon thereafter, he became Regular Air Force and was
promoted to the rank of captain. In June 1982, he assumed duties at Shaw
AFB, South Carolina, as Intermediate Command (Ninth Air Force) Inspector
General Air Intelligence Inspector. On each of his OERs, including the
one ending June 20, 1983 ("June 1983 OER"), he received impeccable
performance ratings. In addition, each of his OERs was indorsed by a
brigadier general.[^1] [Roth]{.underline}, 56 Fed. Cl. at 242.

Between June 1983 and March 1984, Mr. Roth was investigated by the Air
Force Office of Special Investigations ("AFOSI") as a result of
allegations of personal wrongdoing. [Id.]{.underline} Based solely upon
the fact of these allegations, Mr. Roth received an unfavorable mark on
his March 1984 OER, covering the period June 21, 1983, to March 27,
1984. On Item 9 of the Professional Qualities category, which queried
whether "\[o\]ff duty personal problems detracted from an otherwise
excellent professional image," he received a "Meets Standard" rating.
[Id.]{.underline} In addition, the indorsement on his March 1984 OER was
from the Ninth Air Force Inspector General (a colonel), rather than from
the Ninth Air Force Vice Commander (a brigadier general), which had been
the case previously.

The AFOSI investigation closed on July 6, 1984, after the issuance of
the March 1984 OER, and Mr. Roth was ultimately absolved of all charges
of wrongdoing. His two subsequent OERs, for the periods covering March
28, 1984, to January 28, 1985 ("January 1985 OER"), and January 29,
1985, to June 1, 1985 ("June 1985 OER"), nevertheless reflected the same
lowered indorsement level of only colonels, one serving as Ninth Air
Force Inspector General and the other as Ninth Air Force Deputy Chief of
Staff for Intelligence. In the summer of 1985, Mr. Roth was given a
permanent change of station to Homestead AFB, but he did not receive any
decorations recognizing his three years of service at Shaw AFB. In July
1987, he was transferred to Ramstein AFB, Germany.

Mr. Roth was passed over for promotion to the rank of major on September
28, 1987, and again on June 6, 1988. As a result, he was involuntarily
separated from the Air Force with an honorable discharge on January 31,
1989.[^2] [Roth]{.underline}, 56 Fed. Cl. at 242, 243 n.2. Upon his
separation, he received neither a decoration nor an OER for his eleven
months of service at Ramstein AFB.

In March 1989, Mr. Roth applied to the Board for relief. In his
application, he requested (i) that Item 9 on his March 1984 OER be
upgraded to "Well Above Standard"; (ii) that he be reconsidered for
promotion by an SSB; and (iii) that if selected by an SSB, he be
reinstated to active duty. [In the Matter of Roth]{.underline}, No.
89-01387, slip op. at 1 (A.F.B.C.M.R. Oct. 31, 1989). On October 31,
1989, the Board recommended upgrading Item 9 of the March 1984 OER to
"Well Above Standard" and replacing the previous comments on his March
1984 OER with the comment "Behavior and bearing were exemplary."
[Id.]{.underline} at 3. The Board also convened two SSBs, which met on
May 7, 1990, to reconsider Mr. Roth's promotion to major for the
calendar years 1987 and 1988, based on the corrected March 1984 OER.
[Id.]{.underline}; [Roth]{.underline}, 56 Fed. Cl. at 242-43. Although
the SSB for calendar year 1987 did not recommend his promotion, the SSB
for calendar year 1988 concluded that Mr. Roth would have been promoted
to major by the original selection board on the basis of his corrected
March 1984 OER. [Roth]{.underline}, 56 Fed. Cl. at 242-43.

In a formal request to return to active duty on June 16, 1990, Mr. Roth
informed the Air Force that after his involuntary separation, he had
enrolled in an advanced degree program at the Claremont Graduate School
in Claremont, California, where he was working toward a Ph.D. in
International Political Economy. [Id.]{.underline} at 243. He asked that
he be allowed to complete the program, perhaps under sponsorship by
AFIT, so that a nonprejudicial explanation for his absence from active
duty could be placed in his record. [Id.]{.underline} Mr. Roth took his
request to the Board, which sought the opinion of the Air Force Military
Personnel Center ("AFMPC"). [In the Matter of Roth]{.underline}, No.
89-01387, slip op. at 2 (A.F.B.C.M.R. Jan. 30, 1991). The AFMPC
indicated that AFIT does not itself sponsor students, and that both the
Air Force Academy and Air Force Intelligence (Mr. Roth's last duty
station) declined to sponsor Mr. Roth for the AFIT program.
[Id.]{.underline} Based on the AFMPC's further explanation that no
graduate education quota in Mr. Roth's degree area had been established
by the Air Force for fiscal year 1991, the Board refused to provide Mr.
Roth with AFIT sponsorship. [Id.]{.underline}

The Board did decide, however, that Mr. Roth should be reinstated as a
result of the SSB decision for calendar year 1988. The Board further
determined that his record should be corrected for the twenty-nine month
period from January 31, 1989, to June 26, 1991, during which he was
separated, to show that "he was not discharged from all appointments on
31 January 1989 but on that date, he was ordered Permanent Change of
Station (PCS) to his home . . . ." [Id.]{.underline} On June 27, 1991,
Mr. Roth was returned to active duty at the rank of major, retroactive
to January 31, 1989. [Roth]{.underline}, 56 Fed. Cl. at 243.

II\.

Upon his return to active duty, Mr. Roth was assigned to the Defense
Intelligence Agency in a Joint Staff assignment at the Department of
Defense. By the time the lieutenant colonel selection board met in
October 1993, Mr. Roth had received only three OERs since his return to
active duty, [see]{.underline} [In the Matter of Roth]{.underline}, No.
89-01387, slip op. at 3 (A.F.B.C.M.R. June 2, 1999), whereas other
candidates with competing service generally had received five or six.
[Roth]{.underline}, 56 Fed. Cl. at 243 n.8. Mr. Roth was passed over for
promotion to lieutenant colonel. After a subsequent passover in 1994, he
was given mandatory retirement from active duty effective July 1,
1995.[^3] [Id.]{.underline} at 243 & n.8.

On August 29, 1995, Mr. Roth submitted to the Board a Request for
Reconsideration. He asked, [inter]{.underline} [alia]{.underline}, that
his records be corrected to reflect direct promotion to lieutenant
colonel as if he had been selected by the October 1993 selection board.
Mr. Roth asserted that he was denied "fair and equitable consideration"
for promotion to lieutenant colonel in 1993 and 1994 because his record
was not "substantially complete." Mr. Roth argued that as a result of
omissions that could be traced directly to his then-corrected March 1984
OER and his erroneous separation in 1989, his record included the
following errors:

> 11 unrated months prior to his 1989 separation; 2 ½ unrated years
> between his erroneous 1989 separation and 1991 reinstatement;
> misleading, inaccurate, and improperly reduced indorsement levels on
> OERs closing 27 March 1984, 28 January 1985, and 1 June 1985; lack of
> deserved decorations upon transfer from Shaw AFB in 1987 and Ramstein
> Air Base in 1989; direct reference to restoration to active duty by
> \[Board\] action on AF Form 77; "Corrected copy" reference on 27 March
> 1984 OER; and PRFs for CY93 and CY94 lieutenant colonel promotion
> boards prepared on basis of inaccurate and incomplete personnel
> record.[^4]

Mr. Roth urged that "a directed promotion to the grade of lieutenant
colonel would be the most appropriate way to remove the 'consequences'
of \[his\] flawed 1984 OER once and for all."

On the merits of Mr. Roth's claims, the AFMPC recommended that the
Board: (i) order the March 1984 and January and June 1985 OERs
reaccomplished with upgraded indorsements; (ii) deny the request to
remove the "Corrected Copy" notation from the corrected March 1984 OER;
(iii) deny the request for an end-of-tour decoration from Shaw AFB;
(iv) award an end-of-tour decoration from Ramstein AFB; (v) place a form
in Mr. Roth's record indicating that no rating was available for the
last eleven months of active duty prior to his separation in 1989
"through no fault of the applicant"; (vi)  deny the request for an AFIT
Training Report for the twenty-nine months of Mr. Roth's involuntary
separation; (vii) deny the request to alter the language on his July
1991 AF Form 77; (viii) deny any correction to the PRFs for the 1993 and
1994 selection boards; (ix) deny Mr. Roth direct promotion to lieutenant
colonel; and (x) should the Board make the recommended corrections, send
Mr. Roth's record to an SSB for consideration for promotion to
lieutenant colonel. Memorandum from the AFMPC to the Board at 4-7 (Oct.
1, 1996).

Despite the AFMPC's admission of certain errors in Mr. Roth's record, on
June 2, 1999, the Board denied Mr. Roth's Request for Reconsideration
for failure to "demonstrate the existence of probable material error or
injustice . . . ." [In the Matter of Roth]{.underline}, slip op. at 10
(June 2, 1999). Specifically addressing Mr. Roth's request for direct
promotion to lieutenant colonel, the Board found no evidence that Mr.
Roth's record was "so inaccurate or misleading that the members of the
duly constituted selection board . . . were precluded from rendering a
reasonable decision concerning his promotability in comparison to his
peers." [Id.]{.underline} at 8. With regard to his requested record
corrections, the Board found "insufficient relevant evidence . . . to
demonstrate the existence of probable error or injustice warranting
corrective action." [Id.]{.underline}

III\.

On October 27, 2000, Mr. Roth filed suit in the Court of Federal Claims.
In his complaint, he asserted (i) that the Board's June 2, 1999 decision
was arbitrary, capricious, and contrary to law; (ii) that he was
entitled to promotion consideration on a fair and equitable basis;
(iii) that his 1993 and 1994 nonselections for promotion to lieutenant
colonel were unlawful because they were based on a record that did not
reflect his career on a fair and equitable basis; (iv) that he was
therefore entitled to active duty pay, allowances, and other benefits at
the rank of major from his unlawful mandatory retirement on July 1,
1995; and (v) that he also was entitled to have deleted from his record
the 1993 and 1994 nonselections for promotion and his mandatory
retirement, and to have his record modified to reflect continuous active
duty service. [Roth]{.underline}, 56 Fed. Cl. at 244.

In response, the government filed a motion to dismiss or, in the
alternative, a motion for judgment on the administrative record. Mr.
Roth responded by filing a cross-motion for judgment on the
administrative record. The court ruled on those cross-motions on April
15, 2003.

In its decision, the court addressed in turn each of Mr. Roth's requests
for relief. [Id.]{.underline} at 246. The court determined that the
Board's refusal to upgrade the indorsement levels on Mr. Roth's March
1984 and January and June 1985 OERs, despite the fact that the AFMPC
admitted that Mr. Roth's record warranted the corrections, was arbitrary
and capricious. [Id.]{.underline} at 251. According to the court, the
Board's self-imposed standard that Mr. Roth's "evaluators were \[not\]
[precluded from]{.underline} forwarding the contested reports for higher
level indorsements" was not supported in law. [Id.]{.underline}
(emphasis added by the court). In addition, the court was persuaded by
explanations from former members of Mr. Roth's chain of command that had
it not been for the pending AFOSI investigation, Mr. Roth would have
received higher-level indorsements on the OERs. [Id.]{.underline} The
court thus ordered the indorsements on the three OERs to be upgraded.

The court also ordered the Board to remove the notation "Corrected Copy"
from Mr. Roth's corrected March 1984 OER and to apply discretionary
language, pursuant to note 7 of AFR 31-11, table 4, that would be
innocuous as far as Mr. Roth's prospects for promotion were concerned.
[Id.]{.underline}

The court determined that the Board's decision with respect to
end-of-tour decorations from Shaw and Ramstein AFBs was arbitrary and
capricious as well. [Id.]{.underline} at 252. Again, the court concluded
that the Board's rationale, that there was "no evidence that the members
of \[Mr. Roth's\] chain of command were [precluded from]{.underline}
recommending him for an end of tour decoration when he departed Shaw
AFB," had no basis in law. [Id.]{.underline} (emphasis added by the
court). Thus, the court ordered the Board to forward the recommendations
for the Shaw AFB decoration for determination whether the award should
be issued. [Id.]{.underline} For the same reason, and also because the
AFMPC admitted it was warranted, the court ordered the Board to award
Mr. Roth an end-of-tour decoration for his service at Ramstein AFB.
[Id.]{.underline}

The court also ordered the Board to issue an AF Form 77 for the
eleven-month period from March 8, 1988, to January 30, 1989, with
language, consistent with the AFMPC's recommendation, that no report was
available for reasons that were not the fault of Mr. Roth.
[Id.]{.underline} at 253-54.

The court determined that the Board's refusal of AFIT sponsorship for
Mr. Roth's graduate studies constituted a failure to fulfill its duty to
take steps to grant thorough and fitting relief. [Id.]{.underline} at
250, 251 (citing [Caddington v. United States]{.underline}, 147 Ct. Cl.
629, 634 (1959)). The court thus ordered the Board to add to Mr. Roth's
record an AFIT Training Report for the twenty-nine month period from
January 31, 1989, to June 26, 1991, reflecting marks commensurate with
his academic performance at the Claremont Graduate School, the
institution which he had attended. [Id.]{.underline} at 251.

The court concluded that the Board's decision not to grant Mr. Roth's
request for promotion to lieutenant colonel was arbitrary and
capricious, and "in clear violation of operative statutory and case law
. . . ." [Id.]{.underline} at 248. According to the court, the Board
applied a legal standard with no basis in law when it decided that Mr.
Roth's "[records were not so inaccurate or misleading]{.underline}" that
the selection board was "[precluded from]{.underline} rendering a
reasonable decision concerning his promotability in comparison to his
peers." [Id.]{.underline} (emphases added by the court). The court
recognized, however, that the ultimate decision to promote Mr. Roth lay
solely with the military. [Id.]{.underline} at 249. It therefore did not
order the Board to promote him but rather ordered the Board to submit
his corrected record to SSBs for the 1993 and 1994 selection boards.
[Id.]{.underline} at 255.

Finally, the Court of Federal Claims voided Mr. Roth's 1993 and 1994
nonselections for promotion to lieutenant colonel and ordered that he be
reinstated at the rank of major retroactive to July 1, 1995, with back
pay and benefits. [Id.]{.underline} The government appeals the Court of
Federal Claims' decision. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).

ANALYSIS

I.

The Court of Federal Claims reviews a Board decision to determine if it
is arbitrary, capricious, contrary to law, or unsupported by substantial
evidence. [Heisig v. United States]{.underline}, 719 F.2d 1153, 1156
(Fed. Cir. 1983). In this case, the court granted summary judgment on
the administrative record based on the absence of genuine issues of
material fact. Fed. Cl. R. 56(c), 56.1; [Anderson v. Liberty Lobby,
Inc.]{.underline}, 477 U.S. 242, 247-48 (1986).

We review legal determinations of the Court of Federal Claims, such as a
judgment on the administrative record, [de]{.underline}
[novo]{.underline}. [Heisig]{.underline}, 719 F.2d at 1158. We therefore
apply the same standard of review: we will not disturb the Board's
decision unless we find it to be arbitrary, capricious, contrary to law,
or unsupported by substantial evidence. [See]{.underline} [Haselrig v.
United States]{.underline}, 333 F.3d 1354, 1355 (Fed. Cir. 2003). As the
Court of Federal Claims recognized, the pertinent facts in this case are
not in dispute. Accordingly, we need only decide whether the court erred
as a matter of law in the several rulings that the government challenges
on appeal. We begin with the legal framework for the issues raised by
the government.

II\.

When a military officer is involuntarily separated from active duty, or
mandatorily retired, for twice failing to be selected for promotion, he
may apply for relief, pursuant to 10 U.S.C. § 1552(a), to the
appropriate board for the correction of military records. The correction
board is a civilian board, through which the Secretary of a military
department "may correct any military record . . . when the Secretary
considers it necessary to correct an error or remove an injustice." 10
U.S.C. § 1552(a)(1) (2000). The Secretary is obligated not only to
properly determine the nature of any error or injustice, but also to
take "such corrective action as will appropriately and fully erase such
error or compensate such injustice." [Caddington]{.underline}, 147 Ct.
Cl. at 632.

In carrying out its function, the correction board must determine
"whether the applicant has demonstrated the existence of a material
error or injustice that can be remedied effectively through correction
of the applicant's military record and, if so, what corrections are
needed to provide full and effective relief." 32 C.F.R. § 865.4(l)(4)
(1999). Indeed, "when a correction board fails to correct an injustice
clearly presented in the record before it, it is acting in violation of
its mandate." [Yee v. United States]{.underline}, 512 F.2d 1383, 1387
(Ct. Cl. 1975). Our predecessor court elaborated upon this obligation of
the Board: "\[T\]he Secretary and his boards have an abiding moral
sanction to determine, insofar as possible, the true nature of an
alleged injustice and to take steps to grant thorough and fitting
relief." [Caddington]{.underline}, 147 Ct. Cl. at 634.

Turning to the matter of promotion, the fundamental rule is that
documents that are sent to a selection board must be "substantially
complete, and must fairly portray the officer's record." [Weiss v.
United States]{.underline}, 408 F.2d 416, 419 (Ct. Cl. 1969). If an
officer's record contains prejudicial information, or lacks pertinent
documents that may have mitigated the adverse impact of the prejudicial
information, the record is not complete, and the law requires that
another selection board be presented with a substantially complete and
fair record. [Porter v. United States]{.underline}, 163 F.3d 1304,
1311-12 (Fed. Cir. 1998) (citing [Weiss]{.underline}, 408 F.2d at 419;
[Sanders v. United States]{.underline}, 594 F.2d 804, 814 (Ct. Cl.
1979)).

We explained in [Porter]{.underline} that section 1552 does not limit
the kind of military record subject to correction by a correction board;
hence, a correction board may entertain any kind of application for
correction. 163 F.3d at 1311. The application may request corrections
ranging from changing the terms of a discharge, or the citation of
awards received, to amending records that include OERs, passover
decisions by selection boards or SSBs, and discharge orders.
[Id.]{.underline}

Before a correction board, an officer has the burden of presenting
"sufficient evidence of probable material error or injustice." 32 C.F.R.
§ 865.4(a). Faced with an application for the correction of an officer's
records, a correction board has multiple options. First, it may deny the
application, at which point, in all cases but one, the board acts for
the Secretary and its decision is final.[^5] [Id.]{.underline}
§ 865.4(p)(1).

The correction board also may grant any application in whole or in part,
and if the relief was "recommended by the official preparing the
advisory opinion, was unanimously agreed to by the panel, and does not
involve an appointment or promotion requiring confirmation by the
Senate,"[^6] the board's decision is final. [Id.]{.underline}
§ 865.4(p)(2). If the board's decision to grant an application in whole
or in part is not final pursuant to section 865.4(p)(2), it forwards the
record of the proceedings to the Secretary for a final decision.
[Id.]{.underline} § 865.4(q).

Should a correction board decide to grant corrections to an officer's
record, it may choose to convene an SSB under the provisions of 10
U.S.C. § 628(b) (2000), which was enacted as part of the Defense Officer
Personnel Management Act ("DOPMA").[^7] Section 628(b) provides that in
the case of an officer who was previously considered for promotion but
was not selected, "the Secretary . . . [may convene]{.underline} a
special selection board \[SSB\]" if the Secretary determines either that

> \(A\) the action of the board which considered the officer was
> contrary to law or involved material error of fact or material
> administrative error; or
>
> \(B\) the board did not have before it for its consideration material
> information.

[Id.]{.underline} § 628(b)(1) (emphasis added). By the language of the
statute, if a correction board corrects an officer's record, but does
not find (i) that the original selection board decision was contrary to
law or involved material error of fact or material administrative error,
or (ii) that the original selection board lacked material information
for its consideration, it may alternately choose not to convene an SSB,
despite any corrections it ordered in the officer's record.
[See]{.underline} [Porter]{.underline}, 163 F.3d at 1315 ("The Air Force
regulations for SSBs have thus consistently stated that access to an SSB
occurs when the Secretary, or his or her designee, determines that a
'material error of fact' was 'involved' in the previous passover
decisions."); [id.]{.underline} at 1324 ("Under section 628, a
passed-over officer . . . has access to an SSB on a showing of 'material
error.'").

In the alternative, when a correction board determines that the initial
selection board's decision did contain "material error of fact or
material administrative error," the proper course is for the board to
refer the corrected record to an SSB for a determination whether the
officer would have been promoted had the initial selection board had the
corrected records before it. [Id.]{.underline} at 1324; [Richey v.
United States]{.underline}, 322 F.3d 1317, 1324 (Fed. Cir. 2003).

The SSB will compare the officer's corrected record to a sampling of the
records of those officers of the same competitive category who were
recommended for promotion, and those officers who were not recommended
for promotion, by the board that originally considered the officer. 10
U.S.C. § 628(b)(2). If the SSB decides the officer would have been
promoted based upon his or her corrected records, the Secretary is bound
by that decision. [Porter]{.underline}, 163 F.3d at 1322. The
consequences of this selection then relate back to the date of the
selection board that passed over the officer, for which the SSB is the
substitute: the officer receives the same position on the active duty
list with the requisite pay and benefits that accrue to the rank to
which he or she is promoted as a result of the SSB decision. 10 U.S.C. §
628(d)(2); [Porter]{.underline}, 163 F.3d at 1315.

If, on the other hand, the SSB decides that the officer would not have
been promoted, the officer incurs no additional failure of selection for
promotion, 10 U.S.C. § 628(b)(3), and the officer may then bring to the
correction board any complaints he or she may have concerning the
process and decision of the SSB. [Porter]{.underline}, 163 F.3d at 1322.
By first sending the officer to an SSB to determine whether he or she
would have been selected for promotion, rather than exercising its own
discretion to select the officer, the correction board "is authorized
and obligated to review the actions of the SSB on application from the
officer . . . ." [Id.]{.underline} at 1323. As we explained in
[Porter]{.underline}, "the \[board\] must be able to act in the event
material errors of a procedural, factual, or compositional nature infect
the SSB deliberations." [Id.]{.underline} The ultimate responsibility
lies with the board to assure that an SSB produces "a reasonable
determination of the officer's promotion prospects," which is the focus
of the board's inquiry under section 1552 upon an appeal by the officer
of the SSB's decision. [Id.]{.underline} at 1325. Thus, the correction
board is obligated to recommend to the Secretary voidance of an SSB
decision when it concludes that the process of presenting the corrected
records to the SSB did not yield a "reasonable determination that the
officer would have been denied promotion initially even with an
untainted record . . . ." [Id.]{.underline}

An officer may obtain review of an adverse decision of a correction
board in the Court of Federal Claims, provided that the court has
jurisdiction in the case pursuant to the Tucker Act, 28 U.S.C. §
1491(a)(1).[^8] The Tucker Act authorizes certain actions for monetary
relief against the United States to be brought in the Court of Federal
Claims. For actions pursuant to contracts with the United States,
actions to recover illegal exactions of money by the United States, and
actions brought pursuant to money-mandating statutes, regulations,
executive orders, or constitutional provisions, the Tucker Act waives
the sovereign immunity of the United States. 28 U.S.C. § 1491(a)(1)
(2000); [United States v. Mitchell]{.underline}, 463 U.S. 206, 212-16
(1983); [United States v. Testan]{.underline}, 424 U.S. 392, 400 (1976).
Because the Tucker Act itself does not provide a substantive cause of
action, however, a plaintiff must find elsewhere a money-mandating
source upon which to base a suit. [Mitchell]{.underline}, 463 U.S. at
216-19; [Testan]{.underline}, 424 U.S. at 398; [Collins v. United
States]{.underline}, 67 F.3d 284, 286 (Fed. Cir. 1995).

In the context of involuntary separation cases, such as this one, the
applicable money-mandating source is the Military Pay Act, 37 U.S.C. §
204 (2000). [See, e.g.]{.underline}, [Martinez v. United
States]{.underline}, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc);
[Adkins v. United States]{.underline}, 68 F.3d 1317, 1321 (Fed. Cir.
1995); [Sanders]{.underline}, 594 F.2d at 810. In order to bring such a
case in the Court of Federal Claims, the plaintiff must allege that
because the separation was unlawful, he or she is entitled to the pay
that would have been received but for the unlawful action.
[See]{.underline} [Martinez]{.underline}, 333 F.3d at 1303. Moreover,
although the Court of Federal Claims does not possess general equity
jurisdiction, under the Tucker Act, in actions for monetary relief,
"\[t\]o provide an entire remedy and to complete the relief afforded by
the judgment, the court may, as an incident of and collateral to any
such judgment, issue orders directing restoration to office or position,
placement in appropriate duty or retirement status, and correction of
applicable records . . . ." 28 U.S.C. § 1491(a)(2). Finally, an
involuntarily discharged or mandatorily retired officer must bring his
or her Tucker Act action in the Court of Federal Claims within six years
of the date of discharge or retirement. [See]{.underline}
[id.]{.underline} § 2501.

III\.

A. [Justiciability]{.underline}

The government challenges neither the Court of Federal Claims' exercise
of jurisdiction over Mr. Roth's complaint nor the court's order to add
to his record an AF Form 77 explaining that the absence of an OER for
the period March 8, 1988, to January 31, 1989, was not his fault. The
government does, however, challenge the justiciability of the remaining
corrections ordered by the court.[^9] According to the government, those
corrections present nonjusticiable issues of military discretion because
there are no statutory or regulatory guidelines against which the
decisions of the military may be measured.

Even if a court possesses jurisdiction to hear a claim, when that claim
presents a nonjusticiable controversy, the court may nevertheless be
prevented from asserting its jurisdiction. We have explained that a
controversy is justiciable "only if it is 'one which the courts can
finally and effectively decide, under tests and standards which they can
soundly administer within their special field of competence.'" [Voge v.
United States]{.underline}, 844 F.2d 776, 780 (Fed. Cir. 1988) (quoting
[Greene v. McElroy]{.underline}, 254 F.2d 944, 953 (D.C. Cir. 1958)). In
the military arena, because of the admonition against court interference
with military matters, [see]{.underline} [Orloff v.
Willoughby]{.underline}, 345 U.S. 83, 94 (1953), justiciability is an
especially appropriate inquiry. [Adkins]{.underline}, 68 F.3d at 1322
(quoting [Murphy v. United States]{.underline}, 993 F.2d 871, 872 (Fed.
Cir. 1993)). As it is an issue of law, this court decides
[de]{.underline} [novo]{.underline} whether a claim is justiciable.
[Id.]{.underline}

We have held that the merits of a service Secretary's decision regarding
military affairs are beyond the ken of judicial review.
[Id.]{.underline} Not all claims arising from military decisions,
however, present nonjusticiable controversies: "This court has
consistently recognized that, although the [merits]{.underline} of a
decision committed wholly to the discretion of the military are not
subject to judicial review, a challenge to the particular
[procedure]{.underline} followed in rendering a military decision may
present a justiciable controversy." [Id.]{.underline} (emphasis in
original). We spelled out in [Murphy]{.underline} that a court may in
fact decide whether the military followed its own procedures, which by
their nature limit the military's discretion. 993 F.2d at 873.
Accordingly, in cases in which procedural violations are alleged, "the
test or standards against which this court measures the military's
conduct are inherent: they are the applicable statutes and regulations."
[Adkins]{.underline}, 68 F.3d at 1323. To engage in such an inquiry does
not intrude upon any discretion reserved exclusively for the military;
rather, the inquiry merely ascertains whether applicable military
procedures, statutory or regulatory, were followed. We have therefore
determined that questions of procedural compliance are justiciable.

The government argues that if a regulatory or statutory standard does
not govern a particular military action, the action is not justiciable.
In this case, according to the government, all but one of the
corrections ordered by the Court of Federal Claims[^10] were based not
upon the Air Force's failure to comply with regulation, but upon
"facially discretionary acts" by Air Force officers and the Board. The
government thus contends that the Court of Federal Claims exceeded its
authority by intruding into the military province. For example, the
government asserts that the trial court cited no regulatory guidance
governing the level at which Mr. Roth's OERs should have been indorsed.
The issue was therefore nonjusticiable, and the trial court was without
the authority to order the indorsement levels raised on the March 1984
and January and June 1985 OERs.

Mr. Roth responds that the errors in his record arose from improperly
executed military decisions, and that the mere presence of discretion in
a military decision does not render that decision nonjusticiable
[per]{.underline} [se]{.underline}. Mr. Roth explains that, contrary to
the government's contentions, the Court of Federal Claims was not being
asked to make substantive decisions for the military. Mr. Roth asks us
to recognize that the actions of the military in his case were
improperly undertaken when measured against the regulations that
governed them.

Pursuant to AFR 36-89, paragraph 1 (Apr. 1992), an officer is entitled
to "fair and equitable" promotion consideration, and Mr. Roth contends
that this court has recognized the justiciability of this standard in
its assessment of the propriety of records with which officers compete
for promotion. [See]{.underline} [Sargisson v. United
States]{.underline}, 913 F.2d 918, 922 (Fed. Cir. 1990) (explaining that
the Court of Claims reviewed the actions of selection boards for
compliance with the requirement of 10 U.S.C. § 8442(c) (1976) (repealed
1980) that the record presented to a selection board portray an
officer's career in a "fair and equitable" manner). Mr. Roth asserts
that the events leading to his allegedly unlawful discharge began with
the improper downgrading of his March 1984 OER. He argues that the
failure of the Board to correct his records prevented his receiving
"fair and equitable" consideration. His claim, he argues, is therefore
justiciable.

With two exceptions, we think that the record corrections ordered by the
Court of Federal Claims do not run afoul of the rules of justiciability
as they pertain to military decisions. We agree with the government that
in order for an officer's claim to the correction of his record to be
justiciable, there must exist standards by which a court can review the
military decisions at issue. [See]{.underline} [Adkins]{.underline}, 68
F.3d at 1323. What we think the government fails to recognize, however,
is that a normally nonjusticiable decision is not insulated from
judicial review if it flows directly from the breach of a statute or
regulation. Once a breach has been established, the obligation falls to
the Board, or if necessary to the court, to "take steps to grant
thorough and fitting relief . . . ." [Caddington]{.underline}, 147 Ct.
Cl. at 634.

For example, the government is correct that there is no explicit
regulation governing the level at which an officer's OER should be
indorsed. However, as we discuss in Part III.C below, the lowered
indorsement levels on Mr. Roth's March 1984 and January and June 1985
OERs occurred as a direct result of the violation of AFR 36-10 on his
March 1984 OER. Therefore, the decision to lower the indorsement levels
on three of Mr. Roth's OERs is not insulated from judicial review merely
because no regulation explicitly sets forth guidelines for the
indorsement levels on officer OERs. The fact that the decisions to lower
the indorsements flowed directly from the violation of a related
regulation provides sufficient basis for the court to undertake judicial
review.

B. [Downgraded March 1984 OER]{.underline}

Paragraph 3-14 of AFR 36-10 states that certain material is
inappropriate and "must not be considered in the evaluation process or
included in comments in evaluation reports or indorsements to them."
Among the matters prohibited from consideration in the preparation of an
OER are "\[c\]harges preferred, investigations, reviews by boards of
evaluation or inquiry . . . that are not complete as of the closeout
date . . . ." AFR 36-10, ¶ 3-14(a). Mr. Roth presented unrebutted
evidence to the Board that the rating under Item 9 of the Professional
Qualities category on his March 1984 OER was lowered as a result of the
AFOSI investigation, which was not completed until July 6, 1984, despite
the fact that he was ultimately absolved of all allegations against him.

In his initial appeal to the Board in 1989, Mr. Roth presented
statements signed by all three of the raters on his March 1984 OER that
their decision to downgrade Item 9 was the result of the AFOSI
investigation, the AFOSI interviews of Mr. Roth's coworkers, and the
existence of allegations and rumors concerning his behavior. Colonels
William Coward, Dieter Satz, and David Sawyer each averred that Mr.
Roth's "evaluation was written during the heat of this controversy, and
\[they\] based \[their\] evaluation upon the best information \[they\]
had available at the time." (Board R. 15, 17, 20)

During the proceedings in Mr. Roth's 1989 appeal to the Board, each of
these three raters was also forwarded the AFMPC's recommendation, which
was to deny Mr. Roth the correction of his March 1984 OER. In response,
Colonel Satz stated in a letter to the Board that during a phone call
from "higher headquarters" that addressed both the investigation and the
March 1984 OER, "\[t\]he option provided to Colonel Coward and I at that
time was to downgrade at least one block in Captain Roth's OER or
else . . . . In the absence of the above, Captain Roth would not have
been downgraded in Block 9, Professional Qualities." (Board R. 28)
Colonel Sawyer likewise stated, "It was precisely because the
investigation was ongoing and serious accusations were being made
against Captain Roth that I was directed to downgrade block 9. I had
originally marked the block 'well above standards,' but was directed by
Colonel Satz and Colonel Coward to reaccomplish the OER because we could
not ignore the accusations." (Board R. 33) Colonel Coward confirmed this
sequence of events:

> The Ninth Air Force Commander and I had a discussion about the
> allegations . . . . The Ninth Air Commander and I agreed that the OER
> on Captain Roth should be rewritten and block nine should reflect the
> apparent off duty indiscretions of Captain Roth. The rating and
> reviewing officials agreed with this decision, and the OER was
> rewritten . . . . I know that the decisions concerning Captain Roth
> were honestly but poorly made and based solely on unsubstantiated
> allegations.

(Board R. 35) It is clear that AFR 36-10, paragraph 3-14(a) was violated
when Item 9 of the Professional Qualities category was downgraded to
"Meets Standard" on Mr. Roth's March 1984 OER.

As noted above, the Board did grant Mr. Roth relief for this violation
in 1989. [In the Matter of Roth]{.underline} (Oct. 31, 1989). The Board
recommended that Item 9 on Mr. Roth's March 1984 OER be corrected to
reflect a "Well Above Standard" rating, that certain negative comments
be deleted, and that the comment "Behavior and bearing were exemplary"
be inserted. [Id.]{.underline} at 3. The Board further recommended that
Mr. Roth be considered for promotion to major by an SSB for each
selection board in which the corrections it had ordered were not a
matter of record. [Id.]{.underline}

The Court of Federal Claims determined that the Board failed to afford
Mr. Roth complete relief, however. Thus, it upgraded the indorsement
levels on three of his OERs; ordered the removal of the notation
"Corrected Copy" from his March 1984 OER; ordered that recommendations
for approval of an end-of-tour decoration for his service at Shaw AFB be
forwarded for consideration; and ordered that an end-of-tour decoration
be awarded for his service at Ramstein AFB. The court also ordered the
insertion of an AF Form 77 in Mr. Roth's record explaining the lack of
an OER for the eleven months prior to his separation from the Air Force
in 1989, and the insertion of an AF Form 475, Training Report, to
reflect AFIT sponsorship of his attendance at a graduate school program
during the period that he was involuntarily separated. In addition, the
court voided Mr. Roth's 1993 and 1994 nonselections for promotion to
lieutenant colonel. We address these record corrections in turn.

C. [Indorsement Levels on March 1984 and January and June 1985
OERs]{.underline}

Mr. Roth's June 1983 OER had been indorsed by the Vice Commander of
Ninth Air Force, Brigadier General Robert McCann. The indorsement on his
March 1984 OER, however, dropped to that of Colonel Coward, serving as
Ninth Air Force Inspector General. Not only then was Mr. Roth's March
1984 OER substantively downgraded, but also Colonel Coward admitted that
"\[t\]he false allegations against \[Mr. Roth\] preempted \[his\]
intentions" of requesting the same level of indorsement in 1984 that Mr.
Roth had received in 1983. (Board R. 140) This reflects a violation of
AFR 36-10, paragraph 3-14(a), for it demonstrates that the investigation
against Mr. Roth, which was not complete as of the closing date of the
March 1984 OER, was considered in connection with the level of
indorsement on Mr. Roth's March 1984 OER.

In turn, the downgrade in the indorsement level in March 1984
precipitated subsequent downgrades in the indorsement levels on Mr.
Roth's January and June 1985 OERs. On both, Mr. Roth was indorsed only
by a colonel, rather than Brigadier General McCann. Lieutenant Colonel
William Atkinson, the additional rater on Mr. Roth's January 1985 OER,
admitted that

> \[b\]ecause of the previously documented substandard performance, as
> reflected in that now-corrected OER of 21 June 1983 through 27 March
> 1984, Major Roth's following OER, from 28 Mar 84 through 28 Jan 85,
> for which I was the additional rater, could also not be sent forward
> for the 9th Air Force Vice Commander's indorsement . . . . This OER
> for duty with 9AF/IG would most certainly have been forwarded for the
> Vice Commander's indorsement had it not been for the previous incident
> for which Major Roth has since been absolved of any wrongdoing, and
> the substandard OER of 21 June 1983 through 27 March 1984, which has
> now been corrected.

(Board R. 138)

Similarly, both the rater and additional rater on Major Roth's June 1985
OER, Lieutenant Colonel Robert Heller and Brigadier General John
Garrison, respectively, explained that the January and June 1985 OERs
"would most certainly have been forwarded for the Vice Commander's
indorsement had it not been for the previous incident for which Major
Roth has since been absolved of any wrongdoing, and for the substandard
OER of 21 June 1983 through 27 March 1984, which has now been
corrected." (Board R. 136, 139) In addition, the Vice Commander himself,
Brigadier General McCann, confirmed that "allegations of misconduct by
Capt. Roth, subsequently found to be without basis, drove the decisions
by rating and additional rating officers not to forward Capt. Roth's
OERs to me for indorsement." (Board R. 145) General McCann also stated
that he would have indorsed all three OERs had they been forwarded to
him, and he requested that the Board correct any OER shown not to have
been forwarded to him because of the allegations against Mr. Roth to
reflect his indorsement. (Board R. 145)

It is therefore clear that the lowered indorsements on Mr. Roth's March
1984 and January and June 1985 OERs resulted directly from the initial
violation of AFR 36-10, paragraph 3-14(a), the downgrading of Item 9 on
his March 1984 OER, and constituted independent violations of that
regulation as well. Notably, the AFMPC agreed in its advisory opinion to
the Board and conceded that if it chose, the Board could order the OERs
to be reaccomplished. Memorandum from the AFMPC to the Board at 4.
Because of these violations of AFR 36-10, the Court of Federal Claims
determined the decision to lower the indorsement levels on all three
OERs to be a justiciable military decision. We agree, and we affirm the
decision to order that Mr. Roth's March 1984 and January and June 1985
OERs be reaccomplished to reflect the indorsement of then-Vice Commander
Brigadier General McCann.

D. ["Corrected Copy" Notation on March 1984 OER]{.underline}

In 1989, the Board corrected Mr. Roth's March 1984 OER by upgrading
Section III, Item 9, to "Well Above Standard." [In the Matter of
Roth]{.underline}, slip op. at 3 (Oct. 31, 1989). In accordance with AFR
31-11, table 4, note 7 (Mar. 15, 1990), the OER was also marked with the
notation "Corrected Copy."[^11] The necessity for this notation arose as
a direct result of the improper downgrading of Mr. Roth's March 1984 OER
in violation of AFR 36-10, paragraph 3-14(a). Had the March 1984 OER
been properly prepared when it was first issued, it would not have been
necessary to correct it later. We therefore agree with the Court of
Federal Claims that this issue too is a justiciable military decision.

Mr. Roth argued before the Board that the appearance of "Corrected Copy"
on his OER was prejudicial to him in his consideration by subsequent
selection boards. We explained in [Sanders]{.underline} that because
regulations prescribe that OERs are to be objective and prepared in a
certain way, "\[i\]f a particular officer's OER has not been so prepared
and that defect could have resulted in his nonselection for promotion,
this is legal and factual error and an injustice to the officer as
well." 594 F.2d at 814. The Court of Federal Claims concluded, based on
the text of note 7, that the Board has discretion respecting the
language that may be used upon correcting an OER (as evidenced by the
caveat "Unless otherwise directed by the Board"). [Roth]{.underline}, 56
Fed. Cl. at 253. It therefore ordered the Board to apply discretionary
language, instead of "Corrected Copy," on Mr. Roth's March 1984 OER.

We do not agree with the Court of Federal Claims on this point. The
reason is that we are unable to discern any error in the addition of the
notation "Corrected Copy" on the March 1984 OER. Not only was the
notation placed on the OER pursuant to regulation, but before the Board
Mr. Roth offered no support for his assertion that the notation was
prejudicial. Finally, Mr. Roth has not even argued the point on appeal.
Accordingly, we reverse the court's decision insofar as it directed
removal of the "Corrected Copy" notation.

E. [Shaw AFB Decoration]{.underline}

As noted, from June 1982 to the summer of 1985, Mr. Roth was assigned to
Shaw AFB. Upon his transfer to Ramstein AFB during the summer of 1985,
he did not receive an end-of-tour decoration commemorating his three
years of service at Shaw AFB. Although the Air Force's failure to award
this decoration did not itself violate any Air Force regulation or
statute, before the Board Mr. Roth presented unrebutted evidence that it
was the direct result of his improperly downgraded March 1984 OER. In
their statements to the Board, General Garrison, Lieutenant Colonel
Atkinson, and Lieutenant Colonel Heller, each within Mr. Roth's former
chain of command, confirmed that his performance "ordinarily would have
warranted an end-of-tour medal when he \[transferred\] from Shaw AFB had
it not been for the now corrected \[March 1984\] OER . . . ." In light
of this evidence that the absence of the decoration flowed directly from
the original violation of AFR 36-10, paragraph 3-14(a), we agree that
the decision not to award Mr. Roth an end-of-tour decoration for his
service at Shaw AFB presents a justiciable military decision.[^12]

The AFMPC did not recommend this correction to Mr. Roth's record
because, unlike the statements he provided regarding the Ramstein AFB
decoration, discussed in the next section, Mr. Roth did not provide a
similar statement from the approving authority that the Shaw AFB
decoration would have been approved had the recommendations for it gone
forward. Memorandum from the AFMPC to the Board, at 4. The Board, in
turn, "found no evidence that the members of \[Mr. Roth's\] chain of
command were precluded from recommending him for an end of tour
decoration when he departed Shaw AFB . . . the applicant has not
provided reaccomplished reports or a recommendation for the requested
award prepared by the appropriate officials . . . ." Consequently, the
Board did not award Mr. Roth the decoration. [In the Matter of
Roth]{.underline}, slip op. at 8-9 (June 2, 1999). The Court of Federal
Claims, however, explained that Mr. Roth had provided evidence from his
former chain of command that he would have been recommended for the
award. The court therefore directed the Board to order the
recommendations for the award to be sent forward. We agree that the
recommendations to award Mr. Roth an end-of-tour decoration for his
service at Shaw AFB should be forwarded to the proper authority for a
determination whether the award should be issued.

F. [Ramstein AFB Decoration]{.underline}

Mr. Roth also did not receive an end-of-tour decoration upon his
separation from Ramstein AFB. Major Roth's commander at the time of his
separation, Lieutenant Colonel Walter Harris, stated that had an OER
been prepared for Mr. Roth, it would have reflected "honorable and
competent success oriented service." (Board R. 133) Moreover, had Mr.
Roth's departure been due to "causes other than separation," Lieutenant
Colonel Harris would have considered him for an end-of-tour medal
"commensurate with \[his\] evaluation of \[Mr. Roth's\] accomplishments
. . . ." (Board R. 133) General O'Lear, the approval authority for the
medal at the time, explained to the Board that he would have approved a
recommendation for the medal had it been submitted by Mr. Roth's
commanding officers, and that he supported a correction of Mr. Roth's
record to that effect. (Board R. 135) These views were shared by Colonel
Richard L'Heureux, Director, Plans and Systems for USAFE/IN at the time
of Mr. Roth's separation and a member of his immediate supervisory
chain. (Board R. 134)

The lack of an end-of-tour medal from Ramstein AFB flowed directly from
the violation committed on Mr. Roth's March 1984 OER, which infected his
January and June 1985 OERs. The evidence establishes that the downgraded
indorsement levels resulted in his separation, which in turn resulted in
his not receiving an end-of-tour decoration for his service at Ramstein
AFB. The Court of Federal Claims properly found this military decision
to be justiciable in light of the statements by members of Mr. Roth's
former chain of command.

The AFMPC concluded, based on these statements from members of Mr.
Roth's chain of command, that the Board could order the decoration to be
awarded. Memorandum from the AFMPC to the Board at 5. The court directed
the Board to award Mr. Roth the medal. We agree, and we affirm the trial
court's order that Mr. Roth's record be corrected to reflect the award
of an end-of-tour decoration upon his departure from Ramstein AFB.

G. [Lack of an OER for the Eleven Months prior to January 31,
1989]{.underline}

The absence of an OER for the eleven-month period from March 8, 1988, to
January 31, 1989, prior to Mr. Roth's involuntary discharge, was the
direct result of the initial violation of AFR 36-10, paragraph 3-14(a),
for Mr. Roth would not have been separated had his March 1984 OER not
been improperly downgraded. In addition, the failure to provide Mr. Roth
an OER for this period constituted a violation of AFR 36-10, table 3-1,
note 4 (Aug. 1, 1988). That provision mandates that a separated officer
receive an OER unless his separation is either voluntary or for
misconduct under AFR 36-2, neither of which applied to Mr. Roth. In view
of AFR 36-10, this military decision is justiciable.

The AFMPC admitted this violation, and offered that the Board could
order a form to be placed in Mr. Roth's record indicating that no rating
was available for the eleven-month period through no fault of Mr.
Roth's. Memorandum from the AFMPC to the Board at 4. We agree, and we
affirm the Court of Federal Claims' decision to order the placement of
an AF Form 77 in Mr. Roth's record with language to the effect that "a
report for this period is not available for administrative reasons which
were not the fault of \[Mr. Roth\]."

H. [AFIT Sponsorship]{.underline}

After his separation on January 31, 1989, Mr. Roth did not return to
active duty until June 27, 1991, resulting in an approximately
twenty-nine-month gap in his record. Mr. Roth sought to account for this
gap with an AF Form 475 Training Report indicating that the graduate
studies he had been pursuing while he was separated were sponsored by
AFIT. The AFMPC recommended against the sponsorship, explaining that the
gaps in Mr. Roth's record were accounted for by forms prescribed by,
[inter]{.underline} [alia]{.underline}, Air Force Instruction ("AFI")
36-2406, AFR 31-3, and AFR 31-11.[^13] Memorandum from the AFMPC to the
Board at 6. Because Air Force regulations do prescribe how the Air Force
accounts for gaps in an officer's record, we find this decision to
account for Mr. Roth's absence to be justiciable.

In 1991, the Board declined Mr. Roth's request for AFIT sponsorship
because the Air Staff indicated there was no education quota in Mr.
Roth's degree area during fiscal year 1991. [In the Matter of
Roth]{.underline}, slip op. at 2-3 (Jan. 30, 1991). The Board instead
recommended that Mr. Roth's record be corrected to reflect that he was
ordered Permanent Change of Station (PCS) to his home . . . ."
[Id.]{.underline} at 3. An AF Form 77 was placed in Mr. Roth's record
stating, "No report available for the period 8 Mar 88 through 26 Jun 91.
Member restored to active duty by Direction of the Secretary of the Air
Force under AFR 31-3, Air Force Board for the Correction of Military
Records." In 1999 the Board again declined to award Mr. Roth AFIT
sponsorship for this gap because he was not actually in an AFIT training
program during those twenty-nine months; therefore, to insert an AFIT
Training Report "would create an erroneous and misleading record." [In
the Matter of Roth]{.underline}, slip op. at 8 (June 2, 1999).

Mr. Roth explains that had he not been discharged as a result of the
improperly prepared March 1984 OER, he would have received evaluations
during these twenty-nine months, and that the Air Force's failure to
account for this gap was prejudicial to his record. The Court of Federal
Claims thus ordered the Board to issue the AFIT Training Report as part
of its duty to Mr. Roth to take steps "to grant thorough and fitting
relief." [Roth]{.underline}, 56 Fed. Cl. at 251 (citing
[Caddington]{.underline}, 147 Ct. Cl. at 634). Because the court did not
identify any statute or regulation that had been violated, however, we
disagree with its decision. We also disagree with the Board's decision
to permit Mr. Roth's record to reflect his "home" as his place of active
duty, however. This too fails to adequately remedy the gap in Mr. Roth's
record, which directly resulted from the initial violation of AFR 36-10,
paragraph 3-14(a). We thus modify the ruling of the Court of Federal
Claims on this point by ordering that the AF Form 77 in Mr. Roth's
record regarding his twenty-nine month absence from the service be
corrected to properly explain that both the gap and the resultant lack
of OERs for this period occurred through no fault on his part. We leave
the exact wording of the correction to the discretion of the Board, with
the caveat that the language must be nonprejudicial to Mr. Roth's future
prospects for promotion selection.

We think this relief, coupled with the award of an AF Form 77 that
explains in a nonprejudicial manner the lack of an OER for the eleven
months from March 8, 1988, to January 31, 1989, will adequately
substitute for the current AF Form 77 in Mr. Roth's record that reads,
"No report available for the period 8 Mar 88 through 26 Jun 1991. Member
restored to active duty . . . ." We agree with Mr. Roth that the
language on this form, quoted above, erroneously implies that Mr. Roth
was not on active duty for the entire forty months, when in fact, he
served on active duty from March 8, 1988, to January 31, 1989, before he
was separated---he simply failed to receive the OER he had earned for
those eleven months. This error will be remedied by the separate AF
Forms 77 we have ordered to be issued: one for the eleven months prior
to his 1989 separation for which he should have received an OER by
regulation, and one explaining the twenty-nine month gap in his service
in a manner that is not prejudicial to him.

I. [Summary]{.underline}

For the reasons set forth above, we affirm all record corrections
ordered by the Court of Federal Claims, with the exception of the
removal of the notation "Corrected Copy" from the March 1984 OER and the
issuance to Mr. Roth of an AFIT Training Report to account for his
twenty-nine month gap in service. We reverse the court's decision
insofar as it directed the removal of the "Corrected Copy" notation from
the March 1984 OER. We modify the court's decision insofar as it
directed issuance of an AFIT Training Report. Instead of an AFIT
Training Report, we direct that an AF Form 77 be placed in Mr. Roth's
record explaining his twenty-nine month absence from the service in
language that is nonprejudicial to his prospects for promotion by future
selection boards.

IV\.

As noted, after ordering corrections to Mr. Roth's record, the Court of
Federal Claims directed the Board to convene SSBs to determine whether,
if Mr. Roth had gone before the 1993 and 1994 lieutenant colonel
selection boards with his record in its corrected form, he would have
been promoted. In the meantime, the court ordered the 1993 and 1994
nonselections for promotion to lieutenant colonel voided and Mr. Roth
reinstated to active duty at the rank of major, retroactive to July 1,
1995, with back pay and benefits.

The government argues that the Court of Federal Claims erred in the
relief it granted Mr. Roth. It contends that, assuming corrections to
Mr. Roth's record were in order, the court simply should have referred
his corrected record to SSBs for a determination as to whether, if he
had gone before the 1993 and 1994 lieutenant colonel selection boards
with his record as corrected, he would have been promoted. The
government urges that the court's action voiding the 1993 and 1994
nonselections and ordering Mr. Roth reinstated to active duty was
improper and contrary to our decisions in [Porter]{.underline} and
[Richey]{.underline}.

For his part, Mr. Roth argues that the Court of Federal Claims did not
err in voiding his nonselections and in reinstating him to active duty
pending SSB action. He asserts that, under the Tucker Act, the Court of
Federal Claims may award equitable relief only "incident of and
collateral to" a money judgment. 28 U.S.C. § 1491(a)(2). If no money
judgment is awarded, Mr. Roth reasons, no equitable relief is available.
According to Mr. Roth, if the court did not void his 1993 and 1994
nonselections, reinstate him, and award him back pay, it could not
direct any corrections to his record. Thus, Mr. Roth asserts that what
the court did "complied perfectly with the strictures of Tucker Act
jurisdiction." Mr. Roth argues that [Porter]{.underline} and
[Richey]{.underline} are inapposite because they address the authority
of correction boards and the SSB process, rather than the parameters of
Tucker Act jurisdiction, which is what he says is at issue.

We see no error in the decision of the Court of Federal Claims to remand
Mr. Roth's case to the Board with the instruction that the Board correct
Mr. Roth's record as directed and then convene SSBs for the 1993 and
1994 lieutenant colonel selection boards pursuant to 10 U.S.C. § 628(b).
We recognize that, generally, the proper approach after a correction
board makes record corrections is for the board to decide for itself
whether or not to convene SSBs. [See]{.underline} [Porter]{.underline},
163 F.3d at 1324 ("\[I\]n the post-DOPMA context, the \[Board\] may
exercise its section 1552 authority by following the statutory directive
in section 628(b)(1)(A); that is, convening an SSB . . . ."). Thus, if
the correction board determines that in view of the corrections that
have been made in an officer's record, "the action of the \[original
selection\] board which considered the officer was contrary to law or
involved material error of fact or material administrative error," the
board may convene an SSB. 10 U.S.C. § 628 (b)(1)(A); [see]{.underline}
[Richey]{.underline}, 322 F.3d at 1324; [Porter]{.underline}, 163 F.3d
at 1324.[^14]

In this case, however, we agree with the Court of Federal Claims that
the appropriate course is to remand the case to the Board with the
instruction that the Board correct Mr. Roth's record and then convene
SSBs for the 1993 and 1994 selection boards. In view of the record
corrections that will be made in Mr. Roth's record, we conclude that the
actions of the original selection boards that considered Mr. Roth for
promotion involved, at a minimum, material error of fact, and that it
would be arbitrary and capricious for the Board not to convene SSBs.
[Cf.]{.underline} [Godwin v. United States]{.underline}, 338 F.3d 1374,
1380-81 (Fed. Cir. 2003) (ruling, in part, that the correction board
committed legal error in determining that no error or injustice occurred
in the Coast Guard's failure to provide Mr. Godwin with an OER in
violation of Coast Guard regulations, reversing the dismissal of the
complaint, and remanding the case). Indeed, on appeal the government
does not seem to disagree. It states,

> \[I\]n the case of an error that might have led to a different result
> by the board, the matter should be remanded for consideration by an
> SSB with the records corrected . . . . If errors in Mr. Roth's records
> entitled him to SSBs, the proper action would be to remand his case,
> subject to action by the SSBs, and not to return him to active duty
> before SSB determination of whether he would have been promoted.
>
> Br. Def.-Appellant at 21.

We do agree with the government, however, that the Court of Federal
Claims went too far when it voided Mr. Roth's 1993 and 1994
nonselections for promotion to lieutenant colonel and ordered him
reinstated to active duty at the rank of major, retroactive to July 1,
1995, with back pay and benefits. This issue was squarely addressed in
[Porter]{.underline}, which also involved the Air Force Board for the
Correction of Military Records (referred to in the case as the \"Air
Board\"). One of the two questions presented in [Porter]{.underline} was
"must the Air Board in every instance couple a recommendation to convene
an SSB with voidance of previous passovers?" 163 F.3d at 1306. After an
exhaustive review of pre-DOPMA correction board law and 10 U.S.C § 628,
the [Porter]{.underline} court answered this question in the negative,
stating:

> We . . . conclude and hold as a matter of statutory interpretation
> that nothing in section 628 requires the constructive
> reinstatement---via the purge of at least one of the two passovers
> from the officer's record---of a twice passed over and discharged
> officer in order to present the officer's record to an SSB.

[Id.]{.underline} at 1321. We pointed out in [Porter]{.underline} that
whether or not previous passovers are voided when an SSB is convened is
a matter within the discretion of the correction board: "In appropriate
cases, we may assume that the Air Board will exercise its discretion to
void passovers." [Id.]{.underline} at 1323. In addition, we instructed
that "\[i\]f the Air Board stays action on a request to void passovers
pending action by an SSB, it must subsequently grant or deny the request
to void the initial passover to close out the petition for correction."
[Id.]{.underline} Four years after [Porter]{.underline}, we recognized
in [Richey]{.underline} the discretion that lies with the Board
vis-à-vis the question of whether an officer's previous passovers are
voided pending SSB action when we stated, "\[U\]nder
[Porter]{.underline}, the existence of error in the original promotion
board decision does not entitle the appellant to any relief."
[Richey]{.underline}, 322 F.3d at 1328.[^15]

Based upon [Porter]{.underline} and [Richey]{.underline}, we hold that
the Court of Federal Claims erred when it voided Mr. Roth's two
nonselections for promotion to lieutenant colonel and ordered him
reinstated to active duty.[^16] We therefore reverse that part of the
court's decision.

CONCLUSION

In conclusion, (1) we affirm the following corrections by the Court of
Federal Claims to Mr. Roth's record: (i) upgrading the indorsement
levels on the March 1984 and January and June 1985 OERs; (ii) ordering
the forwarding of recommendations for approval of an end-of-tour
decoration for Mr. Roth's service at Shaw AFB; (iii) ordering that an
end-of-tour decoration be awarded for Mr. Roth's service at Ramstein
AFB; and (iv) adding an AF Form 77 to Mr. Roth's record explaining the
lack of an OER for the eleven months from March 8, 1988, to January 31,
1989. (2) We affirm the court's remand of the case to the Board with the
instruction that SSBs be convened for the 1993 and 1994 lieutenant
colonel selection boards. (3) We modify the court's decision to award an
AFIT Training Report to account for the twenty-nine month gap in Mr.
Roth's military service and order instead that an AF Form 77 that
explains that the gap occurred through no fault of his own be inserted
in his record. (4) We reverse the court's decision insofar as it
(i) ordered the removal of the "Corrected Copy" notation on the March
1984 OER and (ii) voided the 1993 and 1994 nonselections for promotion
to lieutenant colonel and retroactively reinstated Mr. Roth at the rank
of major with back pay and benefits. (5) We remand the case to the Court
of Federal Claims, which is instructed to remand the case to the Board
for further proceedings, with the direction that the Board make the
appropriate record corrections and convene SSBs for the 1993 and 1994
lieutenant colonel selection boards.

COSTS

Each party shall bear its own costs.

[AFFIRMED-IN-PART, MODIFIED-IN-PART, REVERSED-IN-PART, and
REMANDED]{.underline}

[^1]: Air Force Regulation 36-10 (Nov. 1982) ("AFR 36-10") details the
    process by which officers are rated through the use of OERs. Each
    officer's performance is evaluated by a "rater," who is "\[u\]sually
    . . . the officer's immediate supervisor"; an additional rater,
    "\[u\]sually the rater's rater"; and an "indorser," by default the
    additional rater's rater and the final evaluator on an OER. AFR
    36-10, ¶¶ 2-22(a), 2-2(a), 2-10, tbl. 4-4. The indorser, however, is
    permitted to defer to a person higher in the rating chain if
    desired, in which case the person deferred to becomes the indorser.
    [Id.]{.underline} ¶ 2-10. AFR 36-10 explains that the rating chain
    is generally the same as the chain of supervision for the officer,
    but commanders do have latitude in determining how the rating chain
    will be structured. [Id.]{.underline} ¶ 2-23(a). Thus, "\[t\]his
    flexibility provides a further opportunity to achieve
    differentiation and recognizes that both level of indorsement and
    indorser grade have an impact on those who use the OER."
    [Id.]{.underline}; [see also]{.underline} [Small v. United
    States]{.underline}, 158 F.3d 576, 579, 581-82 (Fed. Cir. 1998)
    (discussing AFR 36-10 generally and addressing the "substantial
    measure of discretion" afforded commanders in structuring the rating
    chain). Mr. Roth contends that the rank and position of the indorser
    on an OER can determine whether an officer is promoted.
    [See]{.underline} [Lindsay v. United States]{.underline}, 295 F.3d
    1252, 1255 (Fed. Cir. 2002) ("According to Lindsay, the level at
    which an OER was indorsed was a critical marker of an OER's
    favorability, and an OER indorsed at a low level was a clear 'do not
    promote signal' to subsequent selection boards.").

[^2]: A captain or major of the Regular Air Force who fails selection
    for promotion to the next higher grade for the second time and whose
    name does not appear on a list of officers recommended for promotion
    to the next higher grade is either discharged or, if he is eligible
    for retirement, involuntarily retired. 10 U.S.C. § 632 (2000).

[^3]: [See]{.underline} 10 U.S.C. § 632, [supra]{.underline}, note 2.

[^4]: During the relevant time period, an AF Form 77 was used,
    [inter]{.underline} [alia]{.underline}, as a substitute for a
    missing report and to cover gaps in performance records. AFR 36-10,
    ¶ 6-1(a), (b). A Promotion Recommendation Form ("PRF") was prepared
    by an officer's senior rater to assist promotion boards in
    determining those officers best qualified. AFR 36-10, ¶ 1-8(a)(2)
    (Aug. 1, 1988). The senior rater has three choices on a PRF:
    Definitely Promote, Promote, Do Not Promote. [Id.]{.underline} ¶
    4-5(a). A Definitely Promote recommendation is the highest
    recommendation that can be given by a senior rater on a PRF, and the
    number of "Definitely Promotes" that a senior rater can assign in
    any given period is strictly limited. [Id.]{.underline};
    [see]{.underline} [Haselrig v. United States]{.underline}, 53 Fed.
    Cl. 111, 116 (2002), [aff'd]{.underline}, 333 F.3d 1354 (Fed. Cir.
    2003).

[^5]: The Board's decision is not final when it denies applications to
    correct records based on allegations of whistleblowing conduct
    protected by 10 U.S.C. § 1034 (2000). 32 C.F.R. § 865.4(p).

[^6]: The Senate must confirm promotions to the grade of major or above.
    10 U.S.C. § 624(c) (2000) ("Appointments under this section shall be
    made by the President, by and with the advice and consent of the
    Senate, except that appointments under this section in the grade of
    first lieutenant or captain or lieutenant (junior grade) or
    lieutenant shall be made by the President alone.").

[^7]: Section 628 was substantially amended in 2001, 107 Pub. L. No.
    107, § 503(b), 115 Stat. 1012, 1084 (2001) (codified as amended at
    10 U.S.C. § 628), but those amendments explicitly preclude their
    application to any action, such as Mr. Roth's, commenced in a court
    of the United States prior to their enactment on December 28, 2001.
    [Id.]{.underline} § 503(c)(2), 115 Stat. at 1085. For a detailed
    discussion of the procedures governing the operation of SSBs, see
    [Haselrig]{.underline}, 53 Fed. Cl. 111.

[^8]: Generally, a correction board decision will come before the Court
    of Federal Claims in one of two circumstances: either an officer
    will have applied to the correction board, been denied relief, and
    then will have filed suit under the Tucker Act, [see]{.underline}
    [Haselrig]{.underline}, 333 F.3d at 1355, or the officer will have
    filed suit under the Tucker Act before proceeding to a correction
    board for relief, [see]{.underline} [Richey]{.underline}, 322 F.3d
    at 1323. In the latter circumstance, the court typically will
    require the officer to proceed to the Board and will retain
    jurisdiction while that happens. [Id.]{.underline}

[^9]: As noted above, the remaining record corrections ordered by the
    Court of Federal Claims were upgrading the indorsement levels on
    three of Mr. Roth's OERs; removal of the "Corrected Copy" notation
    from his March 1984 OER; forwarding recommendations for approval of
    an end-of-tour decoration for his service at Shaw AFB; ordering the
    award of an end-of-tour decoration for his service at Ramstein AFB;
    and insertion of an AF Form 475, Training Report, to reflect AFIT
    sponsorship of his graduate school program during his involuntary
    separation.

[^10]: As noted above, the government does not challenge the insertion
    of an AF Form 77 explaining the absence of an OER for the eleven
    months prior to Mr. Roth's separation from the Air Force in 1989.

[^11]: Note 7 states, "Unless otherwise directed by the \[Board\]: a.
    Corrected reports will be annotated according to note 2, above."
    Note 2 explains that "\[t\]he front margin of the original or
    primary copy of the corrected report will be annotated 'CORRECTED
    COPY.'"

[^12]: Mr. Roth presented testimony before the Board regarding the
    effect of his failure to receive end-of-tour decorations. For
    example, Major General Richard J. O'Lear, USAF, Retired, who would
    have been the senior rater on Mr. Roth's OER and the approval
    authority for an end-of-tour award, explained:

    > Although there is no guarantee for any award, each member is
    > usually considered for an award at the end of his normal tour . .
    > . . In general, any officer who serves honorably, competently, and
    > does "more than the average," is most likely to receive an award .
    > . . . I would certainly support such an award, if \[Mr. Roth's\]
    > immediate supervisors felt his performance was above average.

    (Board R. 135) In addition, General Garrison, an additional rater
    for Mr. Roth's June 1985 OER, concluded that "\[t\]he lower
    indorsement levels and lack of end-of-tour medal potentially put
    Major Roth at a significant and unfair disadvantage when competing
    against his peers both before selection boards and for assignments.
    (Board R. 137) [See also]{.underline} Letter from Lieutenant Colonel
    Atkinson to the Board (Board R. 138); Letter from Col. Heller to the
    Board (Board R. 139); Letter from Colonel Coward to the Board ("In
    my judgment . . . no end-of-tour medals . . . could only have had a
    negative effect on the promotion board.") (Board R. 140). Mr. Roth
    also included a letter from a member of a promotion board, detailing
    what its members looked for in selecting lieutenant colonels, that
    stated, "Medals helped and were a discriminator if you didn't get
    one when you went PCS." Letter from Colonel Felix Sanchez, Vice
    Commander USAF, to All 377 ABW Supervisors of Officers (Nov. 1993).
    (Board R. 141)

[^13]: AFI 36-0-2406 details the procedures governing AF Form 77, Letter
    of Evaluation Sheet, which is "\[u\]sed to substitute for a missing
    evaluation report, cover gaps in performance records," and other
    purposes. AFR 31-11 addresses the procedures for the correction of
    OERs, while AFR 31-3 identifies potential record corrections that
    may be undertaken by the Board.

[^14]: If the correction board declines to convene an SSB because it
    determines that even in the face of the record corrections that have
    been made, the actions of the original selection boards were neither
    contrary to law nor involved material error of fact or material
    administrative error, the officer may obtain review of that decision
    in the Court of Federal Claims, provided, as outlined above, that
    the court has jurisdiction in the case. By the same token, if a
    correction board orders an SSB convened and sustains a decision of
    the SSB denying an officer's promotion, the officer may obtain
    review of that decision also in the Court of Federal Claims. In any
    event, the court's review in either case is limited essentially to
    an Administrative Procedure Act standard of review: whether the
    Board's decision is arbitrary, capricious, contrary to law, or
    unsupported by substantial evidence. [Haselrig]{.underline}, 333
    F.3d at 1355 (citing [Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed.
    Cir. 1986))]{.underline}. Section 628(g)(2), part of the 2001
    amendments to the statute, codifies this standard of review.
    [See]{.underline} [Richey]{.underline}, 322 F.3d at 1324-35
    (applying 10 U.S.C. § 628(g)(2)).

[^15]: Though inapplicable to Mr. Roth, the 2001 amendments to section
    628 impose the same restriction on the authority of the court to
    award relief:

    > \(h\) Limitations of other jurisdiction.---No official or court of
    > the United States may, with respect to a claim based to any extent
    > on the failure of a person to be selected for promotion by a
    > promotion board---
    >
    > \(1\) consider the claim unless the person has first been referred
    > by the Secretary concerned to a special selection board convened
    > under this section and acted upon by that board and the report of
    > the board has been approved by the President; or
    >
    > \(2\) except as provided in subsection (g), [grant any relief on
    > the claim unless the person has been selected for promotion by a
    > special selection board convened under this section to consider
    > the person for recommendation for promotion]{.underline} and the
    > report of the board has been approved by the President.

    107 Pub. L. No. 107, § 503(b), 115 Stat. at 1084 (codified at 10
    U.S.C. § 628(h)) (emphasis added).

[^16]: Mr. Roth is incorrect in his assertion that because under the
    Tucker Act, equitable relief is available only "incident of and
    collateral to" a money judgment, the Court of Federal Claims first
    must reinstate him and award him back pay in order to subsequently
    order corrections to his record. [Porter]{.underline} and
    [Richey]{.underline} make that clear. In any event, in pre-DOPMA
    military discharge cases, the court historically first assessed the
    merits of an officer's claim of errors in his military record. Once
    the court determined on the merits that an officer's record
    contained sufficiently detrimental errors, only then would it
    reinstate the officer and award back pay. [See, e.g.]{.underline},
    [Sanders]{.underline}, 594 F.2d at 817-20 (concluding that OERs
    challenged by the officer did not fairly portray his record and
    stating that "upon his corrected record," the officer should be
    given restoration to active duty and reconsideration for promotion
    by a selection board); [Yee v. United States]{.underline}, 512 F.2d
    1383, 1388 (Ct. Cl. 1975) (addressing the merits of the officer's
    claim that his record was defective before ultimately reinstating
    him and awarding him back pay); [Caddington]{.underline}, 147 Ct.
    Cl. at 631-35 (same). It is illogical to contend that the court,
    before ordering corrections to an officer's record, must first
    reinstate him and award him back pay---the reinstatement and award
    of back pay only follow after sufficient severity of the errors in
    the officer's record is established on the merits.