United States Court of Appeals 

for the Federal Circuit 

__________________________ 

NANCY MELENDEZ CAMILO, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2010-5069 

__________________________ 

Appeal from the United States Court of Federal 

Claims in case no. 09-CV-183, Judge Charles Lettow. 

__________________________ 

Decided: April 29, 2011 

__________________________ 

MICHAEL D.J. EISENBERG, Law Office of Michael D.J. 

Eisenberg, of Washington, DC, arguerd for plaintiffappellant. 

JESSICA R. TOPLIN, Trial Attorney, Commercial Litigation Branch, United States Department of Justice, of 

Washington, DC, argued for defendant-appellee. With 

her on the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and DONALD E.

KINNER, Assistant Director. 

__________________________ 
CAMILO v. US 2

Before NEWMAN, CLEVENGER, and LINN, Circuit Judges. 

CLEVENGER, Circuit Judge. 

Nancy Melendez Camilo (“Ms. Melendez Camilo”) appeals the judgment of the Court of Federal Claims granting the government’s motion for judgment upon the 

administrative record on the grounds that Ms. Melendez 

Camilo failed to present substantial evidence that the Air 

Force Board for Correction of Military Records (“Correction Board”) was prejudiced against her, or that its decision denying her request for correction of her military 

records was otherwise arbitrary and capricious. Melendez 

Camilo v. United States, 89 Fed. Cl. 671 (2009). Because 

the Court of Federal Claims correctly granted the government’s motion, we affirm. 

I 

Ms. Melendez Camilo commenced active duty military 

service in the United States Air Force (“USAF”) on March 

18, 1979. On October 5, 1981, she was promoted to the 

rank of captain. In 1987 and again in 1988, Ms. Melendez 

Camilo was considered but not selected for promotion to 

the rank of major. As a result of her failure to be selected 

for promotion in 1987 and 1988, the USAF discharged Ms. 

Melendez Camilo from active duty on January 31, 1989,1

and assigned her to the Inactive Status List Reserve 

Section, effective on February 1 of that year. 

On March 12, 1988, Ms. Melendez Camilo applied to 

the Correction Board requesting that it remove from her 

 1

 A captain or major of the USAF who twice fails selection for promotion to the next higher grade and whose 

name does not appear on a list of officers recommended 

for promotion to the next higher grade is either discharged or, if she is eligible for retirement, involuntarily 

retired. See 10 U.S.C. § 632. 
3 CAMILO v. US

records the Officer Effectiveness Report (“OER”) for the 

period from June 16, 1984 through January 31, 1985. Ms. 

Melendez Camilo contended that her failure to be selected 

for promotion to the rank of major was due to the OER 

(the “contested OER”). More specifically, she contended 

that the contested OER did not “reflect an accurate assessment of her job performance and officer potential 

during th[e] period.” While the contested OER was otherwise positive, the rater and endorser awarded Ms. 

Melendez Camilo a three in evaluation of potential, 

because she was rated below standard in planning and 

organizing work. The low rating for planning and organizing work was apparently due to confusion over 

whether Ms. Melendez Camilo, as squadron section 

commander, or a first sergeant, bore responsibility for 

correcting seriously disorganized orderly room administrative areas. Ms. Melendez Camilo had briefed the 

squadron commander on the need to resolve the matter, 

but the squadron commander took no action to clarify the 

relevant responsibilities. Ms. Melendez Camilo’s squadron commander supported her request to void the contested OER, concluding that the situation that led to the 

low rating for planning and organizing work was beyond 

Ms. Melendez Camilo’s control, and therefore not a sound 

basis for her substandard rating. The Correction Board 

agreed and recommended, inter alia, that the Deputy for 

Air Force Review Boards (“Deputy”) void the contested 

OER and remove it from Ms. Melendez Camilo’s records. 

On June 9, 1989, after Ms. Melendez Camilo had 

separated from active duty, the Deputy accepted the 

Correction Board’s recommendation to void the contested 

OER and remove it from her records, as well as consider 

her for promotion to major by a Special Selection Board 

(“SSB”). The SSB met to reconsider Ms. Melendez 
CAMILO v. US 4

Camilo’s records in November 1989 and did not select her 

for promotion to major. 

After Ms. Melendez Camilo had filed several requests 

for reconsideration with the Correction Board seeking a 

direct promotion to the rank of major, the Correction 

Board concluded that she had presented sufficient evidence of error and recommended partial relief. Specifically, the Correction Board recommended that Ms. 

Melendez Camilo’s records be corrected to reflect that: (a) 

she was tendered a Regular USAF appointment and, upon 

Senate confirmation, she accepted the appointment, 

effective December 18, 1985; (b) she was considered and 

selected for promotion to the grade of major by the Calendar Year 1987 Central Major Selection Board and, upon 

Senate confirmation, she was given an appropriate effective date and rank; (c) the OER rendered for the period of 

December 18, 1986 through December 17, 1987 be declared void and removed from her records;2 and (d) she 

was not released from extended active duty on January 

31, 1989, but continued on extended active duty and was 

ordered a Permanent Change of Station to her home of 

record. Further, the Correction Board recommended: “if 

[Ms. Melendez Camilo] was considered and nonselected 

for promotion to the grade of lieutenant colonel by a 

regularly scheduled promotion board prior to receiving 

two current Officer Performance Reports in the grade of 

major, her nonselection(s) be declared void.” 

 2

 In making its recommendation, the Correction 

Board noted that the contested OER, which “place[d] [Ms. 

Melendez Camilo] in the bottom 5% of her peers, did have 

an effect on subsequent [OERs].” More specifically, the 

contested OER “hindered” Ms. Melendez Camilo’s job 

opportunities and endorsement levels on subsequent 

OERs and, in particular, the OER bearing December 17, 

1987 as its closing date. 
5 CAMILO v. US

On May 15, 1995, the Deputy accepted the Correction 

Board’s recommendation. On August 15, 1995, the USAF 

reinstated Ms. Melendez Camilo to active duty and promoted her to major, with a date of rank of September 1, 

1988. 

Upon returning to active duty, Ms. Melendez Camilo 

was assigned to Langley Air Force Base in Virginia where 

she worked as Chief of Communications and Information 

Manpower Organization. She received one Officer Performance Report (“OPR”) while in this position—her first 

OPR as a major. 

For her next assignment, Ms. Melendez Camilo 

worked at Air Force Reserve Officers’ Training Corps 

(“AFROTC”) Detachment 755 in San Juan, Puerto Rico as 

Assistant Professor of Aerospace Studies. During this 

assignment, Ms. Melendez Camilo discovered and reported violations of AFROTC standards committed by 

leadership of the detachment, including her commander, 

which resulted in those implicated in wrongdoing being 

relieved of their duties. Prior to his removal, Ms. 

Melendez Camilo’s detachment commander, Lieutenant 

Colonel Ramos, wrote two of her OPRs (the “Ramos 

OPRs”), one of which was the second OPR she received as 

a major. While still at this assignment, after having 

received two OPRs at the rank of major, Ms. Melendez 

Camilo was considered but not selected for promotion to 

the rank of lieutenant colonel. 

Ms. Melendez Camilo’s final active duty assignment 

in the USAF was at Maxwell Air Force Base in Alabama 

where she worked as Director of Information Management. During her time at Maxwell, Ms. Melendez Camilo 

was considered but not selected for promotion to lieutenant colonel once in 2000 and once again in 2001. 
CAMILO v. US 6

On February 22, 2002, Ms. Melendez Camilo applied 

to the Correction Board for relief, specifically seeking a 

direct promotion to the rank of lieutenant colonel on the 

primary ground that her seven-year break in service 

denied her the opportunity to develop a record of performance which would support her promotion. Ms. Melendez 

Camilo also raised the fact that Lieutenant Colonel 

Ramos at AFROTC prepared her second eligible OPR as a 

major before she met with the promotion board and “[n]ot 

surprisingly, given [Lieutenant Colonel Ramos’s] hostility 

towards [her],” she was nonselected for promotion. 

After consideration, the Correction Board concluded 

that Ms. Melendez Camilo had not presented sufficient 

evidence of material error or injustice. The Correction 

Board explained that its prior recommendations, specifically those implemented based upon its decision of May 

15, 1995, had provided Ms. Melendez Camilo with “an 

opportunity to compete for promotion on a fair and equitable basis.” The Correction Board observed that 

“[p]romotion to the grade of lieutenant colonel is very 

competitive,” and “officers must compete for promotion 

under the whole person concept whereby many factors are 

carefully assessed by selection boards.” In effect, the 

Correction Board denied relief because Ms. Melendez 

Camilo failed to provide persuasive evidence that she 

would have been selected for promotion to lieutenant 

colonel but for the interruption of her career. 

On March 31, 2003, Ms. Melendez Camilo was involuntarily retired from the USAF for failure to be selected 

for promotion to lieutenant colonel. See 10 U.S.C. § 632. 

At the time of her retirement, she had served 25 years, 7 

months, and 9 days in the USAF. 

Ms. Melendez Camilo filed a complaint with the Court 

of Federal Claims on March 24, 2009, in which she 
7 CAMILO v. US

averred that her retirement from the USAF and the 

Correction Board’s decision to deny her request for correction of her records and immediate promotion to the grade 

of lieutenant colonel were arbitrary and capricious. The 

government moved for judgment on the administrative 

record. In opposing the government’s motion, Ms. 

Melendez Camilo contended that the Correction Board 

was “prejudiced against her because of her time of leave 

from the military” when it issued its decision denying her 

relief. 

The Court of Federal Claims granted the government’s motion, finding that the Correction Board thoroughly considered Ms. Melendez Camilo’s break in 

service. The Court of Federal Claims further concluded 

that Ms. Melendez Camilo failed to present substantial 

evidence that the Correction Board was prejudiced 

against her, or that its decision was otherwise arbitrary 

and capricious. Ms. Melendez Camilo timely appealed. 

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). 

II 

This court reviews the trial court’s determination on 

the legal issue of the government’s conduct, in a grant of 

judgment upon the administrative record, without deference, applying the same standard of review that the Court 

of Federal Claims applied. Barnes v. United States, 473 

F.3d 1356, 1361 (Fed. Cir. 2007) (citing Chambers v. 

United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005)). 

Accordingly, the scope of our review for challenges to 

military correction board decisions is “‘limited to determining whether a decision of the Correction Board is 

arbitrary, capricious, unsupported by substantial evidence, or contrary to applicable statutes and regulations.’” 

Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 

1983) (quoting de Cicco v. United States, 677 F.2d 66, 70 
CAMILO v. US 8

(Ct. Cl. 1982)). We will not reverse the trial court’s legal 

conclusions unless incorrect as a matter of law, and will 

not disturb its factual findings unless clearly erroneous. 

Id. at 1158. 

III 

As this court has noted before, “when a military officer is involuntarily separated from active duty, or mandatorily retired, for twice failing to be selected for 

promotion, [s]he may apply for relief, pursuant to 10 

U.S.C. § 1552(a), to the appropriate correction board.” 

Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 

2004). A correction board is made up of civilians, 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). 

When an officer presents the Correction Board with 

an application for relief, 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(h)(4). 

“When a correction board fails to correct an injustice 

clearly presented in the record before it, it is acting in 

violation of its mandate.” Roth, 378 F.3d at 1381 (quoting 

Yee v. United States, 206 Ct. Cl. 388, 512 F.2d 1383, 1387 

(1975)). 

Before this court, Ms. Melendez Camilo repeats her 

argument that the Correction Board failed to account for 

the prejudice against her promotion chances due to the 

seven-year gap in her service, but describes as the “crux” 

of her argument prejudice she associates with the Ramos 

OPRs. Ms. Melendez Camilo argues that the lack of any 
9 CAMILO v. US

specific findings by the Correction Board regarding the 

effect of the Ramos OPRs demonstrates that the Correction Board “entirely failed to consider an important aspect 

of the problem” and correct an injustice she presented. 

We disagree. 

Ms. Melendez Camilo raised the issue of the Ramos 

OPRs with both the Correction Board and the Court of 

Federal Claims.3 The issue, therefore, is properly before 

this court. We understand Ms. Melendez Camilo’s argument regarding the Ramos OPRs, but find it unpersuasive. We presume that actions taken by the Correction 

Board are valid, and the burden is upon the complainant 

to show otherwise. Cooper v. United States, 203 Ct. Cl. 

300, 304 (1973). We further presume that the Correction 

Board performed its function according to the regulations 

and considered all of Ms. Melendez Camilo’s records. See

Armstrong v. United States, 205 Ct. Cl. 754, 756 (1974); 

see also Plant Genetic Sys., N.V. v. DeKalb Genetics Corp., 

315 F.3d 1335, 1343 (Fed. Cir. 2003) (“We presume that a 

fact finder reviews all the evidence presented unless he 

explicitly expresses otherwise.”). In other words, an 

administrative board’s or trial court’s failure to mention 

 3 In her statement to the Correction Board, Ms. 

Melendez Camilo discussed her whistleblowing activities 

at AFROTC that resulted in Lieutenant Colonel Ramos’s 

removal. She also noted that Lieutenant Colonel Ramos 

prepared her 1998 OPR prior to his removal, and that the 

1998 OPR was her second OPR as a major, making her 

eligible to meet the lieutenant colonel’s promotion board. 

Ms. Melendez Camilo further explained to the Correction 

Board, “[n]ot surprisingly, given [Lieutenant Colonel 

Ramos’s] hostility towards me, I was then nonselected for 

promotion to Lieutenant Colonel in March 1999.” The 

Correction Board recognized the issue in the part of its 

decision discussing and relying on the Air Force Personnel 

Center evaluation. 
CAMILO v. US 10

specific evidence does not mean, as Ms. Melendez Camilo 

contends, that it failed to consider that evidence. See

FMC Corp. v. Hennessy Indus., Inc., 836 F.2d 521, 524 

(Fed. Cir. 1987). Thus, the Correction Board’s failure to 

specifically mention the Ramos OPRs in its decision does 

not mean that it failed to consider them. 

In the present case, the Correction Board reached its 

decision after it thoroughly reviewed Ms. Melendez 

Camilo’s complete submission, which included the Ramos 

OPRs and her arguments regarding their impact on her 

promotion, and noted her contentions. Further, the 

Correction Board relied on the recommendation of the Air 

Force Personnel Center which, as Ms. Melendez Camilo 

points out in her reply brief, specifically mentioned that 

Lieutenant Colonel Ramos, upon whom she blew the 

whistle, wrote her second OPR as a major. It is clear that 

the Ramos OPRs were before the Correction Board. The 

fact that the Correction Board did not specifically discuss 

the Ramos OPRs or their alleged impact on Ms. Melendez 

Camilo’s promotion is insufficient to overcome the presumption that the Correction Board considered the evidence and Ms. Melendez Camilo points to nothing in the 

record to the contrary.4 

 4

 The overwhelming majority of Ms. Melendez 

Camilo’s submissions to the Correction Board related to 

her seven-year gap in service. Indeed, although Ms. 

Melendez Camilo submitted an expanded statement, 

talking papers, questions and answers, letters from her 

senior raters and all of her OPRs, she devoted only one 

paragraph to her discussion of the Ramos OPRs. That 

paragraph implied but did not explicitly state a connection between the Ramos OPRs and her nonselection to 

lieutenant colonel. Given the amount of evidence and 

argument Ms. Melendez Camilo presented regarding her 

gap in service, it is not surprising that the Correction 

Board’s decision predominantly focuses on that issue and 
11 CAMILO v. US

The Ramos OPRs contained only positive comments in 

great volume, describing Ms. Melendez Camilo as: “Top 

manager,” “Outstanding leader[],” “Innovator,” “Exceptionally efficient,” “Excellent teaching skills,” “Dedicated 

officer,” and “Instrumental in the reorganization of the 

new temporary facility.” All that is missing from the 

Ramos OPRs to make them even more positive is a “promote now” recommendation. While Ms. Melendez Camilo 

makes much of the fact that the Ramos OPRs do not 

include the “promote now” language, which she contends 

is required for a promotion to the next rank, the record 

evidence shows that none of the OPRs she received after 

her reinstatement to active duty (from 1996 through 

2001) contain the “promote now” language that she claims 

is necessary for advancement. Even Ms. Melendez 

Camilo’s senior raters, who wrote letters on her behalf to 

the Correction Board, stated that they could not give her 

a “definitely promote” or “promote now” recommendation 

due to her seven-year break in service. According to one 

rater, giving Ms. Melendez Camilo a “definitely promote” 

recommendation “would have been unfair to the other 

officers in her year group who are under my command 

who have stronger records.” Thus, the absence of a “promote now” recommendation in the Ramos OPRs is consistent with the positive recommendations that Ms. 

Melendez Camilo’s other raters provided and insufficient 

to demonstrate prejudice against her. Accordingly, Ms. 

Melendez Camilo has failed to meet her burden of showing that the Correction Board’s decision was arbitrary and 

capricious or in violation of its mandate. 

 

does not discuss in detail Ms. Melendez Camilo’s contentions regarding the Ramos OPRs. 
CAMILO v. US 12

IV 

For the foregoing reasons, we affirm the judgment of 

the Court of Federal Claims. 

AFFIRMED

COSTS

No costs.