Pursuant to Rule 56(d)(1) of the Rules of the Court of Federal Claims, defendant,
the United States, respectfully submits the following proposed findings
of uncontroverted fact in support of our contemporaneously-filed motion
for summary judgment.
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In May 1993, based upon congressionally mandated reductions
in the manpower levels of the Armed Forces,
see, e.g., 10 U.S.C. § 115 (historical and statutory notes),
the United States Air Force convened the Fiscal Year 1994 Colonel
(O-6) Selective Early Retirement Board (“FY94 O-6 SERB” or
“SERB”). Def. Ex. 1 at p.1.
1
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The purpose of the FY94 O-6 SERB was to select for
mandatory early retirement colonels in the 1966 and
1968 year groups — i.e., colonels who began serving
on active duty as officers in either 1966 or 1968.
See id.
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The Secretary of the Air Force issued a memorandum
of instructions (“MOI”) to the SERB members which
provided guidance for the selection process.
See Def. Ex. 1.
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The MOI for the FY94 O-6 SERB stated, in pertinent part:
You will use the best qualified method of selection. . . .
You [the SERB members] must act in the best interest
of the Air Force and not any particular command,
specialty or group. . . .
You will use the whole person concept to assess each
officer’s relative potential to continue productive service
on active duty. This requires careful review to assess
such factors as job performance, professional qualities,
leadership, depth and breadth of experience, job
responsibility, academic and professional military
education, and specific achievements. . . .
* * *
Your evaluation of minority and women officers must
clearly afford them fair and equitable consideration.
Equal opportunity for all officers is an essential element
of our selection system. In your evaluation of the records
of minorities and women, you should be particularly
sensitive to the possibility that past individual and societal
attitudes, and in some instances utilization policies or
practices, may have placed these officers at a disadvantage
from a total career perspective. The board shall prepare
for review by the Secretary and the Chief of Staff, a report
of minority and female officer selections as compared to
the selection rates for all officers considered by the board.
* * *
Each of you . . . is responsible to maintain the integrity
and independence of this selection board, and to foster
the careful consideration, without prejudice or partiality,
of all eligible officers. . . .
* * *
. . . You are to base your recommendations on the
material in each officer’s military record, any information
I have provided to the board . . . , and any information
about his or her own record communicated to you by
individual eligible officers. . . .
* * *
If at any time you believe that you cannot in good
conscience perform your duties as members of the
board without prejudice or partiality, you have a duty
to request relief by me from this duty. I will honor any
such request. . . .
Id. at pp.1-5.
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The MOI centers around four primary themes:
(1) officers are to be judged upon their entire record with primary
emphasis upon job performance (the “whole person concept”), to
determine which officers are best qualified;
(2) officers are to be judged only upon their records, and not
upon any extraneous information or considerations;
(3) every officer is to be given equal consideration and to be
judged fairly and equitably, without prejudice or partiality of any
kind; and
(4) SERB members must exercise their independent
judgment and discretion in selecting the best qualified officers
who are fully qualified for retention.
See id.
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The MOI requires SERB members to treat all officers equally,
“without prejudice or partiality” of any kind.
See id. at 3.
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The FY94 O-6 SERB members prepared two board reports —
one each for the 1966 and 1968 year groups — which appear
at exhibits two and three respectively to our motion for
summary judgment.
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