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Paddock v. United States Air Force

United States District Court, E.D. Washington

November 14, 2019

DENNIS G. PADDOCK, Plaintiff,
v.
UNITED STATES AIR FORCE, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          ROSANNA MALOUF PETERSON, UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is Defendant United States Air Force's (the “Air Force's”) Motion to Dismiss, ECF No. 14, and Plaintiff Dennis Paddock's Motion to Remand to the Air Force Board for Correction of Military Records (the “AFBCMR”), ECF No. 18. Having reviewed the parties' filings and the relevant law, the Court grants the Motion to Dismiss and denies the Motion to Remand to the AFBCMR.

         BACKGROUND

         While serving in the Air Force, Plaintiff sought a promotion from the rank of major to lieutenant colonel in the early 1980s. ECF No. 1-2. After not receiving the promotion on two occasions, Plaintiff scheduled a retirement date in August 1983 on the basis that he was subject to involuntary retirement. ECF No. 1-2 at 8; see also 10 U.S.C. § 632 (effective Sept. 15, 1981). However, in June 1983, the Air Force corrected Plaintiff's promotion record, and he was retroactively promoted to lieutenant colonel, as if he had been selected for promotion in 1978. ECF No. 1-1 at 8. Plaintiff cancelled his planned, involuntary retirement. ECF No. 1 at 5.

         Shortly after Plaintiff's promotion, the Air Force considered Plaintiff for promotion from lieutenant colonel to colonel. See ECF No. 1-1 at 61. However, the promotion board did not promote Plaintiff. See Id. Plaintiff maintains, as do individuals who wrote letters of support for Plaintiff, that he could not have been competitive for a promotion from lieutenant colonel to colonel so soon after his record was corrected because he did not have an opportunity to build a record of positive Officer Effectiveness Reports (“OERs”) as a lieutenant colonel. See ECF Nos. 1 at 5; 1-1 at 61, 63.

         Plaintiff voluntarily retired on April 1, 1984, after completing more than twenty years of service, making him eligible to receive a pension. See ECF No. 1-2 at 5. Plaintiff asserts that he “reluctantly” decided to retire and “seek new opportunities” because he perceived that further advancement in the Air Force was “impossible.” ECF No. 1 at 6.

         On March 23, 2002, Plaintiff applied to the AFBCMR to correct his records

to reflect that he was continued on active duty until August 1991, which would have enabled him to obtain a 28-year Lt Col career; or that he was directly promoted to the grade of colonel and continued on active duty until August 1993, which would have given him a full 30-year career.

ECF No. 1-2 at 9. The AFBCMR denied Plaintiff's request on September 17, 2003. Id. Plaintiff did not include the September 17, 2003 decision with the Complaint, nor any other document indicating the reasoning behind the AFBCMR's denial.

         On February 20, 2004, Plaintiff sought reconsideration of the September 2003 denial by the AFBCMR. ECF No. 1-2 at 10. On February 27, 2004, the AFBCMR found that Plaintiff's “evidence did not meet the criteria for reconsideration.” Id.

         On April 29, 2004, Plaintiff appealed to the Secretary of the Air Force, who deferred the case to the AFBCMR, where Plaintiff “was again advised that his request did not meet the criteria for reconsideration.” ECF No. 1-2 at 10.

         On September 6, 2005, Plaintiff requested reconsideration of his appeal. ECF No. 1-2 at 10. On June 27, 2006, the AFBCMR denied his request. Id.

         On January 12, 2008, Plaintiff again filed an application with the AFBCMR, requesting that his military career “be made whole.” ECF No. 1-2 at 10. However, on July 7, 2008, Plaintiff requested to administratively close the new case, and the AFBCMR closed the case on August 19, 2008. Id. at 5.

         On February 22, 2010, Plaintiff again sought relief from the AFBCMR. ECF No. 1-2 at 10. The AFBCMR reviewed additional documentation submitted by Plaintiff and concluded that the documentation did not amount to new and relevant evidence supporting reconsideration of the AFBCMR's decision or justify reopening Plaintiff's case. Id. at 12. Alongside that conclusion, the AFBCMR also determined that OERs for Plaintiff that were entered between December 30, ...


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