NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009- 5040
JAMES E. POOLE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
James E. Poole, of Rockbridge Bath, Virginia, pro se.
Michael D. Austin, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
him on the brief were Jeanne E. Davidson, Director, and Brian M. Simkin, Deputy
Director.
Appealed from: United States Court of Federal Claims
Judge Nancy B. Firestone
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-5040
JAMES E. POOLE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in 08-CV-291, Judge Nancy B.
Firestone.
__________________________
DECIDED: May 6, 2009
__________________________
Before LINN, PROST, and MOORE, Circuit Judges.
PER CURIAM.
Appellant James E. Poole (“Poole”) appeals an order of the United States Court
of Federal Claims granting judgment on the administrative record in favor of the United
States. Poole v. United States, No. 08-CV-291 (Ct. Fed. Cl. Dec. 15, 2008) (“Order”).
Because the decision of the Court of Federal Claims is not arbitrary, capricious, contrary
to law, or unsupported by substantial evidence, we affirm.
Poole joined the Virginia Army National Guard and eventually accepted Active
Guard and Reserve (“AGR”) status, which places a National Guard officer on full-time
active duty. See 10 U.S.C. § 12310 (2006). In 1992, a promotion board decided not to
promote Poole from captain to major. Poole appealed this decision to the Army Board
for Correction of Military Records (“Corrections Board”). The next year, another board
promoted Poole to major in his reserve status. The Army issued Poole a letter dated
May 3, 1993 that listed his promotion eligibility date as September 22, 1993. Poole’s
promotion was as a “Reserve Commissioned Officer Not on Active Duty,” meaning he
could not accept his promotion immediately without leaving active duty. On July 7,
1993, the Corrections Board ordered that Poole’s records be corrected to reflect that he
met the requirements for promotion in 1992. On August 18, 1993, the Army issued
Poole another letter nearly identical to the May 3, 1993 letter, but listing Poole’s
promotion eligibility date as September 22, 1992. Poole claims he did not receive this
second letter until April 12, 2005.
In a letter to the Army dated August 30, 1993, Poole elected to remain on active
duty and deferred his promotion. Poole served on active duty until 1996, when he
began to suffer mental disabilities. An informal Physical Evaluation Board (“PEB”)
placed Poole on the Temporary Disability Retirement List effective November 1, 1996,
ending his active duty. See Order at 4. A formal PEB then permanently retired Poole
for disability in his then-current rank of captain, effective October 6, 1998. In 1999,
Poole unsuccessfully appealed to the Corrections Board for retroactive promotion to
major. However, on October 25, 2002, the Army Physical Disability Agency promoted
Poole to major retroactive to November 1, 1996 and retired him in that rank. Id.
Poole filed his current claim with the Court of Federal Claims on April 18, 2008,
claiming that the determination of the Physical Disability Agency was wrong and that his
promotion’s effective date should have been September 22, 1992 instead of November
2009-5040 2
1, 1996, entitling him to back pay of approximately $30,000. The Government moved
for judgment on the administrative record. The court granted the motion, finding that
under Army Regulation 135-155 (1994), while Poole’s promotion eligibility date was
September 22, 1992, his promotion did not become effective (and provide pay) until
1996. Id. Poole appeals, and we have jurisdiction under 28 U.S.C. § 1295(a)(3) (2006).
We review a judgment on the administrative record by the Court of Federal
Claims de novo. Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005).
We will not overturn a military board’s decision unless it is arbitrary, capricious, contrary
to law, or unsupported by substantial evidence. Id.
Poole’s claim turns on the effective date of his promotion. Both letters sent to
Poole explained that “[t]he effective date of the promotion will be the later of the
following dates” (emphasis added): the listed date (either September 22, 1992 or 1993),
the date Poole received federal promotion to major, or the date after his federal service
ended. It is undisputed that the triggering event for Poole’s promotion was his
separation from active duty on November 1, 1996. Poole does not deny that he
deferred his promotion in 1993 to remain on active duty, but insists that his promotion
eligibility date (September 22, 1992) determines his pay.
The trial court held that Army Regulation 135-155 (1994) determines pay from a
promotion’s effective date, and that this date differs from the eligibility date. Paragraph
4-19 of the regulation states: “The effective date of promotion is the date the officer is
eligible for pay and allowances.” For AGR officers like Poole, paragraph 4-19(d)
explains that “[a]n AGR officer who is not attached to a position in the higher grade will
be promoted effective on the date of reattachment to a higher graded position or the day
2009-5040 3
after release from AGR status” (emphases added). The preamble to paragraph 4-19
also states that “the latest date shown will be used to compute the date of promotion.”
These rules, like the conditions in Poole’s promotion letters, determine Poole’s effective
promotion date based on the date of his release from active duty. Therefore, the Army
correctly found that Poole’s eligibility for pay as a major began on November 1, 1996.
Poole uses other regulation language in paragraph 4-15(b) to argue that his
promotion eligibility date determines his pay. However, this argument ignores the
regulation’s distinction between eligibility and effective dates. Paragraph 4-15 defines
two other promotion-related dates—the “promotion eligibility date” (“PED”), and the
“date of rank” (“DOR”)—but states that these dates are used to determine “relative
seniority,” not pay and allowances. Moreover, while paragraph 4-19(d) states that “AGR
officers will be promoted effective on their PED,” this happens only “provided they are
attached to a position in the higher grade.” Poole was not attached to a position in a
higher grade during federal active duty, so his promotion’s effective date is not the
eligibility date, but the day after he left active duty.
Poole also contends that even though he deferred the promotion described in the
May 3, 1993 letter, he “still ha[s] the right to accept or delay” the promotion described in
the August 18, 1993 letter he received in 2005. This argument fails for at least two
reasons. First, Poole does not explain how he can accept the same rank increase (from
captain to major) twice. Second, both letters calculate the promotion’s “effective date”
in the same way—as the day after Poole left active duty. Either way, the effective date
can be no earlier than November 1, 1996.
2009-5040 4
For the foregoing reasons, the decision of the Court of Federal Claims is
affirmed.
2009-5040 5