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An Army Reserve officer may have a chance to return to active duty because of an administrative error in proceedings leading to his discharge, a federal appeals court ruled recently.

In 1996, the Army's Active Duty Board told Donald Wagner, a reserve officer, that it was considering him for an involuntary release because he had been convicted by a court-martial the previous year of making false official statements and conduct unbecoming an officer. Several months later, the Active Duty Board decided to discharge Wagner under "other than honorable conditions."

Because of a miscommunication with the Army Reserve Personnel Center, the Active Duty Board only realized after deciding to discharge Wagner that he had completed 18 years of active federal service. Under Army regulations, the Army Secretary must grant the board permission to begin involuntary release proceedings for officers with tenures of 18 years or longer.

The Army attempted to fix its procedural mistake by having the assistant secretary for manpower and reserve affairs sign off on the board's decision retroactively. But Wagner challenged that move at the Army Board for Correction of Military Records, a statutory review board staffed by civilians.

Wagner argued his release was "contrary to law, arbitrary and capricious." The corrections board, however, found the procedural mistakes made by the Active Duty Board "harmless" because they did not change the outcome of the case. The Army Secretary would have approved of the dismissal if asked, the corrections board decided.

The Court of Federal Claims later upheld that decision, citing the assistant secretary's retroactive signature as evidence that the secretary would have likely signed off on the proceedings at the beginning, had the Active Duty Board known to ask.

But in an April 28 ruling, the Court of Appeals ruled that the boards cannot presume the secretary would have given permission to start Wagner's dismissal proceedings.

"Where the effect of an error on the outcome of a proceeding is unquantifiable . . . we will not speculate as to what the outcome might have been had the error not occurred," the appeals judges decided. "This is particularly true here, where a finding of harmlessness would require us to approximate the absolute discretion afforded the Secretary of the Army on personnel matters with a determination of our own."

Therefore, the Army illegally released Wagner, the appeals court ruled.

One judge dissented, noting that: "Even if the error in the charging decision were not harmless, the initiation of the charge was plainly ratified by the secretary in his final decision approving the appellant's release from active duty."

Donald L. Wagner v. United States, U.S. Court of Appeals for the Federal Circuit (03-5118), April 28, 2004

Shifting Gears

Park Police Chief Teresa Chambers is gearing up to take her case against the Interior Department to the next level this month, one of her lawyers said Thursday.

The now-suspended Chambers plans to take her case to the Merit Systems Protection Board and the Federal District Court for the District of Columbia, said Jeff Ruch, executive director of Public Employees for Environmental Responsibility, which is co-defending Chambers.

The police chief appealed to the Office of Special Counsel for relief after being placed on administrative leave in December for publicly saying that her agency faced budget and personnel shortfalls.

OSC is expected to make a decision by mid-month about whether Chambers should be reinstated while the merits of her case continue to be reviewed. However, Ruch said Chambers would be free to pursue individual action against Interior on May 31, which is 120 days after OSC opened its investigation.

According to Ruch, the chief can file an appeal with MSPB because she is a civil servant. He added that case law also allows a federal employee to pursue action in D.C. federal district court for a violation of First Amendment rights, provided the employee has exhausted his or her administration remedies, which for Chambers is the OSC case.

"The chief is sort of chomping at the bit to come back, and if not voluntarily pursuant to a settlement, then involuntarily pursuant to a court order," he said.

In the meantime, PEER has started a legal defense fund to finance Chambers' court battles. Called the Honest Chief Fund, the account can be accessed via PEER's Web site.

Ruch said about $2,000 was donated the first two days the fund started. PEER hopes to raise $20,000 by the end of the month, and Ruch estimated that $50,000 could ultimately be raised.

"The fund will be used for litigation related expenses," Ruch said. "In this case it will be attorney time, deposition transcripts -- and I have a feeling that we will be wrestling with paper."

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