Sixth Circuit Affirms Denial of Promotion for Air Force Judge Advocate Over Disputed Recommendation Form

Richard B. Reiter served in the Air Force from 1993 to 1998 and later joined the Air Force Reserves. In 2016, while serving as a Judge Advocate, Reiter was eligible for promotion. His Senior Rater, Lieutenant General Stayce Harris, submitted a Promotion Recommendation Form to the Air Force Reserve Line and Nonline Colonel Promotion Selection Board.

Reiter received a copy of the form in the mail that bore Harris’s signature and ranked him as the top candidate. However, the version submitted to the Promotion Board listed him as the second choice. The board did not select him for promotion.

Reiter petitioned the Air Force Board for Correction of Military Records, arguing the Air Force violated the Administrative Procedure Act by relying on an erroneous record. The Correction Board initially denied his request, noting he provided no documentation proving the version he received was the correct one.

Reiter filed a second request, attaching email exchanges and affidavits. In the emails, Harris explained that she was able to resolve right away that the correct Recommendation Form for Reiter listed him as the second choice. Looking through her own files, Harris located the signed Recommendation Form listing Reiter as the second choice for promotion and the signed Recommendation Form listing a different candidate as her first choice. Harris also stated that she had no idea how Reiter received what he shares is her signature on the Recommendation Form he states he received in the mail, calling the situation distressing.

The Correction Board subsequently ordered a Special Selection Board to convene, allowing Reiter to submit comments regarding his officer selection record. The Special Selection Board reviewed the record and again did not select Reiter for promotion.

Reiter retired as a Lieutenant Colonel in 2021. He filed suit in federal court, characterizing the denial as arbitrary and capricious. The district court adopted a magistrate judge’s recommendation granting judgment for the Secretary.

The Sixth Circuit affirmed, holding that the Correction Board’s decision was not arbitrary or capricious. The court noted that Congress grants the Secretary significant discretion to correct military records to remove injustice. The record contained sufficient evidence to support the agency’s factual determinations.