Nancy Melendez Camilo v. United States

United States Court of Appeals
for the Federal Circuit
__________________________
NANCY MELENDEZ CAMILO,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-5069
__________________________
Appeal from the United States Court of Federal
Claims in case no. 09-CV-183, Judge Charles Lettow.
__________________________
Decided: April 29, 2011
__________________________
M ICHAEL D.J. EISENBERG , Law Office of Michael D.J.
Eisenberg, of Washington, DC, arguerd for plaintiff-
appellant.
JESSICA R. TOPLIN , Trial Attorney, Commercial Litiga-
tion Branch, United States Department of Justice, of
Washington, DC, argued for defendant-appellee. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. D AVIDSON , Director, and DONALD E.
K INNER, Assistant Director.
__________________________

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CAMILO v. US 2
Before NEWMAN , CLEVENGER, and LINN , Circuit Judges.
CLEVENGER , Circuit Judge.
Nancy Melendez Camilo (“Ms. Melendez Camilo”) ap-
peals the judgment of the Court of Federal Claims grant-
ing the government’s motion for judgment upon the
administrative record on the grounds that Ms. Melendez
Camilo failed to present substantial evidence that the Air
Force Board for Correction of Military Records (“Correc-
tion Board”) was prejudiced against her, or that its deci-
sion denying her request for correction of her military
records was otherwise arbitrary and capricious. Melendez
Camilo v. United States, 89 Fed. Cl. 671 (2009). Because
the Court of Federal Claims correctly granted the gov-
ernment’s motion, we affirm.
I
Ms. Melendez Camilo commenced active duty military
service in the United States Air Force (“USAF”) on March
18, 1979. On October 5, 1981, she was promoted to the
rank of captain. In 1987 and again in 1988, Ms. Melendez
Camilo was considered but not selected for promotion to
the rank of major. As a result of her failure to be selected
for promotion in 1987 and 1988, the USAF discharged Ms.
Melendez Camilo from active duty on January 31, 1989,1
and assigned her to the Inactive Status List Reserve
Section, effective on February 1 of that year.
On March 12, 1988, Ms. Melendez Camilo applied to
the Correction Board requesting that it remove from her
1 A captain or major of the USAF who twice fails se-
lection for promotion to the next higher grade and whose
name does not appear on a list of officers recommended
for promotion to the next higher grade is either dis-
charged or, if she is eligible for retirement, involuntarily
retired. See 10 U.S.C. § 632.

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CAMILO v. US 3
records the Officer Effectiveness Report (“OER”) for the
period from June 16, 1984 through January 31, 1985. Ms.
Melendez Camilo contended that her failure to be selected
for promotion to the rank of major was due to the OER
(the “contested OER”). More specifically, she contended
that the contested OER did not “reflect an accurate as-
sessment of her job performance and officer potential
during th[e] period.” While the contested OER was oth-
erwise positive, the rater and endorser awarded Ms.
Melendez Camilo a three in evaluation of potential,
because she was rated below standard in planning and
organizing work. The low rating for planning and orga-
nizing work was apparently due to confusion over
whether Ms. Melendez Camilo, as squadron section
commander, or a first sergeant, bore responsibility for
correcting seriously disorganized orderly room adminis-
trative areas. Ms. Melendez Camilo had briefed the
squadron commander on the need to resolve the matter,
but the squadron commander took no action to clarify the
relevant responsibilities. Ms. Melendez Camilo’s squad-
ron commander supported her request to void the con-
tested OER, concluding that the situation that led to the
low rating for planning and organizing work was beyond
Ms. Melendez Camilo’s control, and therefore not a sound
basis for her substandard rating. The Correction Board
agreed and recommended, inter alia, that the Deputy for
Air Force Review Boards (“Deputy”) void the contested
OER and remove it from Ms. Melendez Camilo’s records.
On June 9, 1989, after Ms. Melendez Camilo had
separated from active duty, the Deputy accepted the
Correction Board’s recommendation to void the contested
OER and remove it from her records, as well as consider
her for promotion to major by a Special Selection Board
(“SSB”). The SSB met to reconsider Ms. Melendez

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CAMILO v. US 4
Camilo’s records in November 1989 and did not select her
for promotion to major.
After Ms. Melendez Camilo had filed several requests
for reconsideration with the Correction Board seeking a
direct promotion to the rank of major, the Correction
Board concluded that she had presented sufficient evi-
dence of error and recommended partial relief. Specifi-
cally, the Correction Board recommended that Ms.
Melendez Camilo’s records be corrected to reflect that: (a)
she was tendered a Regular USAF appointment and, upon
Senate confirmation, she accepted the appointment,
effective December 18, 1985; (b) she was considered and
selected for promotion to the grade of major by the Calen-
dar Year 1987 Central Major Selection Board and, upon
Senate confirmation, she was given an appropriate effec-
tive date and rank; (c) the OER rendered for the period of
December 18, 1986 through December 17, 1987 be de-
clared void and removed from her records;2 and (d) she
was not released from extended active duty on January
31, 1989, but continued on extended active duty and was
ordered a Permanent Change of Station to her home of
record. Further, the Correction Board recommended: “if
[Ms. Melendez Camilo] was considered and nonselected
for promotion to the grade of lieutenant colonel by a
regularly scheduled promotion board prior to receiving
two current Officer Performance Reports in the grade of
major, her nonselection(s) be declared void.”
2 In making its recommendation, the Correction
Board noted that the contested OER, which “place[d] [Ms.
Melendez Camilo] in the bottom 5% of her peers, did have
an effect on subsequent [OERs].” More specifically, the
contested OER “hindered” Ms. Melendez Camilo’s job
opportunities and endorsement levels on subsequent
OERs and, in particular, the OER bearing December 17,
1987 as its closing date.

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CAMILO v. US 5
On May 15, 1995, the Deputy accepted the Correction
Board’s recommendation. On August 15, 1995, the USAF
reinstated Ms. Melendez Camilo to active duty and pro-
moted her to major, with a date of rank of September 1,
1988.
Upon returning to active duty, Ms. Melendez Camilo
was assigned to Langley Air Force Base in Virginia where
she worked as Chief of Communications and Information
Manpower Organization. She received one Officer Per-
formance Report (“OPR”) while in this position—her first
OPR as a major.
For her next assignment, Ms. Melendez Camilo
worked at Air Force Reserve Officers’ Training Corps
(“AFROTC”) Detachment 755 in San Juan, Puerto Rico as
Assistant Professor of Aerospace Studies. During this
assignment, Ms. Melendez Camilo discovered and re-
ported violations of AFROTC standards committed by
leadership of the detachment, including her commander,
which resulted in those implicated in wrongdoing being
relieved of their duties. Prior to his removal, Ms.
Melendez Camilo’s detachment commander, Lieutenant
Colonel Ramos, wrote two of her OPRs (the “Ramos
OPRs”), one of which was the second OPR she received as
a major. While still at this assignment, after having
received two OPRs at the rank of major, Ms. Melendez
Camilo was considered but not selected for promotion to
the rank of lieutenant colonel.
Ms. Melendez Camilo’s final active duty assignment
in the USAF was at Maxwell Air Force Base in Alabama
where she worked as Director of Information Manage-
ment. During her time at Maxwell, Ms. Melendez Camilo
was considered but not selected for promotion to lieuten-
ant colonel once in 2000 and once again in 2001.

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CAMILO v. US 6
On February 22, 2002, Ms. Melendez Camilo applied
to the Correction Board for relief, specifically seeking a
direct promotion to the rank of lieutenant colonel on the
primary ground that her seven-year break in service
denied her the opportunity to develop a record of perform-
ance which would support her promotion. Ms. Melendez
Camilo also raised the fact that Lieutenant Colonel
Ramos at AFROTC prepared her second eligible OPR as a
major before she met with the promotion board and “[n]ot
surprisingly, given [Lieutenant Colonel Ramos’s] hostility
towards [her],” she was nonselected for promotion.
After consideration, the Correction Board concluded
that Ms. Melendez Camilo had not presented sufficient
evidence of material error or injustice. The Correction
Board explained that its prior recommendations, specifi-
cally those implemented based upon its decision of May
15, 1995, had provided Ms. Melendez Camilo with “an
opportunity to compete for promotion on a fair and equi-
table basis.” The Correction Board observed that
“[p]romotion to the grade of lieutenant colonel is very
competitive,” and “officers must compete for promotion
under the whole person concept whereby many factors are
carefully assessed by selection boards.” In effect, the
Correction Board denied relief because Ms. Melendez
Camilo failed to provide persuasive evidence that she
would have been selected for promotion to lieutenant
colonel but for the interruption of her career.
On March 31, 2003, Ms. Melendez Camilo was invol-
untarily retired from the USAF for failure to be selected
for promotion to lieutenant colonel. See 10 U.S.C. § 632.
At the time of her retirement, she had served 25 years, 7
months, and 9 days in the USAF.
Ms. Melendez Camilo filed a complaint with the Court
of Federal Claims on March 24, 2009, in which she

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CAMILO v. US 7
averred that her retirement from the USAF and the
Correction Board’s decision to deny her request for correc-
tion of her records and immediate promotion to the grade
of lieutenant colonel were arbitrary and capricious. The
government moved for judgment on the administrative
record. In opposing the government’s motion, Ms.
Melendez Camilo contended that the Correction Board
was “prejudiced against her because of her time of leave
from the military” when it issued its decision denying her
relief.
The Court of Federal Claims granted the govern-
ment’s motion, finding that the Correction Board thor-
oughly considered Ms. Melendez Camilo’s break in
service. The Court of Federal Claims further concluded
that Ms. Melendez Camilo failed to present substantial
evidence that the Correction Board was prejudiced
against her, or that its decision was otherwise arbitrary
and capricious. Ms. Melendez Camilo timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
II
This court reviews the trial court’s determination on
the legal issue of the government’s conduct, in a grant of
judgment upon the administrative record, without defer-
ence, applying the same standard of review that the Court
of Federal Claims applied. Barnes v. United States, 473
F.3d 1356, 1361 (Fed. Cir. 2007) (citing Chambers v.
United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005)).
Accordingly, the scope of our review for challenges to
military correction board decisions is “‘limited to deter-
mining whether a decision of the Correction Board is
arbitrary, capricious, unsupported by substantial evi-
dence, or contrary to applicable statutes and regulations.’”
Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir.
1983) (quoting de Cicco v. United States, 677 F.2d 66, 70

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CAMILO v. US 8
(Ct. Cl. 1982)). We will not reverse the trial court’s legal
conclusions unless incorrect as a matter of law, and will
not disturb its factual findings unless clearly erroneous.
Id. at 1158.
III
As this court has noted before, “when a military offi-
cer is involuntarily separated from active duty, or manda-
torily retired, for twice failing to be selected for
promotion, [s]he may apply for relief, pursuant to 10
U.S.C. § 1552(a), to the appropriate correction board.”
Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir.
2004). A correction board is made up of civilians, through
which the Secretary of a military department “may cor-
rect any military record . . . when the Secretary considers
it necessary to correct an error or remove an injustice.”
10 U.S.C. § 1552(a)(1).
When an officer presents the Correction Board with
an application for relief, the Correction Board must
determine “whether the applicant has demonstrated the
existence of a material error or injustice that can be
remedied effectively through correction of the applicant’s
military record and, if so, what corrections are needed to
provide full and effective relief.” 32 C.F.R. § 865.4(h)(4).
“When a correction board fails to correct an injustice
clearly presented in the record before it, it is acting in
violation of its mandate.” Roth, 378 F.3d at 1381 (quoting
Yee v. United States, 206 Ct. Cl. 388, 512 F.2d 1383, 1387
(1975)).
Before this court, Ms. Melendez Camilo repeats her
argument that the Correction Board failed to account for
the prejudice against her promotion chances due to the
seven-year gap in her service, but describes as the “crux”
of her argument prejudice she associates with the Ramos
OPRs. Ms. Melendez Camilo argues that the lack of any

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CAMILO v. US 9
specific findings by the Correction Board regarding the
effect of the Ramos OPRs demonstrates that the Correc-
tion Board “entirely failed to consider an important aspect
of the problem” and correct an injustice she presented.
We disagree.
Ms. Melendez Camilo raised the issue of the Ramos
OPRs with both the Correction Board and the Court of
Federal Claims.3 The issue, therefore, is properly before
this court. We understand Ms. Melendez Camilo’s argu-
ment regarding the Ramos OPRs, but find it unpersua-
sive. We presume that actions taken by the Correction
Board are valid, and the burden is upon the complainant
to show otherwise. Cooper v. United States, 203 Ct. Cl.
300, 304 (1973). We further presume that the Correction
Board performed its function according to the regulations
and considered all of Ms. Melendez Camilo’s records. See
Armstrong v. United States, 205 Ct. Cl. 754, 756 (1974);
see also Plant Genetic Sys., N.V. v. DeKalb Genetics Corp.,
315 F.3d 1335, 1343 (Fed. Cir. 2003) (“We presume that a
fact finder reviews all the evidence presented unless he
explicitly expresses otherwise.”). In other words, an
administrative board’s or trial court’s failure to mention
3 In her statement to the Correction Board, Ms.
Melendez Camilo discussed her whistleblowing activities
at AFROTC that resulted in Lieutenant Colonel Ramos’s
removal. She also noted that Lieutenant Colonel Ramos
prepared her 1998 OPR prior to his removal, and that the
1998 OPR was her second OPR as a major, making her
eligible to meet the lieutenant colonel’s promotion board.
Ms. Melendez Camilo further explained to the Correction
Board, “[n]ot surprisingly, given [Lieutenant Colonel
Ramos’s] hostility towards me, I was then nonselected for
promotion to Lieutenant Colonel in March 1999.” The
Correction Board recognized the issue in the part of its
decision discussing and relying on the Air Force Personnel
Center evaluation.

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CAMILO v. US 10
specific evidence does not mean, as Ms. Melendez Camilo
contends, that it failed to consider that evidence. See
FMC Corp. v. Hennessy Indus., Inc., 836 F.2d 521, 524
(Fed. Cir. 1987). Thus, the Correction Board’s failure to
specifically mention the Ramos OPRs in its decision does
not mean that it failed to consider them.
In the present case, the Correction Board reached its
decision after it thoroughly reviewed Ms. Melendez
Camilo’s complete submission, which included the Ramos
OPRs and her arguments regarding their impact on her
promotion, and noted her contentions. Further, the
Correction Board relied on the recommendation of the Air
Force Personnel Center which, as Ms. Melendez Camilo
points out in her reply brief, specifically mentioned that
Lieutenant Colonel Ramos, upon whom she blew the
whistle, wrote her second OPR as a major. It is clear that
the Ramos OPRs were before the Correction Board. The
fact that the Correction Board did not specifically discuss
the Ramos OPRs or their alleged impact on Ms. Melendez
Camilo’s promotion is insufficient to overcome the pre-
sumption that the Correction Board considered the evi-
dence and Ms. Melendez Camilo points to nothing in the
record to the contrary.4
4 The overwhelming majority of Ms. Melendez
Camilo’s submissions to the Correction Board related to
her seven-year gap in service. Indeed, although Ms.
Melendez Camilo submitted an expanded statement,
talking papers, questions and answers, letters from her
senior raters and all of her OPRs, she devoted only one
paragraph to her discussion of the Ramos OPRs. That
paragraph implied but did not explicitly state a connec-
tion between the Ramos OPRs and her nonselection to
lieutenant colonel. Given the amount of evidence and
argument Ms. Melendez Camilo presented regarding her
gap in service, it is not surprising that the Correction
Board’s decision predominantly focuses on that issue and

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CAMILO v. US 11
The Ramos OPRs contained only positive comments in
great volume, describing Ms. Melendez Camilo as: “Top
manager,” “Outstanding leader[],” “Innovator,” “Excep-
tionally efficient,” “Excellent teaching skills,” “Dedicated
officer,” and “Instrumental in the reorganization of the
new temporary facility.” All that is missing from the
Ramos OPRs to make them even more positive is a “pro-
mote now” recommendation. While Ms. Melendez Camilo
makes much of the fact that the Ramos OPRs do not
include the “promote now” language, which she contends
is required for a promotion to the next rank, the record
evidence shows that none of the OPRs she received after
her reinstatement to active duty (from 1996 through
2001) contain the “promote now” language that she claims
is necessary for advancement. Even Ms. Melendez
Camilo’s senior raters, who wrote letters on her behalf to
the Correction Board, stated that they could not give her
a “definitely promote” or “promote now” recommendation
due to her seven-year break in service. According to one
rater, giving Ms. Melendez Camilo a “definitely promote”
recommendation “would have been unfair to the other
officers in her year group who are under my command
who have stronger records.” Thus, the absence of a “pro-
mote now” recommendation in the Ramos OPRs is consis-
tent with the positive recommendations that Ms.
Melendez Camilo’s other raters provided and insufficient
to demonstrate prejudice against her. Accordingly, Ms.
Melendez Camilo has failed to meet her burden of show-
ing that the Correction Board’s decision was arbitrary and
capricious or in violation of its mandate.
does not discuss in detail Ms. Melendez Camilo’s conten-
tions regarding the Ramos OPRs.

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CAMILO v. US 12
IV
For the foregoing reasons, we affirm the judgment of
the Court of Federal Claims.
AFFIRMED
COSTS
No costs.

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