These are comparatively rare cases. See, e. g., Doggett v. United States, 207 Ct.Cl. 478, 483 (1975); Skaradowski v. United States, 471 F.2d 627, 200 Ct.Cl. 488 (1973); Hertzog v. United States, supra; Prince v. United States, 119 F. Supp. 421, 127 Ct.Cl. 612 (1954). Perhaps they are infrequent because the proof must overcome the strong, but rebuttable, presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith.

And such a violation, contrary to the evidence, is arbitrary and capricious. See Skaradowski v. United States, 471 F.2d 627, 200 Ct.Cl. 488 (1973); Duhon v. United States, 461 F.2d 1278, 198 Ct.Cl. 564 (1972). In Skaradowski, supra, we emphatically stated:

Furthermore, the Court seeks to correct what it perceives as a grave injustice to LTG Thompson, a man who served his country honorably for 36 years. Courts, in particular the Court of Claims, have not hesitated to afford relief where it serves, as it does here, to right an obvious injustice. Skaradowski v. United States, 471 F.2d 627, 632 (Ct.Cl.1973); Norcross v. United States, 142 Ct.Cl. 763, 767 (1958); Stillman v. United States, 116 F.Supp. 622, 624 (Ct.Cl.1953). The law is replete with decisions holding “that done which ought to have been done.”

Although plaintiffs acknowledge that they did not enter into a conservation security contract with the NRCS, plaintiffs nonetheless contend that they have been denied a vested right because "the law considers done that which ought to have been done." Pls.' Resp. at 41 (citing Antonious v. Spalding Evenflo Co., 281 F.3d 1258 (Fed. Cir. 2002); Skaradowski v. United States, 471 F.2d 627 (Ct. Cl. 1973); Diamond v. United States, 176 Ct. Cl. 1103 (1966)). While the court notes the utility of that equitable maxim when it is necessary to "right an obvious injustice[,]" see Skaradowski, 471 F.2d at 632, its use would be wholly inappropriate in this case.

Mr. Pipes cites several non-binding cases and one case from one of our predecessor courts in support of his argument. Crucially, none of Mr. Pipes's cases address whether a lawful order to perform some activity automatically places a service member in duty status despite a lack of required preauthorization for such status. In Skaradowski v. United States, 471 F.2d 627, 629 (Ct. Cl. 1973) (per curiam), for example, a member of the Army Active Reserve was ordered in writing to active duty for training for a defined duration "unless . . . extended by proper authority." The Army Board for the Correction of Military Records

According to the court, such cases of abuse are comparatively rare, "because the proof must overcome the strong, but rebuttable, presumption that the administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith." Id. (citing Doggett v. United States, 207 Ct. Cl. 478, 483 (1975); Skaradowski v. United States, 471 F.2d 627 (Ct.Cl. 1973); Hertzog v. United States, 167 Ct. Cl. 377 (1964); Prince v. United States, 119 F. Supp. 421 (Ct.Cl. 1954)). Because Sanders had been passed over subsequently on a record that omitted the erroneous OERs, and discharged, the government argued that Sanders could not prevail unless he could show that he would or probably would have been selected "but for" the errors in his record.

III 1979). As demonstrated by the Sanders opinion, that court has not hesitated to review the actions of those boards under an arbitrary and capricious standard. See, e. g., Skinner v. United States, 594 F.2d 824 (Ct.Cl. 1979); Yee v. United States, 512 F.2d 1383 (Ct.Cl. 1975); Skaradowski v. United States, 471 F.2d 627 (Ct.Cl. 1973). Similarly the Court of Appeals for the District of Columbia, in Matlovich v. Secretary of the Air Force, 591 F.2d 852 (D.C.Cir. 1978), declared its power to determine whether the action of the Air Force Correction Board in refusing to overturn the discharge of an admittedly homosexual officer constituted an abuse of discretion.

See also Borgford v. United States, supra; Reale v. United States, 208 Ct.Cl. 1010, cert. denied, 429 U.S. 854, 97 S.Ct. 148, 50 L.Ed.2d 129 (1976); Jordan v. United States, supra; Lewicki v. United States, 204 Ct.Cl. 1 (1974); Skaradowski v. United States, 471 F.2d 627, 200 Ct.Cl. 488 (1973); Kaeserman v. United States, 202 Ct.Cl. 1081 (1973); Duhon v. United States, 461 F.2d 1278, 198 Ct.Cl. 564 (1972); Stephens v. United States, 358 F.2d 951, 174 Ct.Cl. 365 (1966). "The fact that this court has the jurisdiction to review actions of military correction boards is not disputable.

Simply put, plaintiff has not shown that the AFBCMR, in denying his application for change in the date of his promotion to Lieutenant Colonel, acted arbitrarily, capriciously, or against the substantial weight of the evidence. Compare Doggett v. United States, 207 Ct.Cl. 478, 483 (1975); with Yee v. United States, 512 F.2d 1383, 1387, 206 Ct.Cl. 388, 397 (1975); Skaradowski v. United States, 471 F.2d 627, 200 Ct.Cl. 488 (1973); Duhon v. United States, 461 F.2d 1278, 198 Ct.Cl. 564 (1972). In summary, in order for plaintiff to qualify for so-called "automatic" promotion, he had to meet the requirements of Chapter 23.

We encounter the same tendency of lawyers there as here, namely to focus on correcting error and forgetting all about removing injustice, without regard to what Congress might have done had it retained its original jurisdiction. See, e.g., Skaradowski v. United States, 471 F.2d 627, 200 Ct.Cl. ___ (decided January 18, 1973); and my comment on that case (concurring opinion) in Mayer v. United States, 201 Ct.Cl. ___ (decided March 16, 1973). There may be doubts about casting this kind of issue in a pseudo legalistic mold and assigning a part in it to an Article III court, but our role is only the traditional one of judicial review, and all we have to do is to consider the quasi-legislative duties and roles of the non-Article III factfinding bodies and take them into realistic account in arriving at our decisions.