       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 KEITH L. KELLER,
                  Plaintiff-Appellant,

                           v.

                  UNITED STATES,
                  Defendant-Appellee.
                ______________________

                      2014-5051
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:03-cv-02752-LJB, Judge Lynn J. Bush.
                 ______________________

                 Decided: May 8, 2014
                ______________________

   KEITH L. KELLER, of Pine Ridge, South Dakota, pro se.

    DOUGLAS K. MICKLE, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, BRYANT G. SNEE, Acting
Director, and DEBORAH A. BYNUM, Assistant Director. Of
counsel on the brief was TODI S. CARNES, Attorney, Mili-
tary Personnel Branch, Air Force Legal Operations Agen-
2                                             KELLER   v. US



cy, United States Air Force, Joint Base Andrews, Mary-
land.
                ______________________

    Before LOURIE, CLEVENGER, and REYNA, Circuit Judges.
PER CURIAM.
    Keith L. Keller appeals from the 2013 final decision of
the United States Court of Federal Claims dismissing his
second amended complaint with prejudice. The court’s
decision denied Dr. Keller’s claims seeking reinstatement
into the Air Force and retroactive promotions. Keller v.
United States, No. 03-2752 (Fed. Cl. Dec. 6, 2013). Be-
cause the Court of Federal Claims correctly analyzed Dr.
Keller’s claims and we see no clear error in the court’s
findings of fact, we affirm.
                       BACKGROUND
    Dr. Keller served in the Air Force as an active duty
reserve officer from January 1996 until November 1997. A
physician with over a decade of experience in private
practice, Dr. Keller served with the rank of Major as an
obstetrician and gynecologist at Grand Forks Air Force
Base in North Dakota.
     Dr. Keller’s first annual performance review began in
August 1996. In the course of this review, the reviewing
officers learned of several complaints against Dr. Keller
arising from failures to follow sanitary procedures, fail-
ures to diagnose common conditions, failures to remove
gauze and sponges from patients, and inappropriate
prescriptions. The reviewing officers subsequently com-
pleted an Officer Performance Report (“OPR”) for 1996
indicating that Dr. Keller had exhibited substandard
performance of his duties. A Promotion Recommendation
Form (“PRF”) completed for the same review period
recommended that Dr. Keller not be promoted. After
considering the OPR, the Central Medical Corps Selection
KELLER   v. US                                          3



Board (“Selection Board”) on November 12, 1996 declined
to promote Dr. Keller to the rank of Lieutenant Colonel.
    In April 1997, the Air Force initiated involuntary ad-
ministrative discharge proceedings against Dr. Keller
based on his substandard performance in 1996. Dr. Keller
requested voluntary discharge in June 1997, but in Octo-
ber asked to withdraw this request. Dr. Keller’s second
yearly review was held shortly after the withdrawal
request, and although his second OPR was more positive
than the first, the corresponding PRF again recommended
that Dr. Keller not be promoted. On November 5, 1997 the
Selection Board again declined to promote Dr. Keller.
Under applicable laws and regulations, the consequence
of this second non-selection was Dr. Keller’s mandatory
separation from the Air Force no later than June 30,
1998.
    The Secretary of the Air Force accepted Dr. Keller’s
June 1997 request for voluntary discharge on November
17, 1997. Although the Secretary ordered this discharge
to be held in abeyance on November 25, 1997—
presumably because of Dr. Keller’s attempted withdrawal
of his request for voluntary discharge—Dr. Keller was
discharged the next day, November 26.
    Dr. Keller filed a complaint with the Air Force Board
for Correction of Military Records (“Board”) in October
1999, requesting reinstatement to active duty. In October
2001, the Board found that Dr. Keller was improperly
discharged on November 26, 1997 because of an internal
miscommunication about the Secretarial abeyance action.
The Board constructively extended Dr. Keller’s date of
separation to June 30, 1998, the date upon which Dr.
Keller would have been mandatorily separated due to his
second non-selection for promotion or continuation. The
Board denied any additional relief to Dr. Keller, however,
finding that no further “error or injustice” beyond the
miscommunicated abeyance action had occurred.
4                                              KELLER   v. US



    In November 2003, Dr. Keller appealed the decision of
the Board to the Court of Federal Claims. The parties
agreed that a remand to the Board would be helpful to
address new allegations raised by Dr. Keller on appeal.
The Board found that one of these new allegations—that
Dr. Keller had had insufficient time to respond to the two
negative PRFs—had merit. By way of relief, the Board in
October 2004 ordered new Selection Boards to be con-
vened to review Dr. Keller’s 1996 and 1997 performances.
    The new 1996 and 1997 Selection Boards met in No-
vember 2005, and each Board again declined to recom-
mend Dr. Keller for promotion. The new 1997 Board did
select Dr. Keller for a three-year continuation (from 1998
to 2001, with a constructive separation date in 2001),
however. The continuation was served constructively—Dr.
Keller did not return to active duty—and resulted in
approximately $160,000 in back pay and benefits for Dr.
Keller. The constructive continuation also resulted in
three additional Selection Board reviews for the construc-
tively served years 1998, 1999, and 2000.
    The Selection Boards for 1998 and 2000 were com-
posed of the same members and met on the same day in
November 2006. The 1999 Selection Board had a different
composition and met in May 2007. None of these Selection
Boards selected Dr. Keller for either promotion or contin-
uation. Based on his non-selection, the Air Force pro-
cessed Dr. Keller for a constructive separation date of
July 31, 2001.
    Following his non-selection for 1998 through 2000, Dr.
Keller filed an amended complaint with the Court of
Federal Claims. The Air Force filed motions to dismiss for
lack of jurisdiction and failure to state a claim, and moved
for judgment on the administrative record. While these
motions were pending, in December 2009 Dr. Keller
raised additional issues before the Board, and the parties
eventually agreed to stay proceedings in the Court of
KELLER   v. US                                           5



Federal Claims while the Board considered Dr. Keller’s
arguments.
    Dr. Keller’s 2009 petition to the Board raised several
arguments. He alleged that there were problems with (1)
the panel membership of the 2000 Selection Board; (2) the
PRFs before the 1998–2000 Selection Boards; (3) the Air
Force Forms 77 before the 1998–2000 Selection boards; (4)
his professional files; (5) the Officer Selection Briefs
before the 1998–2000 Selection boards; and (6) the OSRs
before the 1998–2000 Selection boards. He also argued
that his July 31, 2001 separation date was improper and
should be voided and that he should have been credited
with advancements during the period of his constructive
service. The Board rejected all of these arguments in April
2010.
     Dr. Keller filed a second amended complaint with the
Court of Federal Claims in October 2012, specifically
focusing on the composition of the 2000 Selection Board
and alleged problems with his PRFs and other documents
relied on by the 1998–2000 Selection Boards. That court
rejected Dr. Keller’s claims in a December 6, 2013 opinion
and order. In particular, the Court of Federal Claims
dismissed Dr. Keller’s request for promotion under Rule of
the Court of Federal Claims 12(b)(6) (“RCFC 12(b)(6)”) for
failure to state a claim on which relief could be granted.
The court further found no impropriety with the fact that
the 1998 and 2000 Selection Boards had identical compo-
sition because the Air Force has interpreted its regula-
tions prohibiting service by the same individuals on
“successive” boards as only prohibiting service on consecu-
tive-year boards. After a considered analysis, the court
also rejected each of Dr. Keller’s allegations of problems
with his personnel records, including the PRFs, OSRs,
and other records relied on by the 1998–2000 Selection
Boards. The court thus granted the Air Force’s motion for
judgment on the administrative record and denied Dr.
Keller’s motion for judgment on the administrative record.
6                                               KELLER    v. US



    Dr. Keller now appeals from the final decision of the
Court of Federal Claims. We have jurisdiction under 28
U.S.C. § 1295(a)(3). We review a decision dismissing a
complaint under RCFC 12(b)(6) de novo. We review a
decision for judgment on the administrative record de
novo, and review the trial court’s fact findings in this
regard for clear error. PAI Corp. v. United States, 614
F.3d 1347, 1351 (Fed. Cir. 2010).
                        DISCUSSION
                              I
     On appeal, Dr. Keller does not renew his argument
that the 2000 Selection Board was improperly constituted.
Nor does he directly claim, as he did below, that the PRFs
and OSRs contained improper and prejudicial information
and omissions. Instead, he argues that the Court of Fed-
eral Claims erred as evidenced by the following statement
in its findings of fact:
    In 2005, the [reconvened 1996 and 1997 Selection
    Boards (“SSBs”)] met but neither SSB selected Dr.
    Keller for promotion to lieutenant colonel. Howev-
    er, the 1997 SSB selected Dr. Keller for continua-
    tion. Selection for continuation appears to have
    presented Dr. Keller with three mutually exclu-
    sive choices: (1) submitting an application for con-
    tinuation by reinstatement to active duty; (2)
    agreeing to continuation via constructive service
    for the purpose of being considered for promotion
    (and continuation) by subsequent SSBs; or (3)
    abandoning continuation entirely, whether
    through active duty service or constructive ser-
    vice.
    It is undisputed that Dr. Keller chose continua-
    tion through constructive service.
Keller, No. 03-2752, at 5 (internal citations omitted).
KELLER   v. US                                            7



    According to Dr. Keller, this finding incorrectly im-
plies that the doctor, after being selected for a three-year
continuation in 2005 by the reconvened 1997 Selection
Board, had the choice to either immediately return to
active duty or serve his three-year continuation construc-
tively. Dr. Keller argues that he in fact had no such
choice, but was required to serve his three-year continua-
tion constructively while hoping for further continuations
or a promotion that would eventually allow him to return
to active duty.
    In support of this argument, Dr. Keller claims that
the Board informed him in March 2006 that he could
apply for reinstatement as a result of his three-year
continuation. Appellant’s Memorandum In Response To
Its Notice Of Submission Without Oral Argument (“Appel-
lant Memorandum”) 3. However, when Dr. Keller re-
quested additional details about the conditions of his
reinstatement via letter to the Air Force Personnel Center
(“AFPC”), the agency replied in June 2006 with details
about how this could occur. First—according to the
AFPC’s view, which was later confirmed by the Board—
Dr. Keller would have to accept his three-year construc-
tive continuation ending in 2001 and be reviewed by
Selection Boards for the years 1998, 1999, and 2000. If
one of these Boards selected him for promotion, he could
be reinstated via promotion. If none of these Boards
selected him for promotion but the 2000 Board neverthe-
less selected him for continuation, his constructive sepa-
ration date would be extended to 2004, and he would have
the opportunity to be reviewed by three additional Selec-
tion Boards for the years 2001, 2002, and 2003. Again, if
one of these Boards selected him for promotion, he could
be reinstated via promotion. If none of these Boards
selected him for promotion but the 2003 Board neverthe-
less selected him for continuation, his separation date
would be extended to 2007. At this point, because 2007
represented a date in the future beyond the present date
8                                              KELLER   v. US



of June 2006, he could apply to return to active duty.
Based on this explanation, Dr. Keller argues that contra-
ry to the Court of Federal Claims’ finding, in June 2006
before any of these Selection Boards had convened he
“had but one choice—either to accept or reject construc-
tive continuation as offered.” Appellant Memorandum 3.
    This alleged factual error by the Court of Federal
Claims was prejudicial, in Dr. Keller’s view, because
many of his arguments before that court alleged the
harmful nature of blank spaces on his personnel forms
resulting from his long hiatus from active duty. The
Board, as quoted by the Court of Federal Claims, explicit-
ly noted in this regard Dr. Keller’s choice not to pursue
reinstatement to active duty:
    we note the applicant was offered an opportunity
    to request reinstatement to active duty, but in-
    stead elected continuation and further SSB con-
    sideration. Thus it appears his actions contributed
    greatly to the predicament [in which] he now finds
    himself and is the primary reason he has not re-
    ceived the performance reports and clinical as-
    sessments he indicates are so critical to him
    receiving full and fair consideration for promo-
    tion/continuation.
Keller, No. 03-2752, at 21.
                              II
    In 2005, a newly constituted 1997 Selection Board,
although declining to select Dr. Keller for promotion,
selected him for a three-year continuation. The Court of
Federal Claims found that following this selection, Dr.
Keller could have pursued one of three options: (1) submit
an application for continuation by reinstatement to active
duty; (2) agree to continuation via constructive service; or
(3) abandon continuation entirely. Keller, No. 03-2752, at
5. Although Dr. Keller argues that the first option was
KELLER   v. US                                               9



illusory because reinstatement to active duty depended on
subsequent promotions or continuations that he did not
ultimately receive, what he fails to recognize is that
eventual reinstatement was an option immediately after
continuation and before the Selection Boards for 1998,
1999, and 2000 declined to either promote him or extend
his continuation beyond 2007. See, e.g., Administrative
Record at 623 (reporting the official results of the recon-
stituted 1997 Selection Board and stating that because of
his three-year continuation, Dr. Keller could, “if eligible . .
. submit an application to request reinstatement to active
duty . . . .”). Of course, the option to return to active duty
was eventually closed off to Dr. Keller after he had had
the opportunity to be reviewed by three additional Selec-
tion Boards and each one declined either to promote him
or select him for continuation. But we see no clear error in
the court’s finding that immediately after his selection for
continuation, the possibility of reinstatement remained
open.
    Even if we were to discern clear error in the Court of
Federal Claims’ findings of fact with regard to Dr. Keller’s
options at the time he selected constructive service—
which we do not—it is noteworthy that the court’s analy-
sis did not rely on this finding. After quoting the Board’s
statement that Dr. Keller had potentially “contributed to
his predicament” by selecting constructive service, the
court explained that although
    constructive service may be of limited benefit
    when service-members are later considered for
    promotion . . . [i]t does not follow . . . that a ser-
    vice-member who obtains constructive service
    from a corrections board has been the victim of in-
    justice merely because the government has not
    provided, in addition to relief in the form of con-
    structive service, fabricated supplementary ser-
    vice records to make that service-member’s
10                                             KELLER   v. US



     records appear to be more competitive for promo-
     tion or continuation.
Keller, No. 03-2752, at 21 (citing Tippett v. United States,
98 Fed. Cl. 171, 182 n.15, 184–85 (Fed. Cl. 2011)). Thus,
the court concluded that even if Dr. Keller was only
offered “relief in the form of constructive service” and did
not have the option to return to active duty, it “d[id] not
follow . . . that [he was] the victim of injustice.” Id. We
agree with the court’s analysis.
     Finally, we note that Dr. Keller does not articulate
any remedy this Court can provide in response to the
alleged error. Dr. Keller argues that the Board should
have either promoted him or extended his date of separa-
tion to July 2007 so that he could return to active duty.
Appellant Memorandum 3–4. He requests, as he request-
ed below, that we remand to the Secretary of the Air
Force with instructions that he be returned to the active-
duty list and credited with “all back pay, special pay, and
allowances.” Appellant Br. 2. As Dr. Keller himself con-
cedes, this remedy would require his promotion to the
rank of Lieutenant Colonel. Appellant Memorandum 3–4.
But the Court of Federal Claims correctly found that it
“lacked the authority to order one of the service branches
to promote one of its members,” and dismissed Dr. Kel-
ler’s request for failure to state a claim on which relief
could be granted. Keller, No. 03-2752, at 10. We likewise
lack the authority to grant the relief that Dr. Keller
requests because courts do not have the expertise re-
quired to make promotion and retention decisions. Fluel-
len v. United States, 225 F.3d 1298, 1304 (Fed. Cir. 2000);
Adkins v. United States, 68 F.3d 1317, 1323–1324 (Fed.
Cir. 1995).
                       CONCLUSION
    For the reasons provided above, we affirm the final
decision of the United States Court of Federal Claims.
KELLER   v. US                           11



                      AFFIRMED
                         COSTS
   Each side shall bear its own costs.
