¶1This military pay case, involving a release from active duty of a reserve Army officer for inadequate performance, comes before the court on defendant’s motion for summary judgment and plaintiffs opposition thereto. Oral argument was had and the case was then held pending the decision in Sanders v. United States, 219 Ct. Cl. 285, 594 F. 2d 804 (1979). After Sanders, the parties filed supplemental briefs on the bearing of the Sanders decision on the present case.
¶2Plaintiff, then an Army reserve officer serving on active duty, was honorably released from active duty (in June *9301973), on the ground of inadequate performance, by action of a Department of the Army Active Duty Board which met early in 1973. The officer’s claim in this court is that two of his Officer’s Efficiency Reports (both recent and both rating him unfavorably) were considered by the Active Duty Board but were defective and grossly inaccurate in substance, and that his procedural rights were also violated with respect to these OERs. He had an opportunity to reply in writing to the OERs but not until after the Active Duty Board had acted, and he alleges that even when he had a belated chance to reply in writing his opportunity to respond was necessarily hobbled.
¶3Sanders v. United States, supra,dealt with servicemen passed over by selection boards, and for that reason separated from the service. We held "that a substantially complete and fair record is a necessary requirement of proper consideration by a selection board. … Regulations prescribe that OERs are to be objective and prepared in a certain way. If a particular officer’s OER has not been so prepared and that defect could have resulted in his nonselection for promotion followed by discharge, this is a legal and factual error and an injustice to the officer as well. If he is not made whole by correction of his record, we can and will protect the citizen-soldier’s legal rights if he is claiming lost pay and reinstatement.” 219 Ct. Cl. at 302-03, *931594 F. 2d at 814. But we also held that relief would not be available where the administrative error or injustice was harmless. 219 Ct. Cl. at 309-10, 594 F. 2d at 818.
¶4These same principles apply to reserve officers involuntarily relieved by an Army Active Duty Board from active duty for inadequate performance. The Army has established a specific procedure for such releases which must be respected. E.g., Service v. Dulles, 354 U.S. 363 (1957). The controlling regulation (AR 635-100, chapter 3, section xv, ¶ 3-58.a (1973)) required Army Headquarters to screen "officer records” annually "to determine those officers whose degree of efficiency and manner of performance require relief from active duty or elimination from the service.” "These records [i.e. the records of the officers so screened] will be forwarded, without recommendation, to the Department of the Army Active Duty Board, or other designated board, for consideration within the prescribed guidance and criteria.” In requiring that the Active Duty Board act on the basis of the servicemen’s official personnel records, the regulation impliedly assumed and demanded that those records be objective and without substantially harmful defect.
¶5In plaintiffs instance the Active Duty Board must have acted on the assumption (since there was nothing before it to indicate otherwise) that the now-challenged OERs were accurate and objective. Plaintiff has presented to us a detailed affidavit and other material (in response to the defendant’s motion for summary judgment) suggesting, on what appear to be non-frivolous and substantial grounds, that the two OERs were in fact seriously defective on substantive and procedural grounds. These issues have never been the subject of a trial or hearing. In the circumstances, we are of the view that the questions raised by plaintiff, especially his substantive contentions, call for a trial or hearing. It is preferable that if possible the further inquiry (by way of hearing or trial) take place within the military system.
¶6*932Accordingly, defendant’s motion for summary judgment is denied without prejudice and the case will be remanded under Rule 149 to the Secretary of the Army for a hearing on the issues raised in this court by plaintiff, and for an initial determination in the light of the principles of Sanders v. United States, supra.The Secretary may act through the Army Board for Correction of Military Records, the Army Active Duty Board, or some other tribunal he deems appropriate.
¶7IT IS SO ORDERED.
¶8 Plaintiffs appeals were denied by the Army (after the Active Duty Board had made its determination) on his written submissions, without according him a hearing. There is no indication that the Army personnel who denied plaintiffs appeals (prior to his application to the Correction Board) had authority to correct or void the OERs for lack of objectivity or gross inaccuracy.
¶9 This assumption is reinforced by subsequent amendments to the regulation (in 1978), which expressly gave the officer the right, before the Active Duty Board acts, first, to review all his records and all other written material before the Board, and, second, to submit appropriate written material for the Board’s consideration. AR 635-100, section xv, ¶ 3.58.b.l.
¶10 It has been suggested that Biddle v. United States, 186 Ct. Cl. 87, 95 (1968), forbids any consideration of this matter by the Correction Board, but Biddledealt with the different situation in which the Correction Board attempted to override an Active Duty Board determination favorable to the serviceperson. That the Correction Board does not view itself as powerless to correct denials of relief by the Active Duty Board is shown by its entertainment of plaintiffs prior application in this very case. However, we leave this issue of jurisdiction, as between the Active Duty Board and the Correction Board, to the Secretary.