Hirsch v. United States ( 2021 )

In the United States Court of Federal Claims
No. 19-236C
Filed: March 31, 2021
FOR PUBLICATION
JONATHAN R. HIRSCH,
Plaintiff,
v.
UNITED STATES,
Defendant.
Thomas A. Coulter, Whiteford, Taylor & Preston, LLP, Richmond, VA, for the plaintiff.
Richard P. Schroeder, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, Washington, D.C., Major Nicholas D. Morjal, U.S. Army Legal Services Agency, of
counsel, for the defendant.
MEMORANDUM OPINION
HERTLING, Judge
The plaintiff, Jonathan R. Hirsch, is a former United States Army Reserve (“USAR”)
officer in the Judge Advocate General’s Corps (“JAG Corps”) and was discharged from the U.S.
Army on June 1, 2016. He challenges a decision by the Army Board for Correction of Military
Records (“ABCMR”) to uphold his discharge and seeks correction of his military record and
backpay. He alleges that he was wrongfully discharged because the Army miscalculated his
mandatory removal date under 10 U.S.C. § 14507(a). Specifically, he argues that his service
during law school should have been excluded from the Army’s computation of the length of his
commissioned service under the statutory exclusion in 10 U.S.C. § 14706(a)(3). The ABCMR
found that the plaintiff is not eligible for that exclusion. The defendant, the United States, argues
that the ABCMR’s decision should be upheld because it is consistent with the statute. Both
parties agree that the plain language of the statutory exclusion under § 14706 is unambiguous but
disagree over how to read the text.
The parties have cross-moved for judgment on the administrative record under Rule 52.1
of the Rules of the Court of Federal Claims (“RCFC”). Because the statutory exclusion in
§ 14706(a)(3) does not apply to the plaintiff’s service during law school pursuant to § 14706(b),
the ABCMR’s decision to deny the plaintiff relief is consistent with the law. Accordingly, the
Court grants the defendant’s motion for judgment on the administrative record and denies the
plaintiff’s motion for judgment on the administrative record.
I. BACKGROUND
A. Legal Framework
A reserve officer holding the rank of lieutenant colonel in the Army must retire after
completing 28 years of commissioned service, if the officer is not on a list of officers
recommended for promotion to the next higher grade. See 10 U.S.C. § 14507(a). The “first day
of the month after the month in which the officer completes 28 years of commissioned service”
is referred to as the mandatory removal date. See id.Not all commissioned service is included when calculating whether a reserve officer at
the rank of lieutenant colonel has served 28 years. Section 14706 of Title 10 provides three
exclusions from the computation of commissioned service:
(a) For the purpose of this chapter and chapter 1407 of this title
[which includes 10 U.S.C. § 14507], a Reserve officer’s years of
service include all service of the officer as a commissioned officer
of a uniformed service other than the following:
(1) Service as a warrant officer.
(2) Constructive service.
(3) Service after appointment as a commissioned officer of a
reserve component while in a program of advanced
education to obtain the first professional degree required for
appointment, designation, or assignment to a professional
specialty, but only if that service occurs before the officer
commences initial service on active duty or initial service in
the Ready Reserve in the specialty that results from such a
degree.
(b) The exclusion under subsection (a)(3) does not apply to service
performed by an officer who previously served on active duty or
participated as a member of the Ready Reserve in other than a
student status for the period of service preceding the member’s
service in a student status.
(c) For purposes of subsection (a)(3), an officer shall be considered
to be in a professional specialty if the officer is appointed or
assigned to the Medical Corps, the Dental Corps, the Veterinary
Corps, the Medical Service Corps, the Nurse Corps, or the Army
Medical Specialists Corps or is designated as a chaplain or judge
advocate.
10 U.S.C. § 14706.
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B. Facts
The facts are not in dispute. The plaintiff served in the U.S. Army for approximately 28
years. From August 1984 to May 1988, the plaintiff was enrolled in the Reserve Officers’
Training Corps (“ROTC”) at Georgetown University. (ECF 1, ¶ 18.) He was commissioned as a
second lieutenant in the USAR on May 27, 1988. (Id. ¶ 20.) Between May 1988 and September
1992, he served as a transportation officer in various military statuses, including the Individual
Ready Reserve and on active duty. (Id. ¶¶ 21-22; see also ECF 1-1, Ex. 2.)
From September 1992 to May 1995, having completed his active-duty service required to
satisfy his ROTC obligation, the plaintiff attended law school at the Louisiana State University
Paul M. Hebert Law Center. (ECF 1, ¶¶ 23, 25.) While in law school, the plaintiff continued to
serve as a reserve officer. (Id. ¶ 24.) He ultimately applied to the JAG Corps and, after
graduation from law school, completed the JAG basic course. (Id. ¶¶ 26, 28.) He served in the
JAG Corps, in both active and reserve statuses, from September 1995 until May 31, 2016, at
which time, having attained the rank of lieutenant colonel, he was involuntarily retired pursuant
to 10 U.S.C. § 14507(a). (Id. ¶ 28.)
The three years that the plaintiff attended law school were included in the plaintiff’s total
commissioned service for the purpose of calculating the mandatory removal date. (See id.)
C. Procedural History
The plaintiff petitioned the ABCMR twice prior to his retirement, arguing that his
32 months of service during law school should be excluded from his total commissioned service
pursuant to 10 U.S.C. § 14706 when calculating his mandatory removal date. (See AR 4-15, 85-
90.1) The plaintiff requested that his mandatory retirement date be adjusted from June 1, 2016 to
June 1, 2019. (AR 4, 85.) In 2013 and, on reconsideration, in 2016, the ABCMR denied his
petitions. (AR 2, 84.)
On February 12, 2019, the plaintiff filed this complaint challenging the ABCMR’s 2013
and 2016 decisions. (ECF 1.) The plaintiff alleges that those ABCMR decisions are arbitrary,
capricious, rendered in bad faith, or contrary to the plain reading of 10 U.S.C. § 14706. (Id.
¶¶ 50-56.) The plaintiff seeks a correction of his military records, backpay, costs and expenses,
and declaratory relief. (Id., Prayer for Relief, (a)-(k).)
The plaintiff moved to supplement the administrative record with several documents, but
the Court denied that motion. Hirsch v. United States, 144 Fed. Cl. 55 (2019). The plaintiff
moved again to supplement the administrative record with an Army instructional briefing slide
that purported to reflect the Army’s own interpretation of the relevant statutory scheme. The
Court instead remanded the case to the ABCMR to review the new document and to determine in
the first instance its impact on the plaintiff’s claim. Hirsch v. United States, No. 19-236C,
1
Citations to the administrative record (ECF 8, supplemented by ECF 12, 36, and 46) are
denoted as “AR” with the pagination reflected in the record.
3
2019 WL 4316880 (Fed. Cl. Sept. 12, 2019). On remand, the ABCMR once again denied the
plaintiff relief but relied, in part, on the current version of DA Form 3725 (Army Reserve Status
and Address Verification), rather than the version of the form in effect during the relevant period
to support its decision. (See ECF 40.) As a result, on April 20, 2020, the Court again remanded
the matter to the ABCMR. (Id.)
On June 12, 2020, the ABCMR again denied the plaintiff’s request for relief. (AR 659-
72.) The ABCMR found that the plaintiff did not qualify for the exclusion under 10 U.S.C.
§ 14706(a)(3). (AR 667-68.) The ABCMR reasoned that the plaintiff’s service in the JAG
Corps occurred after he had completed his initial Army service both on active duty and in the
Ready Reserve. (AR 668.) The plaintiff had not requested and was not approved for advanced
education delay to attend law school, and he was not on military orders to attend law school.
(AR 668.) Even assuming the plaintiff’s DA Form 3725 had recorded his student status, the
ABCMR found that such a notation would not mandate the exclusion of the plaintiff’s service
during law school from the Army’s calculation of his mandatory removal date.2 (AR 668-69.)
The plaintiff was performing service, earning retirement points, and earning an income in the
USAR while attending law school. (AR 669.) For all these reasons, the ABCMR found that the
plaintiff’s service while attending law school—after his original active service and prior to his
commission as a JAG Corps officer—was properly included in his total commissioned service
for the calculation of his mandatory removal date. (Id.)
The parties have cross-moved for judgment on the administrative record. (ECF 50 & 57.)
Considering the ABCMR’s earlier decisions superseded, the plaintiff has challenged the
ABCMR’s June 2020 decision as arbitrary, capricious, or contrary to law. The matter has been
fully briefed, and the Court heard oral argument on March 11, 2021.
II. JURISDICTION AND STANDARD OF REVIEW
The Tucker Act, 28 U.S.C. § 1491, limits this court’s jurisdiction to causes of action
based on money-mandating statutes and regulations. Metz v. United States, 466 F.3d 991, 995-
98 (Fed. Cir. 2006). A statute is money-mandating when it is “reasonably amenable to the
reading that it mandates a right of recovery in damages.” United States v. White Mountain
Apache Tribe, 537 U.S. 465, 473 (2003). The Military Pay Act, 37 U.S.C. § 204, “serves as the
money-mandating statute applicable to military personnel claiming damages and ancillary relief
for wrongful discharge.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997).
Because the plaintiff’s claim arises under the Military Pay Act, the Court has jurisdiction to hear
this case.
In a motion for judgment on the administrative record pursuant to RCFC 52.1, the court’s
review is limited to the administrative record, and the court makes findings of fact as if it were
The ABCMR had to assume that the plaintiff’s DA Form 3725 had recorded the plaintiff’s
2
student status because the plaintiff’s actual DA Form 3725 had been lost. (ECF 37 at 2 n.1; see
also ECF 1-1, Ex. 1.)
4
conducting a trial on a paper record. See Bannum, Inc. v. United States, 404 F.3d 1346, 1354
(Fed. Cir. 2005); see also Young v. United States, 497 F. App’x 53, 58-59 (Fed. Cir. 2012) (per
curiam), cert. denied, 569 U.S. 964 (2013) (applying the Bannum standard of review to RCFC
52.1 motion involving a decision of a military records-correction board). The court must
determine whether a party has met its burden of proof based on the evidence contained within the
administrative record. Bannum, 404 F.3d at 1355. Genuine issues of material fact will not
foreclose judgment on the administrative record. Id. at 1356.
The court reviews decisions of military records-correction boards under the standards of
the Administrative Procedure Act (“APA”). Walls v. United States, 582 F.3d 1358, 1367 (Fed.
Cir. 2009); see 5 U.S.C. § 706 (establishing the scope of review under the APA). Under the
APA standard, the court must uphold a military records-correction board’s decision “unless it is
arbitrary, capricious, contrary to law, or unsupported by substantial evidence.” Barnick v. United
States, 591 F.3d 1372, 1377 (Fed. Cir. 2010).
In a case involving the interpretation of a statute, a court gives no deference to the
ABCMR’s statutory construction of an unambiguous statute and reviews the administrative
decision de novo to resolve the legal issue presented. See 5 U.S.C. § 706 (“To the extent
necessary to decision and when presented, the reviewing court shall decide all relevant questions
of law, interpret constitutional and statutory provisions, and determine the meaning or
applicability of the terms of an agency action.”); see also Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give effect to the unambiguously expressed
intent of Congress.”); Hawkins v. United States, 469 F.3d 993, 1000 (Fed. Cir. 2006) (“Statutory
construction is a matter of law that we review de novo.”). The issue presented in this case is
purely a legal one; no facts are in dispute. The sole issue for resolution is the meaning of
10 U.S.C. § 14706.
III. DISCUSSION
Both parties argue that the exclusion under 10 U.S.C. § 14706 is unambiguous, and that
the case accordingly can be decided by reference to that plain, unambiguous language. The
plaintiff argues that the ABCMR’s decision is arbitrary, capricious, or contrary to law, because it
misconstrued the statute’s plain language and relied on materials beyond the statute. The
defendant responds that the ABCMR’s decision is consistent with the statute and, thus, not
contrary to law.
The Court first turns to the text of § 14706 to determine whether the provision is in fact
unambiguous and then reviews the ABCMR’s decision.
A. 10 U.S.C. § 14706: Mandatory Removal Date Exclusion
When parties dispute a statute’s meaning, “a court’s proper starting point lies in a careful
examination of the ordinary meaning and structure of the law itself.” Food Mktg. Inst. v. Argus
Leader Media, 139 S. Ct. 2356, 2364 (2019). It is a “‘cardinal principle’ of interpretation that
courts ‘must give effect, if possible, to every clause and word of a statute.’” Loughrin v. United
5
States, 573 U.S. 351, 358 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 404 (2000) (citation
omitted)). Accordingly, courts “‘are hesitant to adopt an interpretation of a congressional
enactment which renders superfluous another portion of that same law.’” Republic of Sudan v.
Harrison, 139 S. Ct. 1048, 1058 (2019) (quoting Mackey v. Lanier Collection Agency & Serv.,
Inc., 486 U.S. 825, 837 (1988)).
For purposes of calculating an officer’s mandatory removal date under 10 U.S.C.
§ 14507(a), some commissioned service is excluded pursuant to 10 U.S.C. § 14706(a). As
relevant here, service while in a program of advanced education is excluded if it qualifies under
§ 14706(a)(3):
Service after appointment as a commissioned officer of a reserve
component while in a program of advanced education to obtain the
first professional degree required for appointment, designation, or
assignment to a professional specialty, but only if that service occurs
before the officer commences initial service on active duty or initial
service in the Ready Reserve in the specialty that results from such
a degree.
Id. § 14706(a)(3) (emphasis added). An officer who is designated as a judge advocate is in a
“professional specialty.” Id. § 14706(c).
Subsection (b), however, limits the scope of the exclusion under subsection (a)(3),
providing in full:
The exclusion under subsection (a)(3) does not apply to service
performed by an officer who previously served on active duty or
participated as a member of the Ready Reserve in other than a
student status for the period of service preceding the member’s
service in a student status.
10 U.S.C. § 14706(b) (emphasis added).
The parties do not dispute that the plaintiff attained a professional degree (i.e., a law
degree) required for designation to a professional specialty (i.e., as a judge advocate). They do
dispute, however, whether the final clause of subsection (a)(3) disqualifies the plaintiff from the
exclusion. If subsection (a)(3) applies, then the plaintiff should not have been subject to
mandatory removal because his law school service would not count towards his total years of
service. Even if the plaintiff’s service would be excluded under the terms of subsection (a)(3)
itself, the parties also dispute whether subsection (a)(3) does not apply to the plaintiff’s service
during law school pursuant to subsection (b)’s limitation on (a)(3).
1. 10 U.S.C. § 14706(a)(3)
The exclusion of certain service from the total service that counts toward a mandatory
removal date is contained in subsection (a)(3), but is limited by its final clause: “but only if that
service occurs before the officer commences initial service on active duty or initial service in the
6
Ready Reserve in the specialty that results from such a degree.” Id. § 14706(a)(3). The parties
disagree about the meaning of this text.
The ABCMR found that the plaintiff was not eligible for the exclusion under
subsection (a)(3). The ABCMR rested its decision, in part, on its interpretation of the final
clause, noting:
The applicant independently (i.e., not pursuant to military orders)
attended law school was [sic] after his initial service on active duty
and in the Ready Reserve as a commissioned USAR officer, not
before. His service in the [JAG Corps] specialty was after he had
completed initial service both on active duty and in the Ready
Reserve.
(AR 668.) The ABCMR found that the plaintiff’s reserve service while he attended law school
was properly included in his total commissioned service. (AR 669.)
As did the ABCMR, the defendant interprets the final clause of subsection (a)(3) to apply
the exclusion only to service by reserve officers who had not previously served on active duty or
in the Ready Reserve. (ECF 57 at 13.) The word “initial” in the final clause, the defendant
argues, requires the service in the professional specialty to be the officer’s “initial” service in the
Army. (Id. at 6.) On the defendant’s interpretation, the plaintiff is ineligible for the exclusion
because his initial service was as a transportation officer on active duty and in the Ready Reserve
prior to his service in the JAG Corps. (Id. at 6-7, 13.)
To show that an officer can be commissioned without initial service on active duty or in
the Ready Reserve, the defendant ties § 14706 to the ROTC program, in which an officer may
receive an educational delay. (Id. at 16-17.) When officers receive an educational delay for a
program of advanced education, “[t]heir service in the program occurs before they commence
initial service on active duty or in the Ready Reserve in the specialty that results from their
advanced degree.” (Id. at 16 (citing Army Reg. 601-25 ¶ 1-1 (Mar. 7, 1986)) (emphasis in
original).) See also 10 U.S.C. § 2108(d) (providing, upon the Secretary’s approval, a delay of a
member’s obligated service for graduate or professional study).
The defendant argues that Congress intended for § 14706(a)(3) to apply to ROTC-related
educational delay. The defendant notes that the ROTC statute uses the same phrase as § 14706.
(ECF 68 at 15.) The ROTC statute’s definitional provision refers to “students enrolled in an
advanced education program beyond the baccalaureate degree level” and § 14706 refers to a
“program of advanced education.” 10 U.S.C. §§ 2101(3), 14706(a)(3); see also id. § 2107(c)(2)
(“advanced education program”). For further support, the defendant points to evidence of
congressional intent; specifically, the defendant notes that Congress described the purpose of
§ 14706(a)(3) using the phrase “college student commissioning service status,” which is similar
to the language it used in statute to describe the ROTC program. (See ECF 57 at 20-21). See
also H.R. Rep. No. 106-301, at 730 (1999) (Conf. Rep.); 10 U.S.C. § 2102(a) (establishing
ROTC as a program to prepare selected students for commissioned service).
7
The text of § 14706(a)(3), however, is not limited to ROTC-related educational delay; the
statute contains no reference to the ROTC. The statute does not use the phrase, “college student
commissioning status,” as appears in the congressional reports. As the plaintiff notes, if
Congress had intended § 14706 to apply only in connection with the ROTC program, then it
could have drafted the statute that way. (ECF 62 at 8-9 (citing 10 U.S.C. § 14507(c)(1)
(providing explicit reference to ROTC in a similar Air Force statute).) Instead, subsection (b)
contains the phrase, “student status,” which does not appear to be found in any other provision of
Title 10. ROTC-related educational delays may have prompted Congress to enact § 14706(a)(3),
but the provision is not on its face limited to such instances. Based on the unambiguous text of
the statute, the Court rejects the defendant’s approach and finds that § 14706(a)(3) is not limited
to the ROTC program.
The plaintiff interprets the final clause of § 14706(a)(3) to limit the exclusion to officers
who have not previously served in the specialty that follows the course of advanced education.
(ECF 50 at 20.) The service in a program of advanced education, in other words, must occur
before the officer’s initial service in the specialty that results from such a degree. (Id.) The
defendant responds that the plaintiff’s proffered interpretation reads the word “initial” out of the
statute. (ECF 57 at 15.) On the plaintiff’s reading, however, the word “initial” refers to the
officer’s service in the specialty, rather than service in general, as the defendant has interpreted
the word. (ECF 62 at 11.) Although the defendant notes that service in the JAG Corps following
law school would always be initial service in the JAG Corps because such service requires a law
degree, the plaintiff admits that the JAG Corps is a bad example. (See ECF 57 at 15; ECF 62 at
11.) As an alternative example, the plaintiff notes that the final clause would prevent an officer
in the Medical Service Corps from shifting focus between medical specialties and excluding the
time spent seeking a different degree in a similar field. (ECF 62 at 11-12.) This reading, too,
seems strained. Dermatologists, for example, do not typically change focus mid-career and go
back to school to become neurologists. The plaintiff’s reading of the statute is plausible, but it is
dubious that Congress drafted the statute for the purpose of excluding professional education for
the handful of instances the plaintiff’s reading of the law would capture.
The Court appreciates the parties’ efforts to shed light on the meaning of
subsection (a)(3), and both parties have made logical arguments in support of the proposed
meaning of the statute each party advances. Both parties offer plausible readings of
subsection (a)(3). Although the Court finds neither party’s reading especially persuasive, the
Court need not resolve the dispute and determine the meaning of § 14706(a)(3). Even assuming
that the plaintiff’s interpretation is correct, he cannot recover because the statutory exclusion
does not apply to his service pursuant to subsection (b).
2. 10 U.S.C. § 14706(b)
a. Text
Subsection (b) of § 14706 provides the following limitation on subsection (a)(3):
The exclusion under subsection (a)(3) does not apply to service
performed by an officer who previously served on active duty or
8
participated as a member of the Ready Reserve in other than a
student status for the period of service preceding the member’s
service in a student status.
10 U.S.C. § 14706(b).
The ABCMR and the plaintiff interpret subsection (b) identically. The ABCMR found
that subsection (b) provides “that service on active duty or in the Ready Reserve as an officer
prior to the period of service addressed in subsection (a)(3) is NOT excluded from the
[mandatory removal date] calculation and would therefore not be subtracted from the [mandatory
removal date].” (AR 667 (capitalization in original).)
The plaintiff agrees that subsection (b) renders subsection (a)(3)’s exclusion inapplicable
to the service leading up to an officer’s enrollment in a program of advanced education. (ECF 50
at 20.) The plaintiff focuses on the final phrase, “for the period of service preceding the
member’s service in a student status,” in arguing that subsection (b) clarifies and limits the effect
of subsection (a)(3). (See ECF 62 at 14-15.) According to the plaintiff, the service described in
the first clause of subsection (b) refers to the service also described in the final phrase. (Id.)
Subsection (b), on this reading, renders (a)(3)’s exclusion inapplicable to “the period of service
preceding the member’s service in a student status.” See 10 U.S.C. § 14706(b).
The ABCMR’s and the plaintiff’s interpretation of § 14706(b) is consistent with the
Army’s instructional briefing slide that the plaintiff has submitted. In relevant part, the slide
explained that under subsection (b) “the officer’s Reserve commissioned service prior to entering
the advanced education program to become qualified in a special branch does count toward years
of service for [mandatory removal date] purposes.” (AR 742.)
Subsection (b), as the plaintiff describes it, ensures “that the only years excluded from an
officer’s [mandatory removal date] calculation are those years actually spent pursuing a
professional degree, not all of the years spent in service leading up to the officer’s enrollment in
that professional degree program.” (ECF 62 at 14 (emphasis omitted).) To illustrate the
plaintiff’s interpretation, consider the plaintiff’s service history. In the Individual Ready Reserve
and on active duty, the plaintiff served as a transportation officer for approximately four years
(May 1988 – September 1992) prior to attending law school. (ECF 1, ¶¶ 21, 22.) During law
school, he continued to serve as an officer in a USAR Troop Program Unit for approximately
three years (October 1992 – May 1995). (Id. ¶ 24.) The four years preceding his time in law
school would not be excluded from the plaintiff’s total commissioned service, but his service
during law school would be excluded. In other words, subsection (b) emphasizes that the
exclusion under (a)(3) does not reset the clock—that only the three years of service during law
school are excluded. (See ECF 72, Oral Arg. Tr., at 17.)
On the plaintiff’s interpretation, subsection (b) does not apply to the issue in this case
because it precludes only the plaintiff’s service before law school from being excluded from his
years of service. (ECF 62 at 17.) The plaintiff does not dispute that his service prior to law
school should be included to calculate his mandatory removal date. (Id.)
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The defendant’s interpretation of subsection (b) before the Court differs not only from the
plaintiff’s but also from the interpretation of the ABCMR and of the Army briefing slide.
According to the defendant, the plaintiff’s service before law school renders his service during
law school ineligible for subsection (a)(3)’s exclusion. The defendant now argues that,
notwithstanding the ABCMR’s interpretation, subsection (b) “controls the outcome of this case
as a matter of law” and renders § 14706(a)(3)’s exclusion inapplicable to service by an officer,
like the plaintiff, who has previously served on active duty or in the Ready Reserve in other than
student status before attending a program of advanced education. (ECF 68 at 4; ECF 57 at 6,
11.) As applied to this case, the defendant reads subsection (b) to mean that subsection (a)(3)’s
exclusion does not apply to the plaintiff’s service during law school because the plaintiff served
as a transportation officer after graduating from college and before attending law school.
The defendant rejects the plaintiff’s and the ABCMR’s interpretation of subsection (b),
noting that the ABCMR cannot bind the Court if the ABCMR decision relies on an incorrect
statement of law. (ECF 72, Oral Arg. Tr., at 39-40.) Regardless of the ABCMR’s reasons for its
interpretation, the defendant argues that the plaintiff’s claim must fail as a matter of law:
So -- and our view is that the [ABCMR] -- that interpretation [of (b)]
in the [ABCMR’s] latest decision is not the correct interpretation,
and this could even be akin to a motion to dismiss for failure to state
a claim on which relief is granted; that even if the [ABCMR]
somehow is wrong on (a)(3), (b) bars the Plaintiff from relief. And
so even if the [ABCMR]-stated reasons are incorrect, as a matter of
law Plaintiff’s claim must fail . . . .
(Id. at 40.) The defendant also argues that the Army’s instructional briefing slide is incomplete
and no longer used, and that an incomplete slide cannot supersede the meaning of the statute.
(Id. at 13-14; ECF 68 at 9.)
Regarding the statutory language itself, the defendant argues that the plaintiff’s proposed
interpretation ignores all the words of (b) between the word “service” at the beginning and the
phrase “service preceding the member’s service in a student status” at the end. (ECF 57 at 11-
12.) On the plaintiff’s reading, the defendant argues, subsection (b) would be entirely
superfluous because subsection (a)(3) already provides that the “exclusion is limited to ‘[s]ervice
after appointment . . . while in a program . . . .’” (Id. at 12 (quoting 10 U.S.C. § 14706(a)(3))
(modifications in original) (emphasis in original).) In other words, the plaintiff’s interpretation
makes no sense because subsection (a)(3) is specifically limited to the time while attending
professional school; there would be no reason to clarify that the exclusion does not apply to
service before attending professional school. (ECF 68 at 5-6.)
The Court finds that the defendant’s interpretation of subsection (b) is the most natural
reading, considering the grammatical structure of the provision. See Nielsen v. Preap, 139 S. Ct.
954, 965 (2019) (“Because ‘[w]ords are to be given the meaning that proper grammar and usage
would assign them,’ . . . the ‘rules of grammar govern’ statutory interpretation ‘unless they
contradict legislative intent or purpose’ . . . .” (internal citations omitted) (quoting Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012))).
10
Subsection (b) contains no punctuation indicating a break. It first provides that the
provision limits the exclusion found in subsection (a)(3): “The exclusion under subsection (a)(3)
does not apply to service performed by an officer . . . .” 10 U.S.C. § 14706(b). What follows is
a single restrictive relative clause modifying the noun “officer” and defining which officers
cannot exclude their service under subsection (a)(3): those “who previously served on active
duty or participated as a member of the Ready Reserve in other than a student status for the
period of service preceding the member’s service in a student status.” Id.; see also NACS v. Bd.
of Governors of Fed. Rsrv. Sys., 746 F.3d 474, 485 (D.C. Cir. 2014) (“descriptive clauses
explain, while restrictive clauses define”).3
The provision’s use of the passive voice is important. In the first clause, the word
“service” is used generally—there are no limiting modifiers, such as “previous.” What service is
precluded from (a)(3)’s exclusion? The service performed by an officer within the scope of the
restrictive relative clause. The word “service” in the first clause then is modified only by who
performs it. It is not about which period of service; it is about which officer performed the
service. Which officers cannot exclude their service under subsection (a)(3)? Officers “who
previously served on active duty or participated as a member of the Ready Reserve in other than
a student status for the period of service preceding the member’s service in a student status.”
10 U.S.C. § 14706(b). Back to the provision’s passive construction: the exclusion in (a)(3) does
not apply to service performed by the officers defined by the restrictive relative clause.
In this case, therefore, the exclusion in subsection (a)(3) does not apply to service
performed by the plaintiff, who previously served on active duty and in the Ready Reserve as a
transportation officer in other than student status for the period of service preceding his service
in a student status pursuing his law degree.
The plaintiff makes two arguments against the defendant’s interpretation, now adopted by
the Court. First, he argues that the defendant’s interpretation of subsection (a)(3) and
subsection (b) read together amount to the same limitation because each would render the
exclusion inapplicable to service by an officer who had served prior to attending professional
school. (ECF 62 at 6.) The defendant’s reading, the plaintiff argues, means that (b) is merely
surplusage to (a)(3), as interpreted by the defendant. Second, the plaintiff argues that the
defendant’s interpretation of subsection (b) deprives the phrase “period of service” used in that
subsection of any meaning, again rendering the defendant’s reading to produce surplusage. (Id.
at 15.) The Court disagrees.
First, if subsection (a)(3) means what the plaintiff claims (and what the Court has
assumed for the purpose of this decision), then there is no surplusage on the Court’s reading of
subsection (b). Subsection (a)(3) would require the officer’s initial service in the specialty to
3
“A relative clause is said to be restrictive if it provides information that is essential to the
meaning of the sentence. Restrictive relative clauses are usually introduced by that (or
who/whom/whose) and are never set off by commas from the rest of the sentence.” The Chicago
Manual of Style ¶ 6.22 (16th ed. 2010) (italics in original).
11
follow the program of advanced education, while (a)(3)’s exclusion does not apply, pursuant to
subsection (b), to service performed by officers who had served prior to that education. Even if
the defendant’s interpretation of subsection (a)(3)—that the officer’s service in the specialty
must be the officer’s initial service—were correct, subsection (b) would clarify the scope of the
exclusion.
Second, the Court’s interpretation of subsection (b) does not deprive the phrase “period
of service” of any meaning. The final phrase cannot carry the weight that the plaintiff places on
it. The phrase, “for the period of service preceding the member’s service in a student status,”
describes when officers must have previously served in other than a student status for (a)(3)’s
exclusion to be inapplicable to their service. In arguing that the service described in the first
clause refers to the service described in the final phrase, the plaintiff’s proposed reading of (b)
ignores the restrictive relative clause, the passive construction, and all the text between the word
“service” in the first clause and the word “service” in the final phrase. On the Court’s
interpretation, the plaintiff is correct that the final phrase could be deleted without changing the
meaning because the provision already uses the word “previously.” (See ECF 62 at 14-15.) The
phrase, however, is not inconsistent with the Court’s interpretation. It merely clarifies the timing
of the previous service described in the relative clause. This reading is not ideal, because it
produces repetitive meaning within the provision, but it is the most natural syntactical reading of
the language. See Barton v. Barr, 140 S. Ct. 1442, 1453 (2020) (“[R]edundancies are common
in statutory drafting—sometimes in a congressional effort to be doubly sure, sometimes because
of congressional inadvertence or lack of foresight, or sometimes simply because of the
shortcomings of human communication.”).
Pursuant to the most natural reading of the text of subsection (b), if an officer previously
served on active duty or participated as a member of the Ready Reserve in other than a student
status prior to attending a program of advanced education, then that officer cannot exclude his or
her service under (a)(3). Subsection (a)(3) does not apply to service performed by such an
officer.
b. Legislative History
A court’s interpretation of statutory language should consider only the actual text enacted
by the legislature, without resort to legislative history. See Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 568 (2005) (“the authoritative statement is the statutory text, not the
legislative history or any other extrinsic material”). Thus, the Court interprets § 14706 based on
its actual language. Nevertheless, a court may consider the legislative history of a statute to
ensure that it does not show a “clearly expressed legislative intention” contrary to the Court’s
interpretation of the statutory language. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12
(1987).
To support its proposed interpretation of the statute now adopted by the Court, the
defendant cites the legislative history that produced the current statutory text. The provision was
enacted in 1999 as part of the National Defense Authorization Act for Fiscal Year 2000, Pub. L.
No. 106-65, § 515, 113 Stat. 512 (1999).
12
Section 514 of the original House bill placed within the exclusion itself language similar
to the text Congress enacted as subsection (b):
(3) service after appointment as a commissioned officer of a Reserve
component while in a program of advanced education to obtain the
first professional degree required for appointment, designation, or
assignment as an officer in the Medical Corps, the Dental Corps, the
Veterinary Corps, the Medical Service Corps, the Nurse Corps, the
Army Medical Specialists Corps, or an officer designated as a
chaplain or judge advocate, provided such service occurs before the
officer commences initial service on active duty or initial service in
the Ready Reserve in the specialty that results from such a degree.
This exclusion does not apply to service performed by an officer who
previously served on active duty or participated as a member of the
Ready Reserve in other than a student status.
H.R. 1401, 106th Cong. § 514 (1999) (emphasis added). As written in the original House bill, it
appears that the word “service” refers to the same service described in the exclusion, not prior
service.
Section 519 of the original Senate bill likewise indicates that the language in the enacted
subsection (b) was originally intended to preclude the service described in the exclusion from
being excluded if the officer had previously served:
(3) Except as provided in subsection (b), service as a commissioned
officer of a reserve component while pursuing a program of
advanced education leading to the first professional degree required
for appointment, designation, or assignment as an officer in the
Medical Corps, the Dental Corps, the Veterinary Corps, the Medical
Service Corps, the Nurse Corps, the Army Medical Specialists
Corps, or as a chaplain or judge advocate if the service—
(A) follows appointment as a commissioned officer of a
reserve component; and
(B) precedes the officer’s initial service on active duty or
initial service in the Ready Reserve in the professional
specialty for which the degree if required.
(b) PRIOR SERVICE PROFESSIONAL PERSONNEL.—
The exclusion in subsection (a)(3) does not apply to service
described in that subsection that is performed by an officer who,
prior to the described service—
(1) served on active duty; or
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(2) participated as a member of the Ready Reserve other
than in a student status.
S. 1059, 106th Cong. § 519 (1999) (emphasis added).
If the original House or Senate bills had been enacted, there likely would not have been
any dispute between the plaintiff and the Army, but Congress enacted the version now before the
Court. As the plaintiff notes, the original bills did not include the last phrase found in the
enacted subsection (b); namely, the phrase, “for the period of service preceding the member’s
service in a student status,” is absent. (See ECF 62 at 15.)
Congress did not explain its reason for the change in the conference report:
The Senate bill contained a provision (sec. 519) that would not
include the years spent in a college student commissioning service
status in the computation of years of service for a reserve officer.
The provision would permit reserve officers to serve several more
years before facing mandatory separation based on years of service.
The House amendment contained a similar provision
(sec. 515).
The Senate recedes with a clarifying amendment.
H.R. Rep. No. 106-301, at 730 (1999) (Conf. Rep.). The Court is unaware of any other
explanation of the final enacted language, and therefore does not find in the legislative history
any indication that Congress intended a meaning contrary to the Court’s interpretation of the
statutory language.4
c. Application to the Plaintiff
The Court acknowledges that it is a close call. Both parties argue that the statute is clear
and unambiguous on its face. Both parties proffer incompatible readings of the unambiguous
text. Neither party’s reading is without fault.
Having thoroughly reviewed the text to discern the most appropriate reading of the
statute, the Court finds through its analysis that the defendant’s reading is the most natural
4
The committee report describing the original House bill noted that: “The section would
align the procedures used to compute years of service for reserve officers with the procedures
used to compute years of service for active duty officers.” H.R. Rep. No. 106-162, at 352-53.
Because it appears that Congress intended to align an existing exclusion for active-duty officers
in creating one for reserve officers, the Court ordered the defendant to provide the active-duty
analog of 10 U.S.C. § 14706. (ECF 69.) In response, the defendant cited the active-duty analog
of 10 U.S.C. § 14507, not § 14706. (ECF 70.) The Court is unaware of any active-duty analog
of § 14706 with which Congress intended to align the exclusion for reserve officers.
14
reading under proper standards of grammar and usage. The Court further finds nothing in the
legislative history to suggest that Congress meant to express a different interpretation of the
statute. In contrast, the plaintiff’s proposed reading would effectively rewrite the statute
Congress drafted and enacted.
The Court finds that, given its most natural reading, consistent with normal standards of
grammar and usage, 10 U.S.C. § 14706(b) supports the defendant’s reading. Subsection (a)(3)’s
exclusion does not apply, pursuant to subsection (b), to service performed by an officer who, like
the plaintiff, previously served on active duty or participated as a member of the Ready Reserve
in other than a student status prior to attending a program of advanced education. Because the
plaintiff had previously served as a transportation officer on active duty and in the Individual
Ready Reserve prior to attending law school, his service in the USAR concurrent with his time in
law school is not eligible for subsection (a)(3)’s exclusion.
B. The ABCMR’s Decision
Having decided the meaning of § 14706(b), the Court need not canvass and evaluate the
ABCMR’s reasoning. The Court must uphold the decision “unless it is arbitrary, capricious,
contrary to law, or unsupported by substantial evidence.” See Barnick, 591 F.3d at 1377.
Although the ABCMR’s decision rested on its interpretation of § 14706(a)(3), not (b)—to which
the ABCMR and the plaintiff give the same meaning—its decision to deny the plaintiff relief is
required by the most natural reading of § 14706(b).
The plaintiff argues that the ABCMR’s decision is arbitrary, capricious, and contrary to
the statute, because the ABCMR relied on “extraneous and irrelevant factors” to interpret
§ 14706(a)(3). (ECF 50 at 21.)
For the plaintiff to succeed on his claim, the Court would have to accept his interpretation
of both § 14706(a)(3) and (b). The Court’s rejection of his proposed interpretation of (b) is fatal
to his claim. Even if the ABCMR misinterpreted subsection (a)(3), relying on extraneous
factors, the statutory exclusion under (a)(3) does not apply to the plaintiff’s service during law
school pursuant to subsection (b). Significantly, the ABCMR found that the plaintiff attended
law school after his initial service on active duty and in the Ready Reserve, and the plaintiff does
not dispute that he served on active duty and in the Individual Ready Reserve prior to law school.
(See AR 668; see also ECF 1, ¶¶ 21-22.) Under subsection (b), that fact is dispositive; the
plaintiff’s service during law school is not excludable from his total commissioned service.
The ABCMR’s decision to deny the plaintiff relief is consistent with § 14706. The Court
does not reach the question of whether the ABCMR’s consideration of the so-called extraneous
factors is arbitrary and capricious. The Court’s interpretation of subsection (b) reaches the same
result as a matter of law. The ABCMR’s decision therefore was not arbitrary, capricious, or
contrary to law.
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IV. CONCLUSION
The statutory exclusion under 10 U.S.C. § 14706(a)(3) does not apply to the plaintiff’s
service pursuant to § 14706(b). The ABCMR’s finding that the plaintiff’s commissioned service
was properly calculated to include his service during law school is not arbitrary, capricious, or
contrary to law. Accordingly, the Court grants the defendant’s motion for judgment on the
administrative record and denies the plaintiff’s motion for judgment on the administrative record.
The Court will issue an order in accordance with this memorandum opinion.
s/ Richard A. Hertling
Richard A. Hertling
Judge
16