JEFFREY MACHADO and HERIK ESPINOSA, on Behalf of Themselves and of Similarly Situated Individuals

SUPERIOR COURT

JEFFREY MACHADO and HERIK ESPINOSA, on behalf of themselves and of similarly situated individuals

Docket:

2017-2056

Dates:

December 21, 2018

Present:

County:

SUFFOLK, ss.

Keywords:

MEMORANDUM OF DECISION AND ORDER ON JEFFREY MACHADO AND HERIK ESPINSOA'S MOTION FOR JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT; WASHINGTON SANTOS' MOTION FOR JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT; AND DEFENDANTS' CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS

The plaintiffs, Jeffrey Machado, Herik Espinosa, and Washington Santos, are Massachusetts veterans who deployed abroad during a time of war and were honorably discharged from their initial enlistments. Thereafter, the plaintiffs reenlisted, but were discharged from their final enlistments "under other than honorable conditions." The plaintiffs

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then applied for the "Welcome Home Bonus," which

Massachusetts provides to residents who served in the United States armed

forces after September 11, 2011. To be eligible for the Welcome Home Bonus, the

service member must have been "discharge[d] or release[d] under honorable

conditions from such service," among other criteria. Relying on the

characterization of their final enlistment period as "under other than

honorable conditions," the defendants, Deborah Goldberg, in her official

capacity as Treasurer and Receiver General ("Treasurer"), and the

Veterans' Bonus Appeal Board ("Board"), the governmental entity

within the treasury which aids in administering the Welcome Home Bonus, denied

the plaintiffs' requests. The plaintiffs challenge these denials.

Presently before the court are four

sets of motions:

Docket No. 17, 17‑2056: Machado and

Espinosa's Motion for Judgment on the Pleadings as to Counts I and II of their

Amended Complaint under G.L. c. 30A and Motion for Summary Judgment as to

Counts III to VIII alleging constitutional and class claims;

Docket No. 20, 17‑2056: Defendants'

Cross‑Motion for Judgment on the Pleadings as to Counts I and II of Machado and

Espinosa's Amended Complaint;

Docket No. 8, 18‑1310: Santos'

Motion for Judgment on the Pleadings as to Count I of his Complaint under G.L.

c. 30A and Motion for Summary Judgment as to Counts II to VI alleging

constitutional and class claims; and

No Docket Number, 18‑1310:

Defendants' Cross‑Motion for Judgment on the Pleadings as to Count I of Santos'

Complaint.

For the reasons discussed below,

and in light of the arguments made by counsel, the Court rules as follows:

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Docket No. 17, 17‑2056: Machado and

Espinosa's Motion for Judgment on the Pleadings as to Counts I and II of their

Amended Complaint is ALLOWED and their Motion for Summary Judgment as to Counts

III to VIII is DENIED AS MOOT;

Docket No. 20, 17‑2056: Defendants'

Cross‑Motion for Judgment on the Pleadings as to Counts I and II of Machado and

Espinosa's Amended Complaint is DENIED;

Docket No. 8, 18‑1310: Santos'

Motion for Judgment on the Pleadings as to Count I of his Complaint is ALLOWED,

and his Motion for Summary Judgment as to Counts II to VI is DENIED AS MOOT;

and

No Docket Number, 18‑1310:

Defendants' Cross‑Motion for Judgment on the Pleadings as to Count I of Santos'

Complaint (no paper number) is DENIED.

The Court REMANDS these matters

back to the Board for reconsideration in light of this decision.

STATUTORY BACKGROUND

The Welcome Home Bonus statute

("Bonus Law") grants post‑9/11 veterans monetary payments in amounts

that vary depending on the location of their military service. The Veteran's

Bonus Division, under the direction of the Treasurer, administers the Bonus

Law.

The Bonus Law provides:

(a) Notwithstanding any general or

special law to the contrary, upon application, ..., there shall be paid to each

person who shall have served in the armed forces of the United States in active

service as part of part of Operation Enduring Freedom, Operation Iraqi Freedom,

Operation Noble Eagle, Operation Inherent Resolve, Operation Freedom Sentinel

or any successor or related operation and who was discharged or released under

honorable conditions from such service, the sums specified in this section; if

the domicile of every person on account of whose service the application is

filed, shall have been in the commonwealth for a period of not less than 6

months before the time of his entry into the service.

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(1) $1,000 to each such veteran who

performed active service outside the continental limits of the United States in

the Afghanistan or Iraq area as those areas are described by proper federal

authority.

(2) $500 to each such veteran who

performed active service within the continental limits of the United States or

outside the continental limits of the United States other than in the

Afghanistan or Iraq areas for a period of 6 months or more.

St. 2005, c. 130, '

16 as amended by St. 2005, c. 167, '

4.[1] A service member who "is eligible to receive benefits under [the

Bonus Law] may receive such benefits; provided, however, that an eligible

resident shall receive the full bonus allowed by said [Bonus Law] upon return

after his first deployment to [a qualifying military operation]. ... He shall

thereafter receive 50 per cent of the bonus ... after each subsequent return

from deployment to [a qualifying military operation]." St. 2011, c. 171, ' 3. Applications for a bonus under the

Bonus Law "shall be filed with the state treasurer, upon forms to be

furnished by [her]." St. 2005, c. 167, '

4. Then the

adjutant general shall certify to

the state treasurer the dates of service and any other military information

necessary to carry out the provisions of this act. The state treasurer shall

furnish to the adjutant general a copy of Form DD‑214 or equivalent

documentation as determined by the adjutant general for the permanent record of

the military division of the commonwealth.

St. 2005, c. 167, '

4.

The form mentioned above, the Form

DD‑214, is a document issued by the military when an active‑duty service member

is discharged. See Department of Defense Instruction 1336.01, ' 4.3(a) (Aug. 20, 2009) ("The DD

Form 214 will provide an accurate and complete summation of active military

personnel service. It will provide the Military Services with an authoritative

source of personnel information for administrative purposes, and for making

enlistment or reenlistment eligibility determinations."); see also Army

Regulations 635‑8, 5‑1 (Feb. 10, 2014)

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[1]Until 2018, the Bonus law was

found in session laws. As of November 7, 2018, the law is contained in G. L. c.

10, ' 78. As

the Board decided these matters before November 7, 2018, the Court will refer

to the session laws in this decision and specifically, the session laws of

2005, as the Board relied on the 2005 session laws in making its

determinations.

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("The DD Form 214 is a summary of the Soldier's most

recent period of continuous active duty."). Form DD‑214 is the

"authoritative source of information required for the administration of

State and Federal laws applicable to personnel who have been discharged."

Department of Defense Instruction 1336.01, '

4.3(f) (Aug. 20, 2009).

When an active‑duty military member

decides to reenlist, the military discharges that service member from his or

her current enlistment, and then the service member enters a new enlistment

contract. See Department of Defense Instruction 1332.14, Enclosure 3, ' 2(a)(4) (Jan. 27, 2014) (enlisted

service member may be separated for immediate reenlistment). The military does

not issue Form DD‑214 when discharging an active‑duty service member for

purposes of immediate reenlistment. See Army Regulations 635‑8, ' 5‑2(f) (Feb. 10, 2014). Rather, it

issues Form DD‑256, "Discharge Certificate, Honorable." A military

member who seeks to reenlist can only do so if his or her discharge from the

prior enlistment was honorable. $ee 10 U.S.C. '

508(a) ("No person whose service during his last term of enlistment was

not honest and faithful may be reenlisted in an armed force. However, the

Secretary concerned may authorize the reenlistment in the armed force under his

jurisdiction of such a person if his conduct after that service has been

good."); Department of Defense Instruction 1332.14, Enclosure 3, ' 2(a)(4) and 2(b) (Jan. 27, 2014);

Department of Defense Instruction 1332.14, Enclosure 4, '

3(b)(2)(a) (Jan. 27, 2014). When that service member is separated from active

service and returns to civilian status, the Form DD‑214 is completed as

follows:

The date entered in Block 12a shall

be the date of enlistment for the earliest period of continuous active service

for which a DD Form 214 was not previously issued. For Service members who have

previously reenlisted without being issued a DD Form 214, and who are being

separated with any discharge characterization except 'Honorable,' the following

statement shall appear as the first entry in Block 18 on the DD Form 214: 'CONTINUOUS

HONORABLE ACTIVE SERVICE FROM (applicable date) UNTIL (applicable date).'

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(1) The 'from' date shall be the

date of initial entry into active duty, or the first day of service for which a

DD Form 214 was not previously issued, as applicable.

(2) The 'until' date shall be the

date before commencement of the current enlistment.

Department of Defense Instruction 1336.01, Enclosure 3, ' 3(j) (Aug. 20, 2009); Army Regulations

635‑8 ' 5‑6(r)(4)(b)

(Feb. 10, 2014).

Under the Bonus Law, any person

aggrieved by a decision of the Treasurer in the matter of payments provided

under the Bonus law may appeal to the Board. St. 2005, c. 167, ' 4.

FACTUAL BACKGROUND

Espinosa served on active duty in

the United States Army from November 9, 2004 until February 19, 2016, including

a tour of duty in Afghanistan as part of one of the operations identified in

the Bonus Law.[2] Espinosa was honorably discharged on January 31, 2008 and

February 10, 2015, and after each of these discharges, he immediately

reenlisted. Espinosa was finally discharged on February 19, 2016, "under

other than honorable conditions," as reflected in his Form DD‑214.

Machado served on active duty in

the United States Army from March 7, 2011 until September 12, 2014. On December

18, 2012, he was deployed to Afghanistan until August 23, 2013 as part of one

of the operations identified in the Bonus Law. In order to deploy, Machado elected

to extend his Army enlistment. While in Afghanistan, Machado re‑enlisted.

Machado was finally discharged on September 12, 2014, "under other than

honorable conditions," as reflected in his Form DD‑214.

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[2]The Court understands the term

"enlistment' refers to be the period of time during which a military

member commits himself to military service in an enlistment agreement. The

phrase "tour of duty," by contrast, means the period of time spent by

a service member in combat or in a hostile environment.

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Santos served on active duty in the

United States Army from September 15, 2004 until February 10, 2012, including a

deployment in Afghanistan as part of one of the operations identified in the

Bonus Law. Santos was discharged honorably on April 23, 2007 and October 8,

2007, and after each, immediately reenlisted. Santos was finally discharged on

February 10, 2012, "under other than honorable conditions," as

reflected in his Form DD‑214.[3]

All three plaintiffs applied for

benefits under the Bonus Law. The Board denied the plaintiffs' applications

because the plaintiffs' Form DD‑214s stated that they were discharged

"under other than honorable conditions." The Board concluded that to

receive benefits under the Bonus Law, a veteran must demonstrate service

"under honorable conditions"; that where the military has issued a

Form DD‑214, the description provided in the "character of service"

section is dispositive for purposes of providing any benefits under the Bonus Law;[4]

that the "character of service" designation applies to whatever

period of service is printed in the "Record of Service" section of

the form; and that the characterization in "character of service" box

supersedes any prior characterizations made by the military during the period

of service reflected in the "Record of Service." In support, the

Board cites to Department of Defense Instruction 1332.14, Enclosure 4, ' 3(b)(3), which states that

"characterization will be determined solely by the enlisted Service

member's military record during the current enlistment or period of service to

which the separation pertains" (emphasis added). Despite this language,

the Board determined that "the period of service to which the separation

pertains" is that entire period listed in the

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[3]Under the Department of Defense

Instruction 1336.01, Enclosure 3, '

3(j) (Aug. 20, 2009) and Army Regulations 635‑8 '

5‑6(r)(4)(b) (Feb. 10, 2014) cited above, Santos' Form DD‑214 correctly lists

his continuous honorable active service as being from September 15, 2004 to

October 8, 2007. Machado's Form DD‑214 fails to note the period of his honorable

service. Espinosa's Form DD‑214 states an incorrect "until" date for

his continuous honorable service.

[4]The Board cites Department of

Defense Instruction 1336.01, '

4.3(f), which states that Form‑DD 214 is the "authoritative source of

information required for the administration of State and Federal laws

applicable to personnel who have been discharged."

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"Record of Service" section of Form DD 214, and

that therefore the military had characterized the entirety of plaintiffs'

service, including any reenlistment terms, as "other than honorable."

Based on this, the Board concluded that the plaintiffs' earlier honorable

discharges were not relevant for purposes of determining whether the plaintiffs

were entitled to benefits under the Bonus Law.

The adjutant general played no role

in making these determinations.

DISCUSSION

The Court may set aside a state

agency's decision only on the grounds enumerated in G.L. c. 30A, ' 14. See Howard Johnson Co. v.

Alcoholic Beverages Control Comm'n, 24 Mass. App. Ct. 487, 490 (1987). The

Court thus reviews the decision to determine whether it was not supported by

substantial evidence, was arbitrary or capricious, or was based on an error of

law. G.L. c. 30A, ' 14(7);

see also, ex., The Local Citizen Group v. New England Wind, LLC, 457 Mass. 222,

228 (2010). A moving party bears a heavy burden of establishing that an

agency's decision is invalid. See Merisme v. Board of Appeals on Motor Vehicle

Policies and Bonds, 27 Mass. App. Ct. 470, 474 (1989); Mass. Ass'n of Minority

Law Enforcement Officers v. Abban, 434 Mass. 256 , 263‑64 (2001). In is review,

the Court gives due weight to the "experience, technical competence, and

specialized knowledge of the agency" and the discretionary authority

conferred upon it, see G. L. c. 30A, '

14(7), and will not substitute its judgment for that of the agency. Southern

Worcester Cnty. Reg'l Coy. Sch. Dist. v. Labor Relations Comm'n, 386 Mass. 414 ,

420‑21 (1982).

As to issues of law, the Court

"grant[s] deference to the interpretations administrative agencies make of

the statutory scheme that they administer, "but "generally review[s]

an agency's interpretation of law de novo." Trustees of Health &

Hosps. of the City of Boston. Inc.

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v. Massachusetts Comm'n Against Discrimination, 65 Mass.

App. Ct. 329, 333 (2005) (citations omitted), aff = d

sub nom. Trustees of Health & Hosps. of City of Boston, Inc. v.

Massachusetts Comm'n Against

Discrimination, 449 Mass. 675 (2007); see also Buchanan v. Contributory

Ret. Appeal Bd., 65 Mass. App. Ct. 244,

246 (2005) (citations omitted). The applicable principle is one of deference,

not abdication, and the Court may overrule an agency's interpretation of the

law when it is contrary to the plain language of a statute and its underlying

purpose. Leopoldstadt, Inc. v. Commissioner of Div. of Health Care Finance and

Policy, 436 Mass. 80, 91 (2002), citing Protective Life Ins. Co. v. Sullivan,

425 Mass. 615, 618 (1997); see also Goldberg v. Board of Health, 444 Mass. 627,

633 (2005); Town of Wakefield v. Labor Relations Comm'n, 45 Mass App. Ct. 630,

633 (1998).

The primary issues in this case

concern the Board's determinations that (1) the "character of

service" designation on Form DD‑214 supersedes any prior characterizations

made by the military, such as honorable discharges; and (2) if the service

member has Form DD‑214, the Board will consider only that form when determining

whether a service member was honorably discharged and therefore eligible for a

bonus.

The core factual claims are not

disputed. Each plaintiff served one or more enlistments that appear to qualify

each plaintiff for benefits under the Bonus Law. At the end of at least one

such enlistment, each plaintiff was, under military procedure, honorably

discharged, but immediately re‑enlisted. No DD‑214 was issued following these

discharges. None of the plaintiffs applied for bonuses at the time, largely C and critically C

because they were overseas, and perhaps in the midst of a combat tour, when

they re‑enlisted. After one or more further enlistments, each plaintiff was

less than honorably discharged from their final enlistment with the military,

and then applied for benefits. For instance, Espinosa was honorably discharged

in

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December 2008 and December 2015 from evidently bonus‑qualifying

enlistments for which he applied, immediately re‑enlisted, and was finally

discharged on less than honorable terms in 2016, after a final enlistment.

Despite the apparent, prior bonus‑qualifying enlistments from which Espinosa

was honorably discharged, the Board denied all benefits for all enlistments.

The Board argues that because the

plaintiffs were less than honorably discharged at the end of their final

enlistment, they are ineligible under the Bonus Law for any benefits for any

prior enlistment. The Board asserts that this Court must defer to its judgment

that it only considers the DD‑214, and to the Board's interpretation of it, as

the final word on whether a serviceperson was honorably discharged, and since

the DD‑214's reflects a less than honorable discharge, the plaintiffs are

ineligible for any bonus benefits arising from any enlistment. The Board's

position is in error, for at least three reasons.

First, the Board's all‑or‑nothing

approach to benefits under the Bonus Law C

that a service member who has served a qualifying tour of duty in combat or

otherwise cannot receive any benefits for any prior enlistment if he or she was

dishonorably discharged at the end of the last one C

is not found in the statute, but rather conflicts with it. St. 2005, c. 130, ' 16 as amended by St. 2005, c. 167, ' 4, provides benefits if three

conditions are met: that the applicant (1) served in one of the named

operations; (2) was domiciled in Massachusetts for at least six months before

entry into service; and (3) was "discharged or released under honorable

conditions for such service." "Such service" is not defined, but

the Bonus Law on its face authorizes bonuses for service during one of the

named military operations from which a service member was honorably discharged.

Further, in 2011, the Legislature amended the Bonus Law to make it clear that

the Legislature intended that each enlistment be considered as a separate

qualifying event under the Bonus Law. That statute, St. 2011, c. 171, ' 3, states that a service member who

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is eligible to receive benefits

under [the law] may receive such benefits; provided, however, that an eligible

resident shall receive the full bonus allowed by said [law] upon return after

his first deployment to the [qualifying military operation]. ... He shall

thereafter receive 50 per cent of the bonus ... after each subsequent return

from deployment to the [qualifying military operation].

St. 2011, c. 171, '

3 (emphasis added). The Legislature provided for varying levels of payments per

deployment C full

benefits upon return from the first deployment and half‑benefits "after

each subsequent return from deployment" C

and thus plainly intended that the Board apply the Bonus law on a per‑enlistment

basis, and not a per‑career basis. The Board's interpretation of the Bonus Law

to prohibit payment for a deployment that ended in honorable discharge simply

because the final deployment ended in a less‑than‑honorable discharge conflicts

with this direction. This is particularly so considering nothing in the Bonus

Law requires a service member to apply for the Bonus immediately upon an

honorable discharge from an enlistment C

and here, doing so was impossible for the plaintiffs because each was still

serving the country as service members overseas. Further, the Board's argument

that the benefits are only payable "upon application" does not make

the final determination of veteran's status in the DD‑214 determinative, even

were the Board's interpretation of the DD‑214 correct. That language simply

means that a veteran [5] must apply to get benefits, but it does not prohibit

him or her from arguing that earlier enlistments qualify for payment of

benefits under the statute. If it meant what the Board claims, then a military

person who enlists while overseas faces a hurdle in having to apply for

benefits as soon as the enlistment ends to protect his/her interests, a requirement

not

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[5]The Board also erroneously

argued that the term "veteran" as used in the Bonus Law should be

defined as it is under G.L. c. 4, ' 7,

clause 43, which requires an honorable discharge. The Bonus Law provides

benefits to "each person who shall have served in the armed forces of the

United States in active service as part of part of Operation Enduring Freedom,

Operation Iraqi Freedom, Operation Noble Eagle, Operation Inherent Resolve,

Operation Freedom Sentinel or any successor or related operation." Its

subsequent use of the phase 'such veteran" refers to these individuals.

"Veteran" under G.L. c. 4, ' 7,

clause 43, means service member who provided "wartime service,"

defined to include service during other conflicts C

but not those operations identified in the Bonus Law. The Board's reading,

then, would eviscerate the Bonus Law.

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found in the statute. That erroneous reading would yield

unjust results. A service member who is discharged from an enlistment and

returns home from a combat duty could apply for and receive benefits, even if

he or she later re‑enlists and is subsequently less than honorably discharged.

By contrast, a service member C

like the plaintiffs here C

who are discharged while serving in a hostile environment but remain in that

environment and immediately re‑enlist, and who therefore delays applying for

benefits for the just‑completed enlistment, lose the opportunity to ever

receive benefits for that qualifying enlistment if they are later less than

honorably discharged. The Bonus Law was designed to reward service to the

country. The Board's reading would penalize such service for military members

who voluntarily remain in combat, a result at odds with the Legislature's

intent.

Second, the Board's determination

that the DD‑214, and the Board's interpretation of it, is final also conflicts

with the Bonus Law. The Bonus Law expressly states that the DD‑214 "or

equivalent documentation as determined by the adjutant general" is to be

provided to the adjutant general in determining eligibility, and that it is the

adjutant general, and not the Board, who is authorized under the Bonus Law to

certify relevant military information to the Board. See St. 2005, c. 167, ' 4 ("adjutant general shall

certify to the state treasurer the dates of service and any other military

information necessary to carry out the provisions of this act."). The DD‑214

is therefore not the final word on eligibility for benefits under the Bonus

Law, and in these cases, the adjutant general made no certification as to any

of the military information on which the Board relied. When asked about this

provision of law at argument, counsel for the Board argued that Court should

"ignore" the law. It is highly inappropriate for any lawyer, much

less the Attorney General, to suggest a Court to ignore the law. It is fatal

when a state agency takes such a position. The Board's position on this point

was also arbitrary and capricious. In its brief and

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in its decision in Machado's case, the Board recognized that

there would be no DD‑214 when a service member was discharged and then re‑enlisted,

but such a person could still apply for benefits without this supposedly‑necessary

and determinative document. See Memorandum, at 15‑16, n. 15; AR, at 297, 299.

The Board's concession that other military forms can substitute for the DD‑214

demonstrates that insistence on that form in these cases was arbitrary and

capricious. For all of these reasons, the Board erred as a matter of law when

it determined, on its own, that it would rely solely on the DD‑214 and its own

reading of it.

Third, the Commonwealth's

interpretation of the DD‑214 is not supported by federal regulations that

describe that form, which further reflects the arbitrariness and capriciousness

of the Board's view. Department of Defense Instruction 1332.14, Enclosure 4 ' 3(b)(3) states that the "under

other than honorable conditions" characterization "will be determined

solely by the enlisted Service member's military record during the current

enlistment or period of service to which the separation pertains"

(emphasis added). This instruction does not say that the characterization

applies to all service performed by the service member during all enlistments C and the facts here plainly show it

does not characterize those prior discharges.

Based on the foregoing, the Board's

interpretation of the Bonus Law is erroneous as a matter of law, arbitrary and

capricious. The Court thus allows the plaintiffs' motions for judgment on the

pleadings and denies the Board's cross‑motions, and remands these matters to

the Board for reconsideration in light of these determinations. The Court

declines to address the constitutional questions raised by plaintiffs in their

motions for summary judgment, as its determination under the Bonus Law provides

the necessary answers. See e4., SCVNGR, Inc. v.

Punchh. Inc., 478 Mass. 324 , 330 (2017) ("[I]t is canonical that

courts should, where possible, avoid unnecessary constitutional

decisions."); Beeler v. Downey, 387 Mass. 609 , 613 & n.4

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(1982) (court has duty to interpret statutes in manner that

avoids unnecessary decision of serious constitutional question). The Court

further declines to reach the class claims. Therefore, the Court denies the

plaintiffs' motions for summary judgment on those counts as moot.

ORDER

For the foregoing reasons, it is

hereby ORDERED:

Docket No. 17, 17‑2056: Machado and

Espinosa's Motion for Judgment on the Pleadings as to Counts I and II of their

Amended Complaint is ALLOWED and their Motion for Summary Judgment as to Counts

III to VIII is DENIED AS MOOT;

Docket No. 20, 17‑2056: Defendants'

Cross‑Motion for Judgment on the Pleadings as to Counts I and II of Machado and

Espinosa's Amended Complaint is DENIED;

Docket No. 8, 18‑1310: Santos'

Motion for Judgment on the Pleadings as to Count I of his Complaint is ALLOWED,

and his Motion for Summary Judgment as to Counts II to VI is DENIED AS MOOT;

and

No Docket Number, 18‑1310:

Defendants' Cross‑Motion for Judgment on the Pleadings as to Count I of Santos'

Complaint (no paper number) is DENIED.

The Court REMANDS these matters to

the Board for reconsideration in light of this decision.

This matter is hereby DISMISSED.

SO ORDERED.

/s/MICHAEL D. RICCIUTI Associate Justice of the Superior

Court

December 21, 2018