The opinion
In the United States Court of Federal Claims
No. 18-72C
Filed: September 14, 2020
RAJENDRA R. RAJPAUL,
Keywords: 10 U.S.C. § 1372;
Plaintiff, Military Pay; Army Board for
Correction of Military
v.
Records; temporary service;
THE UNITED STATES, RCFC 52.1; Judgment on the
Administrative Record
Defendant.
Joseph Whitcomb, Whitcomb, Selinsky, PC, Denver, CO, for Plaintiff.
Douglas G. Edelshick, Trial Attorney, with whom were Steven J. Gillingham, Assistant Director,
Robert Kirshman, Director, Commercial Litigation Branch, Civil Division, Ethan P. Davis,
Acting Assistant Attorney General, U.S. Department of Justice, Washington, D.C., and Major
Nicholas D. Morjal, U.S. Army, Of Counsel, for Defendant.
MEMORANDUM OPINION AND ORDER
TAPP, Judge.
In this military pay case, Plaintiff, Sergeant Rajendra Rajpaul (“Rajpaul”), seeks
adjustment of his military records to reflect retirement at a grade and rank to which he was never
formally promoted. 1 Although Rajpaul logged temporary service in a position above his grade
and rank, the Army interprets 10 U.S.C. § 1372 to require actual, lawful promotion to qualify for
retirement at the temporarily held grade and rank. The military corrections board found that
Rajpaul was considered—but was not selected—for promotion, and thus never received any
formal promotion orders. Both parties moved for judgment on the administrative record. (Pl.’s
Mot. for J. on the AR (“Pl.’s MJAR”), ECF No. 36; Def.’s Cross-Mot. for J. on the AR (“Def.’s
MJAR”), ECF No. 37). This matter now stands submitted and is ripe for decision.
As explained below, Rajpaul’s Motion for Judgment on the Administrative Record is
DENIED, and the United States’ Cross-Motion for Judgment on the Administrative Record is
GRANTED.
1
Despite never having been formally promoted, Rajpaul has repeatedly identified himself with
his requested rank of “MSG” (Master Sergeant) in the captions of his briefs. (See Pl.’s MJAR,
ECF No. 36; Pl.’s Reply, ECF No. 38).
I. Background
Rajendra Rajpaul began his military service with the U.S. Navy in 1980. (AR 636). 2
Rajpaul then joined the U.S. Army in 1984, where he served until his discharge in 2014. (AR
636, 374). On July 1, 2010, Rajpaul was promoted to Sergeant First Class (“SFC”). (AR 004). In
August 2011, while serving as a Sergeant First Class, Rajpaul accepted a reserve position with
the G2 Intelligence Division as a Non-Commissioned Officer in Charge, a Master Sergeant (E-8)
position. (AR 004). This position was designated as a drilling Individual Mobilization
Augmentee (“IMA”) position, meaning Rajpaul would perform his reserve drills with this active
duty unit. (AR 005; see also AR 869–71 (citing Army Regulation 140-145, which pertains to the
IMA Program)). Rajpaul was twice continued in this position. (AR 005). On November 11,
2011, Rajpaul was assessed with post-traumatic stress disorder and degenerative joint disease in
his left shoulder. (AR 007). An informal Physical Evaluation Board recommended Rajpaul be
retired for disability. (AR 007). Rajpaul concurred with this recommendation. (AR 007).
On September 17, 2012, Human Resources Command published a promotion list for
servicemembers in IMA positions. (AR 005). This list explicitly stated that promotions were
subject to further administrative action and the list was not to be construed as a promotion order.
(AR 006). The promotion list included names of 126 Sergeants First Class, including Rajpaul,
but only twenty-three of those names included sequence numbers. 3 (AR 006). Rajpaul’s name
was not accompanied by a sequence number, meaning he was considered, but not selected for
promotion to Master Sergeant. (AR 006, 286). Thereafter, Rajpaul made several attempts to
contact Human Resources Command regarding his misunderstanding of the published promotion
list. Human Resources Command repeatedly informed Rajpaul that he was considered, but not
selected for promotion. (AR 007).
On December 6, 2013, Rajpaul was ordered to report to the Warrior Transition Unit at
Fort Bliss to begin processing for disability retirement. (AR 007). Several documents were
generated during this process that erroneously posted Rajpaul’s retired grade as E-08 (Master
Sergeant). (AR 008). These documents were generated based on information, provided from an
unknown source, that Rajpaul was on the promotion consideration list. (AR 008). As a result,
Rajpaul was erroneously coded as a Master Sergeant in the Military Personnel Transition Point
Processing System. (AR 008). The Army Physical Disability Agency later corrected this error,
properly coding Rajpaul as a Sergeant First Class. (AR 008).
2
The United States filed the Administrative Record on July 10, 2019, (ECF No. 21). The United
States supplemented this record on March 18, 2020, (ECF No. 33). The supplemented material is
consecutively paginated; therefore, the Court simply refers to the entire supplemented record as
“AR” using the pagination located in the bottom right corner.
3
Promotions occur as vacancies exist; thus, the sequence number delineates the order soldiers
will be actually be promoted after selection for promotion. (See AR 005 (“The HRC website
Facts and Answers to Questions (FAQs) on enlisted promotions states, a Soldier’s sequence
number will be included on the selection list. If there is a sequence number beside the Soldier’s
name, the Soldier was selected for promotion. Conversely, if there is no sequence number by the
Soldier’s name, the Soldier was NOT selected for promotion.”)).
2
On February 6, 2014, Rajpaul was disciplined for failing to obey a lawful order issued by
his company commander to remove his Master Sergeant rank and wear his proper Sergeant First
Class rank. (AR 007, 791–92). Later, in March 2014, the Chief of the Department of the Army
Promotions Branch at Human Resources Command issued a memorandum stating Rajpaul’s
claim that his retirement order should be amended to the rank of Master Sergeant was
“unsubstantiated.” (AR 007). This memo was provided to Rajpaul. (AR 007).
Rajpaul was to be retired from service on February 11, 2014, but due to either Rajpaul’s
failure to sign and submit the proper paperwork, or the Army’s failure to provide Rajpaul with
the proper paperwork, his retirement date was extended. (AR 011–12). On March 28, 2014,
Rajpaul’s company commander stated Rajpaul refused to sign any documents related to his
medical retirement, out-processing, or accrued leave. (AR 012). As a result, the company
commander directed Rajpaul be processed out with an effective retirement date of February 11,
2014. (AR 016). Rajpaul was retired as a Sergeant First Class at a grade of E-7 with an
“honorable” characterization of service. (AR 188).
In December 2014, the Army Board for Correction of Military Records (“ABCMR” or
the “Board”) denied Rajpaul’s request to change his retired grade to E-8. (AR 284–88). The
Board found Rajpaul served on active duty in the E-7 pay grade as a sergeant, was never
promoted to Master Sergeant, and was placed on the Temporary Disability Retired List at the pay
grade of E-7. (AR 286). The Board reasoned that Rajpaul was not included on the promotion
standing list on the day of his separation and, despite his inclusion on the selection list, his name
did “not contain a sequence number[,] which indicates [Rajpaul] was considered but was not
selected [for promotion].” (AR 286). This finding was based on an advisory opinion from the
Army Human Resources Command. (AR 286–87).
Rajpaul filed suit in this Court in January 2018 challenging this decision from the Board.
(Compl., ECF No. 1). In April 2018, the Court remanded this matter to the ABCMR for
consideration of two issues, 4 including whether, under 10 U.S.C. § 1372(2), Rajpaul qualified for
retirement at his temporary grade of E-8—an issue not squarely addressed in prior proceedings
before the Board. (Order Remanding, ECF No. 8; see also Def.’s Mot. for Remand, ECF No. 7).
On June 24, 2019, the Board denied Rajpaul’s request to correct his retirement grade to
E-8. (AR 16–17). The Board concluded that the “orders assigning [Rajpaul] to a MSG position
as a drilling Individual Mobilization Augmentee . . . did not reflect promotion to MSG or that
[Rajpaul] was serving in a temporary grade of E-8” because “[n]either order [was] a promotion
order.” (AR 16–17). Further, the Board made clear “this assignment did not reflect service in a
higher temporary grade pursuant to [10 U.S.C. § 1372(2)]” but rather characterized Rajpaul’s
IMA assignment as mere service in a position above his assigned grade and rank. (AR 17). The
Board reiterated its previous decision that Rajpaul “was considered, but not selected, for
4
Rajpaul also requested review of his claim for unpaid leave. The ABCMR granted Rajpaul
partial relief on this claim. (AR 17–18).
3
promotion to Master Sergeant[.]” (AR 17). The Board also addressed a series of erratic orders 5
issued from January to March 2014. (AR 18, 8). The Board concluded that “orders 042-0103
showing [Rajpaul’s] retired grade of E-7/SFC and effective date of retirement at [February 11,
2014] were the final orders in effect.” (AR 9).
Rajpaul requested reconsideration by the Board in February 2020. (AR 785). The Board
again denied relief, finding Rajpaul “was voluntarily transferred into a position one grade higher
than his grade” but that “assignment did not constitute service in a higher temporary grade as
required by [§ 1372(2)]” because Rajpaul was not issued a promotion order for this position and
“any orders reflecting a retirement grade of E-8 were published in error.” (AR 806). Finally,
because Rajpaul insinuated that he was informally promoted simply by either his inclusion on the
promotion list or erroneous coding of his retired rank, the Board clarified that no such informal
promotion (i.e. “frocking”) 6 took place, nor could it under Army regulations. (AR 807).
Specifically, the Board found that “Army regulations and policy do not authorize frocking of a
[Sergeant First Class] to the rank of [Master Sergeant]” thus even if Rajpaul could claim he was
“frocked,” that action “did not constitute a valid promotion.” (AR 807). Rajpaul now challenges
the February 2020 ABCMR decision as unsupported by substantial evidence because it is
inconsistent with controlling military regulations. (Pl.’s MJAR at 5–6). 7
II. Standard of Review
Where, as here, the parties have filed cross-motions for judgment on the administrative
record, RCFC 52.1 provides a procedure for parties to seek the equivalent of an expedited trial
on a “paper record, allowing fact-finding by the trial court.” Bannum, Inc. v. United States, 404
F.3d 1346, 1356 (Fed. Cir. 2005). Unlike summary judgment standards, genuine issues of
material fact do not preclude a judgment on the administrative record. See id. at 1355–56.
Questions of fact are resolved by reference to the administrative record. Id. at 1356.
In challenging the determinations of a military corrections board, a plaintiff must
demonstrate “by cogent and clearly convincing evidence,” Wronke v. Marsh, 787 F.2d 1569,
5
Orders 013-0106; 038-0167; 042-0048; 071-0103; 042-0103; 068-0029; and 089-0001 were
issued in January, February, and March to change, revoke, and correct records related to
Rajpaul’s retired rank. (AR 8). In summary, “[t]he net result is that the above orders showing
[Rajpaul’s] correct retired rank of [Sergeant First Class] stand.” (AR 9).
6
“Frocking” is the process by which a soldier selected for promotion serves at the next higher
grade level prior to formal promotion. See Chapter 7-10, Army Regulation 600-8-19; Chapter 8-
24, Army Regulation 614-200.
7
In his brief, Rajpaul appears to blend two bases for agency review, titling the sole section of
argument: “The ABCMR’s Decision is Not Consistent with the Controlling Regulations and is
Therefore Unsupported by Substantial Evidence.” (Pl.’s MJAR at 5). Rajpaul’s reply brief
focuses on whether the Board’s decision was supported by substantial evidence. (Pl.’s Reply at
2). However, because the Court finds the Board’s decision was both supported by substantial
evidence and consistent with controlling military regulations, further discussion of this apparent
confusion is unnecessary.
4
1576 (Fed. Cir. 1986), that the military board’s decision was “arbitrary, capricious, unsupported
by substantial evidence, or contrary to law.” Metz v. United States, 466 F.3d 991, 998 (Fed. Cir.
2006). It is well settled that “responsibility for determining who is fit or unfit to serve in the
armed services is not a judicial province; and that courts cannot substitute their judgment for that
of the military departments when reasonable minds could reach differing conclusions on the
same evidence.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) (citations
omitted). Moreover, “military administrators are presumed to act lawfully and in good faith like
other public officers, and the military is entitled to substantial deference in the governance of its
affairs.” Dodson v. United States, 988 F.2d 1199, 1204 (Fed. Cir. 1993).
A court may set aside an agency’s decision if the agency “entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or the decision is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc. v. United States,
586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). However, “[w]hen substantial evidence supports the
board’s action, and when that action is reasonable in light of all the evidence presented, the court
will not disturb the result.” Pope v. United States, 16 Cl. Ct. 637, 641 (1989). The court’s review
“does not require a reweighing of the evidence, but a determination whether the conclusion being
reviewed is supported by substantial evidence.” Heisig, 719 F.2d at 1157.
III. Analysis
Rajpaul argues that the Board’s decision to retire him at E-7 is unsupported by substantial
evidence because it is inconsistent with controlling military regulations. (Pl.’s MJAR at 5–6; see
also Pl.’s Reply at 2, ECF No. 38 (“the Board’s determination lacks any substantial evidence
which would lead a reasonable fact finder to conclude that [Rajpaul’s IMA assignment] did not
constitute service in the higher MSG rank.”)). The United States counters that Rajpaul was not
promoted but was only serving in an E-8 position at the time of his retirement, and thus was not
entitled to retirement at E-8 under § 1372(2). (Def.’s MJAR at 6–7). The Court agrees with the
United States.
The Court begins with the text of the relevant statute:
Unless entitled to a higher retired grade under some other provision of law,
any member of an armed force who is retired for physical disability under
section 1201 or 1204 of this title, or whose name is placed on the temporary
disability retired list under section 1202 or 1205 of this title, is entitled to the
grade equivalent to the highest of the following:
(1) The grade or rank in which he is serving on the date when his name
is placed on the temporary disability retired list or, if his name was not
carried on that list, on the date when he is retired.
(2) The highest temporary grade or rank in which he served
satisfactorily, as determined by the Secretary of the armed force from
which he is retired.
10 U.S.C. § 1372 (emphasis added). The statute does not specify what constitutes the “highest
temporary grade or rank in which [a servicemember served] satisfactorily,” delegating to the
5
Secretary of the Army the power to proscribe further regulations on the matter. The Secretary has
determined that the “‘[h]ighest grade served on active duty’ is the grade to which a soldier was
actually promoted and paid pursuant to a lawful promotion.” Chapter 3-2, ¶ (a) of Army Reg. 15-
80 (“Enlisted Personnel Grade Determinations”); (see also DA at 8–9, ECF No. 37-1).
Here, the Board concluded that Rajpaul’s August 2011 orders to report to his temporary
assignment “were not promotion orders.” (AR 806). Instead, the Board found that “[Rajpaul] was
voluntarily transferred into a position one grade higher than his grade as authorized [by] Army
Regulation 140-10, paragraph 2-6.” 8 (AR 806). This conclusion is supported by the August 2011
orders assigning Rajpaul to a temporary E-8 position under the authority of the IMA program.
(See AR 869–70 (citing Army Reg. 140-145)). In relevant part, Army Regulation 140-145
provides:
Enlisted Soldiers will hold the same grade, or be one grade lower than the
authorized grade of the documented IMA position. Following promotion,
over-graded enlisted Soldiers may be temporarily retained in their position
up to 1 year. After 1 year, the Soldier must be reassigned or removed from
the IMA Program unless an exception to policy is granted by HRC, Fort
Knox.
Chapter 3-1, ¶ (e)(2) of Army Reg. 140-145; (see also DA at 146). The language permitting a
servicemember to hold an IMA position “one grade lower than the authorized grade” for that
position supports the Board’s conclusion that Rajpaul’s assignment was not a promotion.
Further, the Board evaluated whether Rajpaul had ever otherwise been selected for
promotion, concluding that Rajpaul “was considered, but not selected for promotion to [Master
Sergeant].” (AR 806). Because Rajpaul “was not selected for promotion, . . . there was no
promotion order to publish or send to [him].” (AR 789). As further evidence, the Board cited the
absence of a sequence number next to his name on the promotion recommended list. (AR 806,
789). The Board stated:
Individuals on the list who were selected for promotion had a sequence
number next to their names and those who were not selected did not have a
sequence number next to their names. The applicant did not have a sequence
number next to his name and thus was not selected for promotion [to Master
Sergeant].”
(AR 789). Finally, the Board reviewed Rajpaul’s records and found “any orders reflecting a
retirement grade of E-8 were published in error” based on erroneous information and were later
“changed to accurately reflect retirement in the grade of E-7.” (AR 806–07). In considering all of
the above, the ABCMR denied Rajpaul’s application for relief.
The Board’s conclusion that Rajpaul was not serving in a temporary grade of E-8 at the
time of his separation is supported by substantial evidence, consistent with military regulations,
and is reasonable in light of the evidence presented. Therefore, the Court “will not disturb the
8
Army Regulation 140-10, paragraph 2-6, provides that a soldier may request assignment to an
Army Reserve united by application, written request for assignment orders, or contacting a local
U.S. Army recruiter. (DA 38).
6
result.” Pope v. United States, 16 Cl. Ct. 637, 641 (1989); accord Heisig v. United States, 719
F.2d 1153, 1156 (Fed. Cir. 1983).
IV. Conclusion
The Court finds the decision of the ABCMR was supported by substantial evidence and
was not otherwise arbitrary, capricious, or contrary to law. Therefore, the Court DENIES
Rajpaul’s Motion, (Pl.’s MJAR, ECF No. 36), and GRANTS the United States Motion for
Judgment on the Administrative Record, (ECF No. 37). The Clerk is directed to enter judgment
accordingly.
IT IS SO ORDERED.
s/ David A. Tapp
DAVID A. TAPP, Judge
7