Hirsch v. United States

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.

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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).

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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).

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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

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