Pedden v. United States

In the United States Court of Federal Claims

No. 11-207C

Filed: August 31, 2022

NOT FOR PUBLICATION

IAIN D. PEDDEN,

Plaintiff,

v.

UNITED STATES,

Defendant.

Iain D. Pedden, pro se.

Michael D. Austin, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,

Washington, D.C.; Lt. Cmdr. Ann Oakes, U.S. Navy, of counsel, for the defendant.

MEMORANDUM OPINION AND ORDER

HERTLING, Judge

The plaintiff, Marine Corps Judge Advocate Lieutenant Colonel Iain D. Pedden,

appearing pro se, argues that he should have received Constructive Service Credit (“CSC”) for

advanced education upon original appointment, rather than upon designation as a judge advocate.

In 2019, the Court dismissed three of the plaintiff’s claims and remanded the single

remaining claim to the Board for Correction of Naval Records (“BCNR” or “the Board”) for

further consideration. Pedden v. United States (“Pedden I”), 145 Fed. Cl. 785 (2019). In that

remaining claim, the plaintiff alleged that the Marine Corps did not administer CSC to him in

accordance with the applicable law and regulations. In two decisions on remand, the BCNR

denied the plaintiff relief for that claim.

The plaintiff has moved for judgment on the administrative record. He argues that

(1) delaying the application of CSC until the plaintiff’s designation as a judge advocate is an

arbitrary and capricious abuse of discretion; (2) the BCNR’s decisions on remand failed to

articulate a rational basis for delayed application of CSC in the plaintiff’s case; (3) the BCNR’s

decisions on remand abandoned the Board’s mandate to correct error or injustice; and (4) the

proper time to apply CSC is on original appointment.

The defendant has opposed the plaintiff’s motion and cross-moved for judgment on the

administrative record. The defendant argues that the BCNR fulfilled its obligations pursuant to

the Court’s order of remand by providing a rational explanation for the timing of the application

of CSC to the plaintiff, and that the plaintiff’s arguments are unavailing.

Because the Board provided a rational explanation for the application of the plaintiff’s

CSC, the defendant’s motion is granted, and the plaintiff’s motion is denied.

I. BACKGROUND

A. Legal Background

CSC is military-service credit for time spent pursuing an advanced education. Pursuant

to 10 U.S.C. § 12207 (“the CSC statute”), commissioned officers are granted credit for their

advanced education:

Under regulations prescribed by the Secretary of Defense, a person

who is receiving an original appointment as a reserve commissioned

officer (other than a commissioned warrant officer) of the Army,

Navy, Air Force, or Marine Corps, or a designation in, or an

assignment to, an officer category in which advanced education or

training is required and who has advanced education or training,

shall be credited with constructive service for such education,

training, or experience . . . .

10 U.S.C. § 12207(b)(1).1

The CSC statute further specifies that “[t]he grade and position on the reserve active-

status list of a person receiving an appointment as a reserve officer who at the time of

appointment is credited with service under this section shall be determined under regulations

prescribed by the Secretary of Defense based upon the amount of service credited.” 10 U.S.C.

§ 12207(f). The Marine Corps is part of the Department of the Navy, which in turn is part of the

Department of Defense.

The CSC statute is applied to the Marine Corps and, specifically, to Marine Corps judge

advocates through both a directive from the Department of Defense and a Secretary of the Navy

instruction. The CSC statute is implemented through Department of Defense Directive Service

Credit for Commissioned Officers, DoDD 1312.3 (1996) (“the Defense Directive”).2

DoDD 1312 “implement[ed] Section 12207 of [Title 10] to establish policies and procedures

1

The language of 10 U.S.C. § 12207(b)(1) is provided here as it was at the time relevant to

this case. The statutory language was amended by Congress, effective January 1, 2021.

2

DoDD 1312.3 was in effect at the time relevant to the application of CSC to the plaintiff. It

was superseded by DoDD 1312.03 on October 6, 2006. References to the DoDD are to the

version applicable to the plaintiff.

2

governing the granting of service credit to persons upon original appointment, designation, or

assignment as a Reserve commissioned officer, except those in the health professions.”

DoDD 1312.3 § 1.3. The Defense Directive provides that “[i]t is the policy of the Department of

Defense that the award of service credit to any person being appointed, assigned, or designated

as a commissioned officer in an officer category shall be equitably determined to establish an

appropriate appointment grade and date of rank relative to other officers in the same competitive

category.” DoDD 1312.3 § 4.1.

The Defense Directive also provides the purpose of CSC:

The purpose of constructive service credit is to provide grade and

date of rank comparability for a person who begins commissioned

service after obtaining the additional education, training, or

experience required for appointment, designation, or assignment as

a commissioned officer in a professional field relative to a

contemporary who began commissioned service immediately after

obtaining a baccalaureate degree.

DoDD 1312.3 § 4.2.2.

The Defense Directive applies to Marine Corps judge advocates through Secretary of the

Navy Instruction Designation of Officers of the Regular Marine Corps and Marine Corps

Reserve as Marine Judge Advocates, SECNAVINST 1120.9A (1988) (“the Navy Instruction”).

Paragraph 8c(3) of the Navy Instruction provides guidance with respect to when CSC shall be

applied to Marine judge advocates: “[a]n individual who was initially appointed as a Marine

Corps Reserve officer in the Officer Candidate (Law) Program . . . before graduation from law

school shall be credited upon designation as a judge advocate . . . .”

B. Facts3

The plaintiff joined the Marine Corps in March 2001 and reported to Officer Candidate

School (“OCS”) in the summer of that same year. (AR 9, 43.4) On October 13, 2001, upon

completing OCS, the plaintiff was commissioned a second lieutenant in the Marine Corps

Reserve with a Military Occupational Specialty designator of 4401 (student judge advocate).

(AR 9, 38.) At the time of commission, the plaintiff had already attended two years of law

school and had taken 57 of the 86 required credits to complete his law degree. (AR 9.) He then

3

For a more detailed recitation of the background facts, see Pedden I, 145 Fed. Cl. 785.

4

Citations to the administrative record refer to the pagination in the first supplemental

administrative record (ECF 117-1) and to the corrected second supplemental administrative

record (ECF 149).

3

returned to law school, graduated, and passed the bar exam. (Id.) He was ordered to report to

The Basic School (“TBS”) in June 2003. (Id.)

On October 13, 2003, while at TBS, the plaintiff, having completed the required two

years in grade as a second lieutenant, was promoted to first lieutenant. (AR 9.) He graduated

from TBS in December 2003, reported to the Basic Lawyer Course (“BLC”) at the Naval Justice

School (“NJS”) in January 2004, graduated from the NJS, and was designated a Marine Corps

judge advocate on March 5, 2004. (AR 9.) The plaintiff has served continuously on active duty

in the Marine Corps since June 12, 2003. (AR 9.)

The timing of adding CSC to the plaintiff’s service timeline, detailed above, directly

influences when he was considered for promotion to captain. More specifically, awarding CSC

to the plaintiff’s service timeline prior to his designation as a judge advocate means he would

have been considered for promotion to captain by the fiscal year (“FY”) 2004 selection board

and among those eligible for consideration “above zone, not previously considered” by the

FY 2005 captain’s promotion selection board, making his latest possible promotion at or around

February 9, 2004, or prior to his designation as a judge advocate. (AR 9.) Because the

plaintiff’s CSC was applied upon his designation as a judge advocate and not upon appointment,

he was not considered by the FY 2005 board. (Id.) Instead, he was considered for promotion to

captain by the FY 2006 board and promoted to captain on August 1, 2005. (Id.) It is this

delayed promotion schedule, caused by an allegedly improper delay in application of CSC, that

the plaintiff is challenging.

C. Procedural History

The plaintiff challenged the timing of the application of his CSC at the BCNR in 2008.

After the BCNR denied relief, the plaintiff filed a complaint in this court in 2011. (Pl.’s Compl.,

ECF 1; see also Pl.’s Am. Compl., ECF 27-1; Pl.’s Suppl. Compl., ECF 61.) On remand in

2016, the BCNR again denied the plaintiff relief. In his amended and supplemental complaints,

the plaintiff raised four claims related to the timing of the application of his CSC. In Pedden I,

Counts I, II, and IV were dismissed for failure to state a claim upon which relief can be granted.

145 Fed. Cl. at 802.

In Count III, the plaintiff’s only remaining claim, the plaintiff alleges that the Marine

Corps did not administer his CSC in accordance with applicable law. (ECF 27-1, ¶¶ 39-44.)

Although the Court did not find in Pedden I that the Navy Instruction itself was arbitrary and

capricious, the Court found that the BCNR’s failure to provide an explanation for the Marine

Corps’ application of CSC to the plaintiff at the time of his designation as a judge advocate was

arbitrary and capricious. Pedden I, 145 Fed. Cl. at 801. As a result, the previous BCNR decision

was vacated, and the remaining claim alleged in Count III was remanded to the BCNR for

further consideration. Id. at 802.

In January 2020, the BCNR issued its decision on remand. The Board provided a

rationale for applying CSC credit to Marine Corps judge advocates only upon designation.

(AR 363.) The Board explained that the distinctive nature of Marine Corps officers—if they fail

to complete the NJS satisfactorily, they, unlike prospective judge advocates in the other service

4

branches, are not separated from the service but rather continue serving as non-lawyer officers in

the Marine Corps—justifies waiting to apply CSC until after designation as a Marine Corps

judge advocate rather than at the time of commission. (Id.) The Board denied the plaintiff relief.

In April 2020, the plaintiff filed a status report indicating that, after the Board’s January

2020 decision, he had obtained “affidavits by very senior Marine Corps judge advocates which

detail the fact [that] student judge advocates have no control over the timing of the BLC class or

which one they attend, which in turn results in arbitrary, capricious, and inequitable application

of CSC.” (ECF 99 at 2.) The plaintiff argued that the new, material evidence constituted

grounds for the BCNR’s reconsideration of its January 2020 decision, and the defendant did not

oppose the request. (Id. at 1-2.) Accordingly, the Court remanded the case to the Board for

reconsideration. (ECF 101.) In May 2020, the plaintiff filed a request for reconsideration with

the Board, requesting that the Board determine “[w]hether the Marine Corps’ application of

[Marine Corps Order (“MCO”)] P1400.31C is arbitrary and capricious when considering the

timing of its application and failing to apply the credit as directed by the MCO P1400.31C at the

time of the Marine Corps’ choosing.”5 (AR 353.)

In November 2020, the BCNR issued its decision on the plaintiff’s request for

reconsideration. The Board’s decision contained three main conclusions. (AR 328.) First, the

Board found that the request for reconsideration filed by Lt. Col. Pedden based upon MCO

P1400.31C was a substantially different claim from the claim presented in Count III, which was

the subject of the remand. (AR 330.) Notwithstanding this finding, the Board went on to

conclude that MCO P1400.31C applies to promotions not applications of CSC, and that the

Marine Corps is not required by MCO P1400.31C “to apply CSC in such a manner as to ensure

promotion eligibility parity with those officers commissioned close in time.”6 (Id.) Finally, the

Board reiterated the reasoning employed in its January 2020 decision for applying the CSC to

Marine Corps judge advocates upon designation. (Id.) The Board emphasized the scope and

appropriateness of the exercise of the Secretary’s discretion as it pertains to timing of CSC to

Marine Corps judge advocates only upon their designation due to the distinctive treatment of

prospective judge advocates by the Marine Corps. (Id.)

Following the Board’s resolution of the plaintiff’s request for reconsideration, the

plaintiff’s counsel moved to withdraw. That motion was held in abeyance, and the plaintiff was

given time to secure new counsel, including pro bono counsel. After the plaintiff failed to obtain

new counsel, the motion to withdraw was granted. The plaintiff, who is a lawyer, is proceeding

pro se. The plaintiff has represented himself with distinction.

5

MCO P1400.31C is the Marine Corps Promotion Manual.

6

The plaintiff did not pursue his argument based on MCO P1400.31C in his motion for

judgment on the administrative record. Accordingly, the Court does not address this issue.

5

The plaintiff has moved for judgment on the administrative record. The defendant has

opposed the plaintiff’s motion and has cross-moved for judgment on the administrative record.

The motions have been fully briefed, and the Court held oral argument on August 23, 2022.

II. JURISDICTION

The Tucker Act limits the jurisdiction of the Court of Federal Claims to causes of action

based on money-mandating statutes and regulations. Claims involving military pay are covered

by this limitation. 28 U.S.C. § 1491(a)(1); Metz v. United States, 466 F.3d 991, 995-97 (Fed.

Cir. 2006). Promotions under the Military Pay Act are money-mandating if a service member

met the legal requirement for promotion—i.e., had a “clear-cut legal entitlement”—but the

service failed to recognize it. Smith v. Sec’y of Army, 384 F.3d 1288, 1294 (Fed. Cir. 2004). In

Pedden I, the Court found jurisdiction existed to consider the plaintiff’s claim for promotion to

captain but not to consider the plaintiff’s claims for promotion to major and lieutenant colonel.

145 Fed. Cl. at 795-96.

III. STANDARDS OF REVIEW

On a motion for judgment on the administrative record pursuant to Rule 52.1 of the Rules

of the Court of Federal Claims (“RCFC”), the court’s review is limited to the administrative

record, and the court makes findings of fact as if it were 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) (applying the Bannum standard of

review to an RCFC 52.1 motion involving a decision of a military records-correction board),

cert. denied, 569 U.S. 964 (2013). 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 of Federal Claims reviews decisions of military records-correction boards

under the review standard 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’s standard of review, 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).

During oral argument, the plaintiff urged the Court to apply a more searching standard of

review. He asserted that the administrative record contains unfounded evidence from the Marine

Corps from which the Board and the Court might draw inferences adverse to the plaintiff. For

example, the plaintiff posits that the Marine Corps has intimated that the timing of his

assignment to the NJS was due to his having failed his first effort to pass the bar, despite the

plaintiff’s having passed the bar on his first attempt. (See, e.g., AR 200 (“Although the Illinois

Board of Admissions to the Bar conducted an examination in July 2002, you were not admitted

to the practice of law as a result of this examination.”); AR 237 (“Applicant fails to note,

however, that, although he graduated from law school in May 2002, and the Illinois Bar

conducted examinations in July 2002 and February 2003, he was not admitted to the practice of

6

law in Illinois until 14 March 2003, almost a year after his graduation.”).) While the record

contains some indications that the Marine Corps has on occasion attempted to employ inaccurate

innuendo against the plaintiff, there is no evidence that the Board has ever relied on that

innuendo. The Board’s decisions, though adverse to the plaintiff, have been based on its reading

of the law and the application of the law to the plaintiff. None of the Board’s decisions,

including the ones under review, reflect any reliance on improper innuendo or erroneous adverse

inferences that may be found in the administrative record. The Court declines to employ a

heightened standard of review.

IV. DISCUSSION

The plaintiff challenges the Board’s decisions, arguing that (1) “[d]elaying the

application of CSC in [this] case until designation as a judge advocate is an arbitrary and

capricious abuse of discretion”; (2) “[t]he BCNR’s decision on remand failed to articulate a

rational basis for delayed application of CSC in [this] case”; (3) “[t]he BCNR decision on

remand abandoned the Board’s mandate to correct error or injustice”; and (4) “[t]he proper time

to apply CSC is on original appointment.” (ECF 140 at 18, 20, 22, 24 (italics omitted).)

The defendant responds by arguing that the plaintiff is making several of the same

arguments rejected in Pedden I. The defendant argues that the BCNR fulfilled the Court’s

instructions for the remand and provided a rational explanation for the timing of the application

of CSC. (ECF 147 at 8.) The defendant also argues that the plaintiff only disagrees with the

policy implemented by the Navy Instruction, and that the Court does not have the authority to

dictate “to the military whom or when a service member may get promoted.” (Id. at 11.)

The Court first addresses the legality of the Navy Instruction and then considers whether

the BCNR’s decisions were arbitrary and capricious in upholding the Marine Corps’ timing of

the plaintiff’s CSC.

A. Not Contrary to Law

As outlined above, the timing of the award of CSC is governed by statute, the Defense

Directive, and the Navy Instruction. The Navy Instruction addressing when CSC applies to

Marine Corps judge advocates specifically covers the situation presented by the plaintiff: “[a]n

individual who was initially appointed as a Marine Corps Reserve officer in the Officer

Candidate (Law) Program . . . before graduation from law school shall be credited upon

designation as a judge advocate . . . .” SECNAVINST 1120.9A, ¶ 8c(3).

The plaintiff’s motion for judgment on the administrative record raises objections to the

Navy Instruction and timing of the application of CSC to the plaintiff. Some of these objections

were already addressed and rejected through the dismissal of Counts I, II, and IV of the

plaintiff’s complaint in Pedden I. 145 Fed. Cl. at 802. The plaintiff continues to argue that

“[d]elaying award of CSC until graduation from NJS is an arbitrary and capricious abuse of

discretion because it adds an additional requirement that prevents full application of the credit.”

(ECF 140 at 18.) He argues that the Navy Instruction, by adding the requirement for successful

completion of the NJS program before the award of CSC to Marine Corps judge advocates,

7

“adopts a process which both departs from the plain language of [the CSC statute and Defense

Directive] while simultaneously defeating the purpose of both.” (Id.)

As the plaintiff points out in his response brief, he raised this argument as part of the

basis for judgment under Count III of his amended complaint. (ECF 152 at 11; see ECF 27-1,

¶ 42 (“The delay in the application of CSC until designation as a judge advocate causes a delay

in promotion which renders the CSC of significantly less or no value. [The Navy Instruction] is

inconsistent with the applicable statutes and the Department of Defense Instruction.”).)

Although Count III largely survived Pedden I, in dismissing Counts I and II the Court addressed

the central issue of whether the Navy Instruction is consistent with the CSC statute and Defense

Directive:

The CSC statute itself simply commands the award of CSC to

eligible individuals under such regulations as may be prescribed. It

allows for the award of CSC to “a person who is receiving an

original appointment . . . , or designation in, or an assignment to” a

relevant officer category. It is otherwise silent as to the timing of

the award of CSC. See 10 U.S.C. § 12207(b)(1). Lt. Col. Pedden

received his CSC upon designation as a judge advocate, in

compliance with an express provision of the statute.

Similarly, the Defense Directive commands the award of CSC to a

“person being appointed, assigned, or designated . . . .”

DoDD 1312.3 § 4.1. The Navy Instruction commands the award of

CSC to Marine Corps judge advocates at designation.

SECNAVINST 1120.9A, ¶ 10b.

Lt. Col. Pedden received CSC at designation as expressly provided

for in the CSC statute, Defense Directive, and Navy Instruction. The

statute on its face cannot support his claim that the Marine Corps

was required to award CSC earlier, at the time of original

appointment.

145 Fed. Cl. at 797.7

7

As noted in footnote 1, supra, the statutory language of 10 U.S.C. § 12207(b)(1) was

amended by Congress, effective January 1, 2021. The amended language removes from

subsection (b)(1) the words, “or a designation in, or an assignment to, an officer category in

which advanced education or training is required.” Section 12207(b)(1) now reads as follows:

Under regulations prescribed by the Secretary of Defense, a person who is receiving

an original appointment as a reserve commissioned officer (other than a

commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps, and

8

The plaintiff’s argument reiterating his objections to the Navy Instruction’s alleged

inconsistency with the CSC statute and Defense Directive were addressed in Pedden I. The

plaintiff has not presented any new arguments that warrant a reconsideration of the earlier

conclusion. The Defense Directive and the Navy Instruction are not inconsistent with the plain

text of the CSC statute, as it read prior to the recent amendment. The BCNR’s decisions on

remand are not contrary to law.

B. Not Arbitrary and Capricious

The issue still pending in this case is narrow. Although the Court did not find the Navy

Instruction itself to be arbitrary and capricious in Pedden I, the Court left it to the Board in the

first instance to consider whether the Navy’s decision to apply CSC to the plaintiff upon his

designation as a judge advocate, and not upon his original appointment, was arbitrary and

capricious. 145 Fed. Cl. at 801. The Court found that “[t]he BCNR could not have properly

concluded that CSC was applied without legal error in Lt. Col. Pedden’s case without

considering whether the Secretary’s discretionary decision to apply CSC at designation was at

least rationally related to relevant factors.” Id. The case was remanded “to the BCNR so that it

[could] address Lt. Col. Pedden’s claim that the Navy Instruction’s requirement that CSC be

applied to Marine Corps judge advocates at designation instead of upon original appointment is

not a reasoned exercise of the Navy Secretary’s discretion.” Id. The Board addressed that issue

on remand and denied relief.

The plaintiff argues that the BCNR’s decisions on remand failed to articulate a rational

basis for delayed application of CSC and abandoned the Board’s mandate to correct error or

injustice. The defendant counters that the BCNR did articulate a rational basis for the timing of

CSC. The plaintiff’s arguments are unavailing.

The Secretary of the Navy had discretion in the administration of CSC. The CSC statute

required the military branches to provide, under regulations prescribed by the Secretary of

Defense, CSC for advanced education for “a person who is receiving an original appointment as

a reserve commissioned officer . . . or a designation in, or an assignment to, an officer category

who has special training or experience, or advanced education (if applicable), shall

be credited with constructive service for such education, training, or

experience . . . .

Although some other provision of law not argued to the Court may still support awarding

CSC only upon designation, this amended statute no longer supports that position. In effect,

Congress appears to have adopted the policy position for which the plaintiff has been advocating

in this case. Congress did not make the new statute retroactive in its application, so the Court

cannot apply the amended statute retroactively to the plaintiff. The plaintiff may request from

the Marine Corps the equitable application of the amended statute, especially because he has

been advocating for this outcome since 2004, when he first brought the issue to the attention of

the Marine Corps.

9

in which advanced education or training is required . . . .” 10 U.S.C. § 12207(b)(1). Consistent

with this statute and the Defense Directive, the Navy Instruction applied CSC to Marine Corps

judge advocates at the time of designation. The BCNR articulated a rational basis for the Navy

Secretary’s choice of designation, rather than original appointment, as the time to apply CSC to

Marine Corps judge advocates. Officers in other branches who fail the BLC are separated from

service. (AR 331.) In contrast, Marine Corps judge advocates who fail the BLC continue to

serve in the Marine Corps, just not as lawyers. (Id.) For that reason, the Board found “the

application of CSC for Marine Corps Reserve officers upon designation as a judge advocate not

to be arbitrary and capricious,” but instead found “this requirement to be necessary and prudent.”

(Id.) The Board also noted that the Navy Instruction is applied consistently to all Marine Corps

Reserve officers in the plaintiff’s position. (Id.)

The plaintiff objects to the Board’s explanation and disagrees with the policy reflected by

the Navy Instruction. He argues that the policy hinges upon “[t]he speculative and remote

possibility of academic underperformance by a negligible minority of NJS students,” and that the

policy therefore “cannot rationally support discriminating against all other CSC recipients as a

class, especially in light of the fact that many other Marine officers (including some in Plaintiff’s

own NJS class) advance as ‘due course’ officers because they attended OCS on completion of

baccalaureate studies and are not entitled to CSC.” (ECF 140 at 21.) The plaintiff further

developed this argument by obtaining an affidavit from Marine Corps Lt. Col. Nora Tyer-Witek.

She averred that, with respect to the timing of the BLC required for designation as a judge

advocate: “Students have no input at all, at any time, in th[e] process. They cannot and do not

determine what course they attend.” (AR 347, ¶ 5.) She also noted that “[t]he [BLC] had a very

high passage rate.” (Id.) The plaintiff argues that because students have no control over the

timing of the BLC they are assigned to attend, and because the Board’s rationale is based on the

low chance that a student might not pass the BLC, the application of CSC upon designation as a

judge advocate results in an “arbitrary, capricious, and inequitable application of CSC.”8

(ECF 99 at 2; see also ECF 140 at 20-22.)

After citing Lt. Col. Tyer-Witek’s evidence, the plaintiff relies on Prochazka v. United

States, 104 Fed. Cl. 774 (2012), for the proposition that military regulations are arbitrary and

capricious when they discriminate among service members without considering relevant

individual factors—i.e., discrimination between service members by “flipping a coin.” (ECF 140

at 19.) The plaintiff argues that the Navy Instruction discriminates among Marine Corps judge

advocates, depending on whether a Marine joins before or after law school and on which NJS

class the Marine is assigned to attend to secure designation as a judge advocate. (Id. at 19-20;

see also ECF 152 at 12-13.) Prochazka likewise involved a Navy instruction that produced

8

At oral argument, the plaintiff additionally argued that the Board’s explanation was an

after-the-fact rationale because the Board had never relied on it before in rejecting his claim.

The Board’s earlier lack of explanation, however, was specifically the ground for the Court’s

finding that the Board’s earlier decision was arbitrary and capricious. The Board’s explanation

would necessarily be newly provided; the Board followed the Court’s remand instructions.

10

disparate outcomes depending on whether an officer chose to enlist upon entering law school or

after graduation. 104 Fed. Cl. at 799.

The reasoning of Prochazka does not apply to this case, because the enabling statute here

is distinct. In Prochazka, the statute at issue was amended in a way that prompted an interpretive

response in the Navy’s updated instruction. See id. at 778-83. The court found that the Navy

instruction in Prochazka reflected “the Navy’s conclusory interpretation,” which led to arbitrary

and capricious disparate outcomes among Navy judge advocates. Id. at 797. The court found

that the Navy “elected to link an officer’s mandatory retirement date to the unrelated issue of

whether that officer chose to enlist in [the Judge Advocate General’s Corps] on entering law

school or after graduation.” Id. at 799. The Navy provided “no rational reason for such

discrimination.” Id.

The CSC statute at issue in this case, in contrast, is unambiguous and does not require the

Navy to interpret it beyond its plain meaning. The CSC statute and the Defense Directive

authorized the Navy to apply CSC upon designation, and the Navy has articulated a rational

reason for choosing designation, rather than original appointment, as the time for applying CSC

to Marine Corps judge advocates: Marine Corps judge advocates are reassigned if they fail the

BLC, rather than separated.

The plaintiff points out that the BCNR did not explain the reason for creating a disparity

between Marines who join before law school and those who join after law school. That

disparity, not the disparity among military branches, was the concern of the court in Prochazka

and has become the focus of the plaintiff’s argument now. The plaintiff, relying mostly on the

purpose of CSC, argues that CSC should have placed him in the same position as Marines who

joined before law school. The BCNR, however, had reason not to address the issue on remand.

That issue was addressed by the Board in 2017, and the Court upheld that portion of the Board’s

decision in Pedden I. The Board found that the regulations did “not say that the judge advocate

receiving CSC will be given the same promotion status as their most closely situated

officer . . . .” (AR 204.) In reviewing that finding, the Court found that the Marine Corps could

adopt the plaintiff’s position, “but no language in any relevant authority compels that outcome.”

Pedden I, 145 Fed. Cl. at 799. The Court remains so constrained by the language today, and it is

not arbitrary and capricious for the Board to have not readdressed the same issue on remand.

From the position of the plaintiff and his own experience, his objections to the policy

employed by the Marine Corps in the timing of the award of CSC may appear to make sense.

The plaintiff did, in fact, pass the BLC, and his peers who joined the Marine Corps before law

school were promoted before he was, reducing the effect of his CSC. If the plaintiff had not

successfully completed his military legal education, however, adopting his position would render

an injustice to his non-lawyer peers. Imagine that Lt. Col. Pedden had not passed the BLC and

was therefore never designated a judge advocate. If CSC were applied at the time of

appointment, as the plaintiff requests, then he would be unfairly benefited by CSC when he was

reassigned to another unit in the imagined hypothetical. At oral argument, the plaintiff argued

that such a Marine would probably not be unfairly benefited, because the Marine would receive a

negative fitness report for failing the BLC and would be inexperienced in the new field. This

response, however, does not address the main concern. Such a Marine would have received his

11

CSC for attending law school despite not being able to serve as a lawyer, and he would have

unearned seniority over his peer line officers in the non-legal unit. The Marine Corps’ policy

addresses this potential.

The judicial role in reviewing decisions of the military records-correction boards is

limited; the BCNR’s decision must be upheld “unless it is arbitrary, capricious, contrary to law,

or unsupported by substantial evidence.” Barnick, 591 F.3d at 1377. As the Federal Circuit has

held, “[a] court may appropriately decide whether the military followed procedures because by

their nature the procedures limit the military’s discretion.” Murphy v. United States, 993 F.2d

871, 873 (Fed. Cir. 1993). The Federal Circuit has equally warned that “[t]he court is not called

upon to exercise any discretion reserved for the military, it merely determines whether the

procedures were followed by applying the facts to the statutory or regulatory standard.” Id.

Despite the plaintiff’s long-held disagreement with the application of CSC to Marine

Corps judge advocates only upon designation, the BCNR’s decisions on remand are consistent

with the CSC statute, the Defense Directive, and the Navy Instruction. The case was remanded

in 2019 because the BCNR had previously failed to consider and provide a rationale for the

Marine Corps’ application of the plaintiff’s CSC. The BCNR’s decisions on remand have now

explained that rationale: unlike other military branches, Marines who fail to become judge

advocates are reassigned to non-legal duties, rather than separated. The Board’s explanation

provides a rational basis for the award of CSC to the plaintiff at the time of his designation as a

judge advocate, rather than at the time of his original appointment. The role of judicial review of

the Board’s decisions is not to evaluate the reasonableness of the Marine Corps’ CSC policy but

only to evaluate the reasonableness of the Board’s explanation. See Heisig v. United States, 719

F.2d 1153, 1156 (Fed. Cir. 1983) (“[C]ourts cannot substitute their judgment for that of the

military departments when reasonable minds could reach differing conclusions on the same

evidence.”). Faced with the BCNR’s reasonable application of the unambiguous regulation on

remand, the plaintiff has not provided a legal basis to adjudge the BCNR’s decisions arbitrary

and capricious.

V. CONCLUSION

In Pedden I, Count III of the plaintiff’s complaint was remanded to the BCNR for a

rational explanation of the timing of the application of CSC to the plaintiff. On remand, the

BCNR issued two decisions explaining that the unique nature of Marine Corps judge advocates

supported the delayed application of CSC to Marine Corps judge advocates until they are

designated as judge advocates. Credit upon designation was an option expressly authorized by

the CSC statute. The Board’s decision is a straightforward application of the relevant regulations

implementing that statute, and its reasoning provides a rational explanation of the justification

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for the delayed application of CSC to Marine Corps judge advocates. Nothing more is required

of the Board.

The plaintiff’s motion for judgment on the administrative record (ECF 140) is DENIED,

and the defendant’s cross-motion for judgment on the administrative record (ECF 147) is

GRANTED.

The Clerk of Court is DIRECTED to enter judgment accordingly. No costs are awarded.

It is so ORDERED.

s/ Richard A. Hertling

Richard A. Hertling

Judge

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