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Hill v. Geren

February 11, 2009


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


This matter is before the Court on the parties' cross-motions for summary judgment. Plaintiff, a veteran of the Air Force and the Army National Guard who was recalled to active duty in 2006, brought this action under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., for judicial review of the August 16, 2007 denial by the Army Board for Correction of Military Records ("ABCMR" or "the Board") of his pro se application to correct his military record to reflect his promotion to colonel. By Minute Order dated January 18, 2008, this Court granted defendants' consent motion for a voluntary remand to the Board so that it could further analyze and discuss the competing Army regulations surrounding plaintiff's retirement and promotion. Upon reconsideration, the ABCMR issued an opinion on May 13, 2008, again denying plaintiff's request to correct his military records to reflect his promotion. Plaintiff then filed an amended complaint challenging the Board's decision on reconsideration. For the reasons explained herein, defendant's motion for summary judgment will be denied and plaintiff's cross-motion for summary judgment will be granted, and the case will be remanded to the ABCMR for reconsideration in light of this Memorandum Opinion.


Plaintiff Michael D. Hill was originally commissioned as an Air Force officer and began active federal service ("AFS") on January 24, 1973. (Administrative Record ["A.R."] 5, 165.) In 1982, plaintiff was honorably discharged from the Air Force in Guam, joined the Guam Army National Guard as a captain, and was ordered to active duty in Active Guard Reserve ("AGR") status. (A.R. 37, 159-65.) In 1984, plaintiff was promoted to major. (A.R. 158.) Around that time, he also began working at the National Guard Bureau ("NGB") office in Washington, DC, first as a Plans and Programs Officer (A.R. 118), and later as a Personnel Staff Officer, Management Information Systems Administrator, and Program Analyst. (See A.R. 97, 110, 112.) In 1990, plaintiff was promoted to lieutenant colonel, and in 1991, he was separated from the Guam Army National Guard and joined the New York Army National Guard ("NYARNG"). (A.R. 37, 144-46.) From 1991 through 1994, plaintiff continued to serve as an AGR officer with the NGB in Washington in various capacities, including as the Assistant Executive to the Chief of the NGB. (A.R. 87-96.) Plaintiff's duties during those years included preparing speeches and policies, assisting the Chief in his role as advisor to the Chiefs of Staff for the Army and Air Force, and serving as a liaison to federal, state, and local government officials to ensure their understanding of National Guard missions, policies, and priorities. (See id.) As a lieutenant colonel, plaintiff consistently received superior performance evaluations that urged that he be retained on active duty and promoted to colonel. (See A.R. 87-98.)

At the time, regulations required AGR commissioned officers on active duty (such as plaintiff) to retire after completing 20 years of AFS unless they received an extension of their service. See, e.g.,Army Regulation ("Army Reg.") 135-18 ¶ 4-12 (July 1985) ("All AGR officer personnel will be released from active duty or full-time duty when they have attained 20 years and 1 month of qualifying service for retirement purposes . . . unless they have been approved for voluntary retention in accordance with A[rmy] R[egulation] 635-100.") (Ex. B to Defs.' Mot. for Summ. J. ["Defs.' Mot."].) Because plaintiff received his commission on January 24, 1973, January 24, 1993 was the approximate date on which he reached 20 years of AFS. (Cf. A.R. 82 (noting that plaintiff had completed 22 years and 8 days of AFS on January 31, 1995).) On June 24, 1992, the Secretary of the Army extended plaintiff's active duty commitment to December 31, 1993. (A.R. 140 (Secretary's orders); see also A.R. 5.) Although plaintiff was subsequently ordered to retire effective January 1, 1994, those orders were later rescinded. (A.R. 6.) On March 10, 1994, plaintiff received new orders that further extended his active duty commitment with the NGB for a "[v]oluntary, [i]ndefinite" period. (A.R. 133-34 (Secretary's orders); see also A.R. 6.)

From July through August of 1994, the Reserve Component Selection Board ("RCSB") convened and selected the plaintiff (and others) for promotion to colonel. (A.R. 37.) On October 14, 1994, the NGB received a memorandum notifying it that plaintiff had been selected for promotion, with a "Promotion Eligibility Date" ("PED") of June 5, 1995.*fn1 (A.R. 6, 16.) However, plaintiff did not receive a copy of that memorandum or its instructions until August 28, 2007. (A.R. 16.) In October 1994, unaware that he had been selected for promotion, plaintiff requested voluntary retirement and was placed on transitional leave as of November 14, 1994, with an effective date of retirement of January 31, 1995. (A.R. 18, 82.) Due to administrative error, plaintiff's effective date of retirement was incorrectly registered as November 14, 1994, and he was transferred prematurely on that date to the Retired Reserve. (A.R. 6, 18, 66.).

On November 17, 1994, the RCSB's list of promotion selections was forwarded to the U.S. Senate for confirmation. (A.R. 6.) The list was published shortly thereafter in the Army Times, where plaintiff learned of his selection for promotion for the first time. (A.R. 16.) Plaintiff immediately contacted the NGB and NYARNG regarding his promotion and, on January 4, 1995, submitted the necessary paperwork to the NGB. (Id.) The NGB recommended to NYARNG that plaintiff be promoted to colonel in the Army National Guard with an assignment at the NGB, and on January 20, 1995, NYARNG recommended that plaintiff's promotion be approved. (A.R. 6-7, 37, 68-71, 73-74.) On January 25, 1995, the NYARNG's Adjutant General issued orders promoting plaintiff to colonel, with payment at his new grade conditioned upon federal recognition of the promotion. (A.R. 67.)

On January 27, 1995, the NYARNG issued a correction to plaintiff's separation documents, reflecting that his retirement was effective January 31, 1995, and not (as previously recorded) November 14, 1994. (A.R. 66.) On January 31, 1995, plaintiff received an honorable discharge for voluntary retirement from active duty service with 22 years and 8 days of AFS, pursuant to Chapter 4 of Army Reg. 635-100. (See A.R. 6, 37, 65, 82; Am. Compl. ¶ 16.)*fn2 Plaintiff was transferred to the Retired Reserve list effective February 1, 1995. (A.R. 82.) The Senate confirmed the RCSB's 1994 promotion selections on February 6, 1995. (A.R. 7.) In April 1995, the NGB informed NYARNG that because plaintiff had retired prior to Senate confirmation of his promotion, NYARNG could not legally have promoted plaintiff. (A.R. 63.) Accordingly, plaintiff was never promoted to colonel.

On February 14, 2006, plaintiff was recalled from retirement to active duty, in the rank of lieutenant colonel, with the U.S. Army Human Resources Command in support of Operation Noble Eagle. (A.R. 128.) On December 28, 2006, plaintiff requested that the ABCMR correct his military records to reflect that he was promoted to colonel prior to his retirement in 1995. (See A.R. 55-58; see also A.R. 18-19.) The ABCMR sought an advisory opinion from the NGB, which recommended that plaintiff be deemed to have retired as a colonel effective January 31, 1995. (A.R. 48.) However, on August 16, 2007, the ABCMR denied plaintiff's request for a records correction. (A.R. 33-43.) The ABCMR reasoned that plaintiff was ineligible for promotion because "he was not in an active status" when the Senate confirmed the promotion board's selections. (A.R. 42.) The ABCMR's denial also stated that plaintiff's retirement upon 20 years of AFS was "mandated, with or without the promotion . . . ." (Id.).

Plaintiff thereafter filed his initial complaint with this Court on November 13, 2007, seeking judicial review of the ABCMR's decision. On January 18, 2008, the Court granted the parties' consent motion to voluntarily remand the case so the ABCMR could reconsider several of the plaintiff's alternative arguments. On remand, plaintiff again argued that Army Reg. 635-100 ¶ 4-12e (May 1989) permitted him to withdraw his pending retirement application and accept his promotion (A.R. 4, 16), and that but for his erroneous placement on the retired list on November 14, 1994, instead of January 31, 1995, the Army "should have offered [him] the opportunity to accept the promotion and continue active service as required by Army regulation." (A.R. 15; see also A.R. 18-19 (requesting retroactive promotion due to "'perfect storm' of administrative failures").)

On May 13, 2008, the ABCMR issued its decision on reconsideration, once again denying plaintiff's application to correct his military records. (A.R. 1-14.) The Board indicated that because plaintiff "was on active duty in an AGR status[,] his retirement was required by regulation," because the Army had a "20-years-of-AFS-and-retire policy" for AGR officers. (See A.R. 10-11.) The Board concluded that if plaintiff had been a "reasonably prudent senior commissioned officer" who kept himself "well-informed" about his future in the AGR program, "he should have known that he was not going to be offered any further waivers" of the retirement policy. (A.R. 11.)

On August 1, 2008, plaintiff filed an amended complaint [Dkt. # 12] challenging the Board's decision as arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. (Am. Compl. ¶ 51.) The amended complaint requested that the Board's decision be vacated and that the Court order the U.S. Army to retroactively promote the plaintiff to colonel. (Id. ¶ 53.) On September 19, 2008, defendants moved for summary judgment [Dkt. # 16], and on November 17, 2008, plaintiff cross-moved for summary judgment [Dkt. # 20] and requested that the Court set aside the ABCMR's May 13, 2008 decision and remand for further adjudication.



The Secretary of the Army may act through a civilian board to correct any Army record when he "considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1). Courts review the decisions of military corrections boards "under an 'unusually deferential application of the arbitrary or capricious standard' of the Administrative Procedures Act." Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (quoting Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)). A party seeking review of a Board decision bears the burden of overcoming "'the strong but rebuttable presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully and in good faith.'" Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997) (quoting Collins v. United States, 24 Cl. Ct. 32, 38 (1991), aff'd, 9 ...

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