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Wagner v. Geren

May 5, 2009

GEORGE W. WAGNER, JR., PLAINTIFF,
v.
PETE GEREN, SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 4, 9

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT;GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the court on the parties' cross-motions for summary judgment. In this action, brought under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, the plaintiff seeks reversal and remand of an Army Board for Correction of Military Records' ("ABCMR") decision denying the plaintiff a 20-year service retirement and a medical disability retirement. The defendant argues that there is sufficient evidence in the record to support the ABCMR's holdings. Because the plaintiff has demonstrated that the ABCMR violated the APA by relying on non-existent evidence and, thus, denying him a 20-year service retirement, the court remands that issue to the ABCMR to make a decision in accordance with this opinion. The record, however, provides sufficient evidence to support the ABCMR's conclusion that the plaintiff is not entitled to a medical disability retirement, and accordingly, the court upholds that decision.

II. FACTUAL & PROCEDURAL BACKGROUND

A. The Plaintiff's Active Duty History

The plaintiff enlisted in the Army on June 28, 1963 and served on active duty until November 21, 1979, when he was honorably discharged because of lower back pain. Compl. ¶ 5; Def.'s Statement of Material Facts ("Def.'s Statement") ¶¶ 1-2; Administrative Record ("A.R.") at 67, 653. On January 16, 1986, the plaintiff enlisted in the Army Reserve National Guard ("ARNG") and was assigned to the District of Columbia ARNG ("DCARNG"). Compl. ¶ 6; Def.'s Statement ¶ 4. On July 3, 1994, the plaintiff returned to active duty as part of the Active Duty Special Work ("ADSW") program. Compl. ¶ 7; Def.'s Statement ¶ 6; A.R. at 10. According to the defendant, before reentering active duty, the plaintiff was required to execute DA Form 1058-R, which waived the applicability of 10 U.S.C. § 1163(d) (1993) (the "sanctuary provision")*fn1 that protects reservists from being involuntarily released from active duty if they are within two years of reaching retirement. Def.'s Mot. at 9. The defendant does not have a copy of the form, Compl. ¶ 18; Def.'s Mot. at 11-12; Def.'s Statement ¶ 52.a; A.R. at 76, and the plaintiff alleges that he never signed the form, Compl. ¶ 17.

The plaintiff's orders placing him in the ADSW program incorrectly cited 32 U.S.C. § 502(f)*fn2 as authority under which the plaintiff was assigned to duty. A.R. at 9, 78. That citation was subsequently changed to note that the authorizing statute was 10 U.S.C. 672(d).*fn3 Id.

B. The IRS Levy

On July 1, 1994, the Internal Revenue Service ("IRS") placed a levy on the plaintiff's wages, which the plaintiff arranged to have lifted. Compl. ¶¶ 19, 21, 55; Def.'s Statement ¶¶ 5, 8. On August 26, 1994 the Department of Treasury faxed a notice to the Defense Finance and Accounting Service ("DFAS")*fn4 indicating that the plaintiff's wages were released from the levy. Compl. ¶ 21; Def.'s Statement ¶ 8; A.R. at 174. Despite this notification, the Army deducted $1,238.13 from the plaintiff's August 31, 1994 wages and submitted that money to the IRS.

A.R. at 633. This deduction placed the plaintiff in financial hardship and DFAS referred him to the IRS for resolution of the overpayment. Compl. ¶ 24; A.R. at 174-175. As a result of this financial hardship, on September 2, 1994, the plaintiff's supervisor sought the assistance of an Army Emergency Relief officer and requested immediate financial assistance for the plaintiff.

A.R. at 172. The record does not contain information concerning the result of this request, A.R. at 4, and the parties make no mention of it in their submissions. The plaintiff's supervisor also sought to extend the plaintiff's ADSW program assignment by 179 days. Id. The request to extend the plaintiff's ADSW program assignment was denied, and although the plaintiff had worked into the first week of October awaiting a decision on this request, his effective separation date was September 29, 1994. Pl.'s Statement of Material Facts ("Pl.'s ...


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