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McDonough v. Mabus

United States District Court, District of Columbia

November 29, 2012

Robert McDONOUGH, Plaintiff,
Raymond Edwin MABUS, Jr., Secretary of the Navy, Defendant.

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[Copyrighted Material Omitted]

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Gary R. Myers, Gary Myers & Associates, Weare, NH, for Plaintiff.

Carl Ezekiel Ross, U.S. Attorney's Office, Washington, DC, for Defendant.


BERYL A. HOWELL, District Judge.

The plaintiff, Robert McDonough, an active duty Naval Service Lieutenant, brings this action against defendant Ray Mabus, Jr., in his official capacity as Secretary of the Navy, under the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701 et seq. (2000), alleging that the Board for Correction of Naval Records (" BCNR" ) abused its discretion in refusing to grant the plaintiff full credit for the commissioned service he performed in the Navy prior to entering the Navy Judge Advocate General's Corps (" Navy JAGC" ) in 2006. The plaintiff alleges specifically that, in being limited to 48 months of prior commissioned service credit when his rank was calculated as he entered the Navy JAGC, he was denied 41 months of active duty service for the period he served as a Lieutenant from May 1, 2003 through September 29, 2006, see Complaint (" Compl." ), ECF No. 1, ¶ 19, and that the BCNR's interpretation of the statutory provisions, 10 U.S.C. §§ 533 and 12207, governing the calculation of his prior commissioned service credit was arbitrary and capricious. See Mem. in Supp. of Pl.'s Cross Mot. for Summ. J. and Opp'n to Def.'s Mot. for Summ. J. (" Pl.'s Mem." ), ECF No. 21-2, at 1; Compl. ¶ 19. The plaintiff requests that the Court remand the agency decision so that the BCNR may " grant Plaintiff prior commissioned service credit ..., restore Plaintiff's lineal number, date of rank, and direct Plaintiff's record be placed before a special selection board for promotion consideration consistent with Plaintiff's year group of 1999." ECF No. 21-3 (" Pl's. Proposed Order" ).[1]

Pending before the Court are cross-motions for summary judgment. See ECF Nos. 18, 21. For the reasons explained below, the plaintiff's motion for summary judgment is DENIED and the defendant's motion for summary judgment is GRANTED.



1. The Plaintiff's Enlistment in the United States Navy

On January 22, 1999, the plaintiff entered the United States Naval Service Officer Candidates School (" OCS" ) for training to become a commissioned officer of the United States Navy.[2] Pl.'s Statement of Facts (" Pl.'s Facts" ), ECF No. 21-1, ¶ 1; Def.'s Statement of Facts (" Def.'s Facts" ), ECF No. 18, ¶ 1; Compl. ¶ 5.

The plaintiff completed OCS, and, on April 23, 1999, he was commissioned as an Ensign (O-1) in the United States Navy Reserve-active (" USNR-active" ). Compl. ¶ 6; Def.'s Mem. in Supp. of Mot. for Summ. J. (" Def.'s Mem." ) at 2. Two years later, on April 23, 2001, the plaintiff was

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promoted to Lieutenant Junior Grade (O-2). Compl. ¶ 7; Def.'s Facts ¶ 3; Pl.'s Facts ¶ 3. On May 1, 2003, the plaintiff was promoted to Lieutenant, at which point he was assigned lineal number 09531800 and a date of rank of May 1, 2003.[3] Compl. ¶ 8; Pl.'s Facts ¶¶ 4-5; Def.'s Facts ¶¶ 4-5.

In August 2003, the plaintiff, while still on active duty in the Navy, began a night school program at Roger Williams Law School in Rhode Island while continuing his naval service during the day. Compl. ¶ 9; Pl.'s Facts ¶¶ 6-7; Def.'s Facts ¶¶ 6-7.

On December 31, 2005, before he graduated from law school, the plaintiff was released from active duty " while retaining an obligation in the Individual Ready Reserve (" IRR" ) until January 22, 2007." Def.'s Facts ¶ 8; Pl.'s Facts ¶ 8; Compl. ¶ 10. The IRR is a component of reserve forces where reservists do not participate in the daily drills and activities of their service branch but are eligible for mobilization on command of the Secretary of the Navy. See 10 U.S.C. § 10144. The plaintiff was approved to become an active reservist on January 30, 2006, see Pl.'s Facts ¶ 9; Def.'s Facts ¶ 9.

2. The Plaintiff's Appointment to the Navy Judge Advocate General's Corps

In May 2006, while still retaining a reserve obligation in the IRR, the plaintiff graduated from law school. Compl. ¶ 12; Def.'s Facts ¶¶ 6-7. On August 25, 2006, the plaintiff was recommissioned as a reserve Ensign in the Navy JAGC student program pursuant to 10 U.S.C. § 12203.[4] Compl. ¶ 14; Pl.'s Facts ¶ 10; Def.'s Facts ¶ 10; AR Appx. 3.[5] On September 29, 2006, the plaintiff passed the bar exam, satisfying the final " professional qualification" required for an active-duty appointment in the Navy JAGC. Compl. ¶¶ 16-17; Pl.'s Facts ¶ 11; Def.'s Facts ¶ 11. On that date, the plaintiff received an active-duty appointment to Lieutenant in the Navy JAGC, the same rank he previously held upon his release from active duty. Compl. ¶ 16; Pl.'s Facts ¶ 12; Def.'s Facts ¶ 12.

Concurrently with his new appointment, the plaintiff's lineal number was modified from 09531800 to 13538600, and his date of rank as Lieutenant was modified from May 1, 2003 to September 29, 2006. Compl. ¶ 18, Pl.'s Facts ¶ 13; Def.'s Facts ¶ 13.


At issue in this lawsuit is the calculation of the plaintiff's rank when he entered the Navy JAGC in 2006. See Compl. ¶¶ 18, 19. The defendant contends in its Motion for Summary Judgment that the plaintiff's date of rank was calculated correctly pursuant to 10 U.S.C. § 533, Department of Defense Directive 1312.3 (" DoD Directive 1312.3" or " DODDIR 1312.3" ), and Chief of Naval Operations Instruction 1120.11 (" Naval Operations Instruction 1120.11" or " OPNAVINST 1120.11" ). See Def.'s Facts ¶ 14; AR Appx. at 3 (BCNR decision explaining how the plaintiff's entry grade credit was calculated). The plaintiff argues, to the contrary, that the " [d]efendant miscalculated Plaintiff's date of rank based on a 48 month limit on prior commissioned service credit contained in Naval Operations Instruction 1120.11, without regard

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to the prior commissioned service credit savings provisions contained in 10 U.S.C. [§ ]533(a)(1) and 10 U.S.C. [§ ]12207(a)(1)." Pl.'s Mem. at 3. As noted, the plaintiff argues that this alleged miscalculation " had the effect of not recognizing ... a period of 41 months [ ] for promotion purposes," in alleged violation of " the statutory guidance of 10 U.S.C. [§ ]533(a)(1), (2), and [§ ]533(f)." Compl. ¶¶ 19-20, 24. A review of the relevant statutory and regulatory provisions provides the necessary background for resolving this dispute.

1. Statutory Provisions at Issue

At the outset, the Court must address a point of confusion in the challenged BCNR decision of April 1, 2011 and the parties' briefing, namely whether 10 U.S.C. § 533 or 10 U.S.C. § 12207 is the statute under which the plaintiff's prior commissioned service credit was calculated upon his appointment in 2006 as a Lieutenant in the Navy JAGC.[6] These two statutes, in relevant part, are substantively nearly identical, with the distinction being that 10 U.S.C. § 533 applies to " service credit upon original appointment as a commissioned officer" and 10 U.S.C. § 12207 applies to service credit " of a person receiving an original appointment as a reserve commissioned officer." [7] Furthermore, both of these statutes are implemented by the regulations at issue in this case, namely DoD Directive 1312.3 and Naval Operations Instruction 1120.11.

The BCNR, in its final decision of April 1, 2011 stated that the plaintiff's " Regular appointment in the [JAGC] was computed in accordance with [10 U.S.C. § 533]." AR Appx. at 3. Before making that decision, the BCNR had requested a legal opinion from the Department of Navy's Navy Personnel Command (" NPC" ) regarding the plaintiff's request for a correction of his naval record to provide him the 41 months of prior service credit he believed he was owed. AR Appx. at 2. The NPC stated in its advisory opinion for the BCNR that " Applicant's grade and rank within grade at the time of his appointment into the JAGC Student Program was done pursuant to 10 U.S.C. § 12207 (Service Credit Upon Original Appointment [As a Reserve Commissioned Officer] ) and not 10 U.S.C. § 533, which applies to Regular appointments." AR Appx. at 6. The BCNR " substantially concurred with the comments contained in the advisory opinion, except to note that entry grade credit (EGC) for [the plaintiff's] Regular appointment in the [JAGC] was computed in accordance with title 10 of the United States Code, section 533, not section 12207." AR Appx. at 3. The BCNR decision offers no further clarification or reason for its exception to the NPC legal opinion.

Consistent with the BCNR decision, the defendant's Motion for Summary Judgment and Statement of Facts refer to 10 U.S.C. § 533. See Def.'s Mem. at 1

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(" Plaintiff's date of rank calculation ... must be calculated in accordance with section 533 ..." ); id. at 4 (" Defendant calculated Plaintiff's date of rank based on 10 U.S.C. section 533 ..." ); see id. at 10-11 (excerpting 10 U.S.C. § 533 as the only statute discussed at length under a heading entitled " Applicable Federal Statutes and Navy Regulations" ); Def.'s Facts ¶ 14 (" Defendant calculated Plaintiff's date of rank pursuant to the calculations set forth in 10 U.S.C. § 533, DoD Directive 1312.3, and Naval Operations Instruction 1120.11" ); id. ¶ 16 (" Defendant calculated Plaintiff's date of rank based on 10 U.S.C. section 533 ..." ). The Defendant's Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply Brief in Support of Defendant's Motion for Summary Judgment (" Def.'s Reply" ), however, states that 10 U.S.C. § 12207(a) is " the statute upon which Plaintiff's prior service credit was actually calculated." Def.'s Reply, ECF No. 24, at 3 (excerpting both 10 U.S.C. § 533(a)(2) and 10 U.S.C. § 12207(a)(2)). Nowhere does the defendant address this apparent change in its view of the correct statutory basis for calculation of the plaintiff's prior service credit.

The plaintiff's filings do not clarify this matter. The plaintiff's Complaint, filed before the final BCNR decision at issue (the final BCNR decision was made on remand from this Court), states that 10 U.S.C. § 533 applies to the calculation of the plaintiff's date of rank, and does not even mention 10 U.S.C. § 12207. See Compl. ¶¶ 24, 34-35. The Plaintiff's Cross-Motion for Summary Judgment, however, states that " the calculation of Plaintiff's date of rank is governed unambiguously by 10 U.S.C. § 533 and 10 U.S.C. § 12207." Pl.'s Mem. at 1; see also id. at 3, 5, 8, 15; see also Pl.'s Facts ¶ 30 (" Plaintiff now asks that this Court declare that BCNR's failure to grant relief in Plaintiff's case was arbitrary, capricious, an abuse of discretion and not in accordance with law by failing to apply 10 U.S.C. [§ ]533 and 10 U.S.C. [§ ]12207." ); see id. (" Plaintiff seeks an order remanding his case to BCNR with instructions consistent with the provisions contained in 10 U.S.C. [§ ]533 and 10 U.S.C. [§ ]12207...." ). Since this Court's reasoning applies regardless of whether the plaintiff's commissioned service credit was computed under 10 U.S.C. § 533 or 10 U.S.C. § 12207, the Court need not decide which of these two statutes applied. Since the Complaint, the final BCNR decision, and the Defendant's Motion for Summary Judgment all refer to " 10 U.S.C. § 533," the Court will primarily refer to the statute at issue in this case as 10 U.S.C. § 533, with points of clarification as needed with respect to 10 U.S.C. § 12207.

2. 10 U.S.C. § 533

Section 533 of Title 10 of the United States Code governs the calculation of service credit for a " person receiving an original appointment in a commissioned grade" in the United States Navy. According to 10 U.S.C. § 533(a)(2), " [t]he Secretary of Defense shall prescribe regulations, which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps, to authorize the Secretary of the military department concerned to limit the amount of prior active commissioned service with which a person receiving an original appointment may be credited under paragraph (1), or to deny any ...

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