Johnson v. United States

Motion for Judgment on the Administrative Record; 10 U.S.C. § 3914; Army Regulation 635-200 ¶ 2-6(b); Justiciability

Charles Davidson Swift, Swift & McDonald, P.S., Richardson, TX, counsel for Plaintiff.

Daniel Kenneth Greene, U.S. Department of Justice, Civil Division, Washington, DC, counsel for Defendant.

OPINION AND ORDER

THOMPSON M. DIETZ, JUDGE

Plaintiff Barry C. Johnson brings this claim against the United States for retirement pay following his involuntary separation from the United States Army (the "Army"). Johnson contends that, because he reached twenty years of service while a recommendation for his separation was pending, an Army regulation required the Army to afford him the opportunity to request retirement in lieu of separation. The government argues that the regulation applies only if a servicemember has reached twenty years of service before being recommended for separation. Before the Court are the government's motion to dismiss under Rules 12(b)(1) or 12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC") or for judgment on the administrative record, and Johnson's cross-motion for summary judgment. Though Johnson's claim survives the government's motion to dismiss, the Court finds that the Army correctly interpreted its regulation. Accordingly, the government's motion for judgment on the administrative record is GRANTED. Johnson's cross-motion is DENIED.

I. BACKGROUND

The facts material to the legal question at issue are undisputed and relatively few in number. See Pl.'s Cross-Mot. at 2 n. 1, ECF No. 12 ("Plaintiff . . . does not dispute the accuracy of the administrative record and agrees that there is no area of genuine factual dispute[.]"). They pertain almost entirely to the chronology of three events-a recommendation that Barry Johnson

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be separated from the Army, Johnson's reaching twenty years of service creditable towards retirement, and Johnson's ultimate separation-and their effect on the applicability of Army Regulation 635-200 ¶ 2-6(b).

Army Regulation 635-200 ¶ 2-6(b) provides:

b. A Soldier who has completed 20 or more years of active service creditable toward retirement and for whom separation is recommended to HQDA will be given the opportunity of applying for retirement

(1) He/she will be told that authority to submit the application does not assure that it will be approved

(2) DA Form 2339 (Application for Voluntary Retirement) will be attached when the case is sent to HQDA or a statement will be included that the Soldier was given the opportunity but declined to apply for retirement

Army Reg. 635-200 ¶ 2-6(b) (2005) (emphasis added).

By way of further factual background, Johnson enlisted in the Army Reserve on November 4, 1991. Compl. ¶ 10. Johnson periodically accrued time creditable towards active service before officially beginning active service on October 10, 1992. Id. ¶¶ 10-12. On August 3, 2011, Johnson submitted a request to retire effective June 30, 2012, id. ¶ 17, pursuant to an Army regulation that allows a soldier with nineteen years of creditable service to request prospective retirement upon completion of twenty years of service-the time at which a soldier is "eligible, but not entitled, to retire upon request." Army Reg. 635-200 ¶ 12-7(a) (2005); see also 10 U.S.C. § 3914. At the time of his request, Johnson had approximately nineteen years and two months of creditable service and was due to reach the twenty-year mark on or about June 5, 2012. Compl. ¶¶ 17, 25.

In the months prior to Johnson's retirement request, he received two non-judicial punishments ("NJPs") for assault against a fellow officer and for use of marijuana. Compl. ¶¶ 14-16. On September 7, 2011, the Army informed Johnson that it had initiated administrative separation proceedings based on the conduct that led to Johnson's NJPs. Compl. ¶ 18. Because of these proceedings, the Army denied Johnson's retirement request on November 3, 2011. Id. ¶ 19.

On December 7, 2011, a separation board convened and recommended Johnson for discharge under honorable conditions for his wrongful use of marijuana (though it found that he had not committed the alleged assault). Id. ¶¶ 20-21; AR 127.^[1] Because Johnson had completed more than eighteen years of active service, Army regulations required the separation board's recommendation to be sent to the Secretary of the Army's office at Army Headquarters

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("HQDA") for approval. Compl. ¶ 22; Army Reg. 635-200 ¶ 2-12(c)(2) (2005). The Army sent the separation paperwork to HQDA on February 16, 2012, AR 12 ¶ 16, at which time Johnson had completed approximately nineteen years and eight months of creditable service. Compl. ¶ 23.

On September 11, 2012, the Assistant Secretary of the Army (Manpower and Reserve Affairs) approved the separation board's recommendation for Johnson's administrative discharge from the Army. Compl. ¶ 28. Johnson was formally separated on September 28, 2012. Id. ¶ 29. At the date of discharge, Johnson had completed approximately twenty years, four months, and twenty-eight days of creditable service, having surpassed twenty years of service on or about June 5, 2012, while the separation board's recommendation was pending before HQDA.^[2] Id. ¶¶ 27-29.

II. PROCEDURAL HISTORY

In 2015, Johnson petitioned the Army Board for Correction of Military Records ("ABCMR") to upgrade his characterization of service to honorable, change his reason for separation to retirement, and increase his grade at separation. AR 4. Johnson argued that the Army, by not informing Johnson or the Secretary of Johnson's eligibility to request retirement in lieu of separation upon reaching twenty years of service, violated the mandatory language of Army Regulation 600-235 ¶ 2-6(b) that "[a] soldier who has completed 20 or more years of active service creditable toward retirement and for whom separation is recommended to HQDA will be given the opportunity of applying for retirement." AR 26-27. Though he had not yet reached twenty years of service when the separation board submitted its recommendation to HQDA, Johnson argued that the requirements of ¶ 2-6(b) should have applied because it was foreseeable that Johnson would reach twenty years of service, as indeed proved true, "prior to Secretarial action on the request to administratively discharge him." AR 27. As a result of the perceived error, "the separation authority did not have the ability to consider approving retirement as an alternative to administratively separating [Johnson] as required by regulation." AR 28.

The ABCMR denied Johnson's petition in 2016. AR 3. Regarding the alleged violation of Army Regulation 600-235 ¶ 2-6(b), the board stated:

In accordance with the governing regulation, Soldiers who have completed 20 or more years and for whom separation is recommended to HQDA will be given the

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opportunity of applying for retirement. At the time the action was submitted to HQDA [Johnson] had 19 years, 8 months, and 13 days of active federal service

AR 17 ¶ 10 (emphasis in original). The board concluded that Johnson's "administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights."^[3] AR 17 ¶ 11.

Johnson brought his complaint in this Court on July 27, 2017, renewing his claim that the separation procedure violated Army Regulation 635-200 ¶ 2-6(b). See generally Compl. Specifically, Johnson argues that "if a soldier reaches twenty years of service prior to separation, then Paragraph 2-[6(b)] of AR 635-200 further requires that the soldier must be offered the opportunity to submit a request for retirement . . . as an alternative to administrative separation or continued service." Id. at 6. As a result of the alleged regulatory violation, Johnson seeks the value of his "lost military retirement benefits," estimated to be $194, 872. Id. at 13-14.

The government filed a motion to dismiss Johnson's complaint under Rule 12(b)(1) for lack of subject-matter jurisdiction or under Rule 12(b)(6) for failure to present a justiciable controversy. See generally Def.'s Mot., ECF No. 7. Alternatively, the government moves for judgment on the administrative record, arguing that Army Regulation 635-200 ¶ 2-6(b) applies only to a soldier who has reached twenty years of service before being recommended for separation.^[4] Id. at 16-17. Johnson puts forth his opposing interpretation in his cross-motion for summary judgment, which the Court treats as a cross-motion for judgment on the administrative record due to the presence of an administrative record in this case. See RCFC 52.1 Rules Committee Note (2006 Adoption) ("Summary judgment standards are not pertinent to judicial review upon an administrative record."); Hwang v. United States, 94 Fed.Cl. 259, 268 (2010), aff'd 409 Fed.Appx. 348 (Fed. Cir. 2011) (treating a motion for summary judgment as a motion for judgment on the administrative record).

III. DISCUSSION

Johnson's claim presents a justiciable controversy within this Court's jurisdiction. Johnson alleges that the Army committed a procedural error in violation of its own regulations, thereby depriving Johnson of monetary compensation under a statute that mandates payment in certain circumstances. This Court has the jurisdiction and competence to hear such a claim. Further, though the Court cannot provide Johnson the relief he requests, which would require the Court to infringe impermissibly upon a discretionary task reserved for the military, it is within

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the power of the Court to fashion relief in the form of remand to the ABCMR should Johnson prevail on the merits of his claim. The Court, therefore, denies the...