Prochazka v. United States, 06-827C
Decision Date | 30 April 2012 |
Docket Number | No. 06-827C,06-827C |
Parties | FRANK J. PROCHAZKA, Plaintiff, v. THE UNITED STATES, Defendant. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Correction of Military Records, 28
Defense Officer Personnel Management Act, Pub.
L. No. 96-513, 94 Stat. 2835 (1980);
Vol. I (Sept. 25, 2009);
Military Pay Act, 10 U.S.C. § 1552 (2006);
NAVMILPERSCOM Notice 1821;
Tucker Act, 28 U.S.C. § 1491(a)(1) (2006);
10 U.S.C. § 101(b)(10) (2006) (defining "original
appointment" in the same manner as 10
10 U.S.C. § 634(a) (2006) (Navy retirement
required after "30 years of active commissioned
service");
10 U.S.C. §§ 1401-09 (2006) (method of
computing "monthly military retirement pay");
10 U.S.C. § 1556 (2006) (requiring notice of
communications between the BCNR and the
Navy);
10 U.S.C. § 5404 (1964) (listing "staff corps");
10 U.S.C. § 5578(a) (1970) (repealed 1981) (three
year minimum service credit for a JAGC
officer);
10 U.S.C. §§ 6376-81 (1964) (repealed 1981);
10 U.S.C. § 6382(b) (1964) (repealed 1981)
(discharge for failure to obtain promotion);
10 U.S.C. § 6388 (1964) (amended 1968) (prior
Navy definition of "total commissioned
service");
10 U.S.C. § 6388(a) (1976) (repealed 1981)
(amended Navy definition of "total
commissioned service" in the Supply and
Engineers staff corps);
10 U.S.C. § 6388(b) (1976) (repealed 1981)
(amended Navy definition of "total
commissioned service" in most staff corps).Thomas Andrew Coulter, LeClair Ryan, P.C., Richmond, Virginia, Counsel for Plaintiff.1
Devin Andrew Wolak, United States Department of Justice, Civil Division, Washington, D.C., Counsel for Defendant.
Joseph Robert Berger and Scott Arnold, Dickstein Shapiro, LLP, Washington, D.C., Counsel for National Veterans Legal Service Program, Washington, D.C., Amicus Curiae In Support of Plaintiff.2
In 1980, Congress enacted the Defense Officer Personnel Management Act, Pub. L. No. 96-513, 94 Stat. 2835 (1980) ("DOPMA") requiring, among other directives in this omnibus legislation, that all military services compute an officer's mandatory retirement date, based on "active commissioned service." 10 U.S.C. § 634 (1982). For those officers who had pre-DOPMA and post-DOPMA service, "active commissioned service" was to be computed by adding "service creditable" prior to September 15, 1981, to all subsequent "active commissioned service." DOPMA § 624(a).
The United States Supreme Court has long held that "[C]ongress has the right to give, withhold, distribute, or recall [monetary benefits to military pensioners], at its discretion." United States v. Teller, 107 U.S. 64, 68 (1883). The Department of the Navy ("Navy"), however, does not have the authority to interpret an Act of Congress, to change an officer's statutorily determined mandatory retirement date, albeit to achieve a personnel policy to advance junior officers. See United States v. Larionoff, 431 U.S. 864, 869 (1977) ( ). But, that is what happened in this case.
Therefore, on December 6, 2006, Plaintiff filed a pro se Complaint in the United States Court of Federal Claims, alleging that the Navy erred in interpreting 10 U.S.C. § 6388(b), as amended in 1968,3 to determine his pre-DOPMA "service creditable" and mandatory retirementdate, thereby denying him six years of active duty pay and reducing his monetary pension benefits.
To facilitate review of this Memorandum Opinion and Final Order, the court has provided the following outline:
I. RELEVANT STATUTORY AND REGULATORY STRUCTURE.
II. RELEVANT FACTS.
III. PROCEDURAL HISTORY.
IV. DISCUSSION.
V. CONCLUSION.
The complex and evolving statutory and regulatory structure under which Plaintiff's mandatory retirement date was computed by the Navy requires a detailed explanation to facilitate understanding the relevant facts, procedural history, and legal discussion that follow.
On December 8, 1967, the Judge Advocate General Corps ("JAGC") of the Navy was established by Congress. See Act of Dec. 8, 1967, Pub. L. No. 90-179, 81 Stat. 545 (1967). At that time, Congress required that the "total commissioned service"
of each officer originally appointed in the grade of lieutenant (junior grade) or ensign in any staff corps of the Navy,[4 ] who has since that appointment served continuously on the active list of the Navy, [is to be] computed from June 30 of the fiscal year in which he accepted that appointment.
10 U.S.C. § 6388 (1964) (emphasis added) (reproduced at AR 1189).
"Total commissioned service" was used by the Navy to compute: 1) the severance pay of a lieutenant and lieutenant (junior grade) who became subject to an involuntary discharge, if he twice failed to be selected for promotion or received an unsatisfactory rating, 10 U.S.C. § 6382 (1964), and 2) the date on which an officer in a higher grade was subject to mandatory retirement, 10 U.S.C. §§ 6376-80 (1964). AR 1329. This application resulted in Navy staff officers with prior experience in the line being treated differently than officers who joined the Navy in the staff corps. The Navy explained this "disparity" with the following example:
AR 1297.
On June 3, 1968, the Secretary of the Navy sent a letter to the Speaker of the House requesting that Congress amend 10 U.S.C. § 6388 (1964) to address this situation, but only for officers in the Supply Corps and the Civil Engineering Corps:
AR 1330.
The Navy also requested that a savings clause be included to ensure that staff corps officers who accepted appointments under the pre-1968 regime were not adversely affected, as "[t]hey were tendered their appointments and accepted them in good...
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