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. Claims Court

FRANK J. PROCHAZKA, Plaintiff,

v.THE UNITED STATES, Defendant.

No. 06-827C

United States Court of Federal Claims

Filed: April 30, 2012

TO BE PUBLISHED

Correction of Military Records, 28

U.S.C. § 1491(a)(2) (2006);

Defense Officer Personnel Management Act, Pub.

L. No. 96-513, 94 Stat. 2835 (1980);

Manual of Navy Officers Manpower and Personnel

Classifications ("NAVPERSCOM") 158391,

Vol. I (Sept. 25, 2009);

Military Pay Act, 10 U.S.C. § 1552 (2006);

NAVMILPERSCOM Notice 1821;

SECNAVINST 1821.1;

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

U.S.C. § 101(35) (1964));

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10 U.S.C. § 5578(a) (1970) (repealed 1981) (three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10 U.S.C. §§ 6376-81 (1964) (repealed 1981);

10 U.S.C. § 6382(b) (1964) (repealed 1981)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10 U.S.C. § 6388(a) (1976) (repealed 1981)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10 U.S.C. § 6388(b) (1976) (repealed 1981)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

MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

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) (holding that a "'soldier's entitlement to pay is dependent upon statutory right,' and that accordingly the rights of the affected service members must be determined by reference to the statutes and regulations[.]" (quoting Bell v. United States, 366 U.S. 393, 401 (1961))). 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 STATUTES AND REGULATIONS.

A. Retirement In The Navy From December 8, 1967 To September 20, 1968.

B. Retirement In The Navy From September 20, 1968 To September 15, 1981.

C. Retirement In The Navy After September 15, 1981.

1. The Defense Officer Personnel Management Act.

2. SECNAVINST 1821.1.

II. RELEVANT FACTS.

III. PROCEDURAL HISTORY.

A. Initial Proceedings In The United States Court Of Federal Claims.

B. Remand Proceedings Before The Board For The Correction Of Naval Records.

1. The March 29, 2010 Naval Personnel Command Advisory Opinion.

2. The March 26, 2010 Office Of The Judge Advocate General's Advisory Opinion, Relying On A Previously Undisclosed 2001 Opinion From The Office Of The Judge Advocate General.

3. The September 24, 2010 Board For The Correction Of Naval Records Request For A "Supplemental" Advisory Opinion From The Office Of The Judge Advocate General.

4. The October 25, 2010 Office Of The Judge Advocate General "Supplemental" Advisory Opinion, Retracting Views Expressed In The March 26, 2010 Advisory Opinion And Plaintiff's Response.

5. The March 16, 2011 Board For The Correction Of Naval Records Remand Decision.

C. Proceedings In The United States Court Of Federal Claims After March 16, 2011.

IV. DISCUSSION.

A. Whether The Navy's 1982 Interpretation Of 10 U.S.C. § 6388(b), As Amended In 1968, Is Entitled To Deference.

1. Governing Precedent.

2. The History And Text Of 10 U.S.C. § 6388(b), As Amended In 1968, And The Navy's 1982 Interpretation After DOPMA Was Enacted.

3. The Legislative History.

4. Other Relevant Mead Factors.

a. The Navy's "Degree Of Care" And "Persuasiveness" Of The Navy's Interpretation.

b. The "Consistency" Of The Navy's Statutory Interpretation.

c. The "Formality" Of The Navy's Interpretation.

5. The Court's Disposition.

B. Whether SECNAVINST 1821.1 Is "Arbitrary Or Capricious In Substance."

C. Plaintiff's Mandatory Retirement Date Should Be Computed Under 10 U.S.C. § 6388(b), As Amended In 1968.

V. CONCLUSION.

I. RELEVANT STATUTES AND REGULATIONS.

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.

A. Retirement In The Navy From December 8, 1967 To September 20, 1968.

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:

[A]n officer who has served five years in the line and seven in the Supply Corps, and who is discharged for two failures of selection for promotion, receives severance pay equal to 14 months' basic pay, whereas, if all of his service had been in the line, or if all of it had been in the Supply Corps, he would havereceived 24 months' basic pay, which is the maximum allowable severance payment.

On the other hand, if such an officer attains the grade of lieutenant commander and fails of selection for promotion two or more times, he cannot be retired until he has completed 25 years of active duty as an officer, whereas his contemporaries are mandatorily retired five years earlier. . . . This situation has resulted in some stagnation in the grades of lieutenant commander and above.

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:

[I]n the case of many officers of the Supply Corps and the Civil Engineering Corps who had prior service in the line, the definition of total commissioned service in 10 USC [§] 6388 works to the detriment of passed over lieutenants and to the advantage of those who reach higher grades. Both results are inequitable, and the second is especially undesirable from the personnel management standpoint.

The proposed legislation would eliminate these inequities by providing that the total commissioned service of each officer of the Regular Navy in the Supply Corps or the Civil Engineering Corps who has served continuously since his original appointment as a Regular or Reserve in the grade of ensign in the line or any staff corps or in the grade of lieutenant (junior grade) in the Civil Engineering Corps shall be computed from June 30 of the fiscal year in which he accepted his initial appointment. Thus all of his active commissioned service would count for all purposes.

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 faith and are undoubtedly relying, at a minimum, upon continued active service for the periods authorized by law for officers in their current grades." AR 1330. Both the House and Senate Committee Reports adopted the Navy's rationale verbatim in the congressional history...