Thompson v. United States, Case No. 1:14–cv–1328 (GBL/MSN).

• Decision Date: 20 July 2015
• Docket Number: Case No. 1:14–cv–1328 (GBL/MSN).
• Citation: 119 F.Supp.3d 462
• Parties: Nathaniel R. THOMPSON, III, Plaintiff, v. UNITED STATES of America, et al., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

119 F.Supp.3d 462

Nathaniel R. THOMPSON, III, Plaintiff,

v.UNITED STATES of America, et al., Defendant.

Case No. 1:14–cv–1328 (GBL/MSN).

United States District Court, E.D. Virginia, Alexandria Division.

Signed July 20, 2015.

Thomas M. Craig, Fluet Huber + Hoang PLLC, Woodbridge, VA, for Plaintiff.

Dennis Carl Barghaan, Jr., United States Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

GERALD BRUCE LEE, District Judge.

THIS MATTER is before the Court on Plaintiff Nathaniel R. Thompson, III ("Thompson" or "LTG Thompson")'s Motion for Summary Judgment (Doc. 20) and Defendant United States of America's Motion for Summary Judgment (Doc. 24). This case involves LTG Thompson's eligibility to transfer education benefits under the Post 9/11 GI Bill.

The issue before the Court is whether the Court should grant Plaintiff LTG Thompson's Motion for Summary Judgment or Defendants' Motion for Summary Judgment, where Plaintiff argues that he is entitled to relief because: the Army failed to provide proper counseling regarding his benefits; reliable sources at the Army provided him with incomplete, inaccurate, and false information; and that the Army failed to provide notice that failure of LTG Thompson to elect to transfer his benefits while on active duty would constitute a waiver of his right to transfer those benefits in the future, but where Defendants argue that the ABCMR's decision was neither arbitrary or capricious and Plaintiff had actual or constructive knowledge of the requirement prior to his retirement. The Court DENIES Defendants' Motion for Summary Judgment and GRANTS Plaintiff's Motion for Summary Judgment, because there is no genuine dispute of material fact that the ABCMR committed clear error in denying Plaintiff's request to "correct" his record.

I. BACKGROUND¹

Plaintiff Nathaniel Ross Thompson, III, is a retired Lieutenant General of the United States Army. (Doc. 12, ¶ 6.) On April 1, 2010, LTG Thompson retired from the Army after nearly 36 years of service. (Id. ) In 2008, Congress passed the "Post 9/11 Veterans Education Assistance Act of 2008," or the "Post 9/11 GI Bill" to provide monetary benefits to eligible military members to assist veterans in readjusting to civilian life, and particularly to assist veterans in paying for higher education. 38 U.S.C. §§ 3301 –25. The statutory framework of the Post 9/11 GI Bill creates a matrix of the amount of time that a member of the military must serve in order to be eligible. Id. Eligible members are entitled to 36 months of education benefits so long as the member "is pursuing an approved program of education." Id. § 3313(a). Additionally, veterans who were eligible for retirement on August 1, 2009 were entitled to transfer their educational benefits to their spouse or children. Id. § 3319(b)(2). However, "[a]n individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed." Id. § 3319(f)(1). According to a directive issued by the U.S. Department of Defense, entitled "Directive–Type Memorandum (DTM) 09–003, Post–9/11 GI Bill" (June 22, 2009, incorporating Change 2, September 14, 2011) ("DTM 09–003"), the Secretaries of the Military Departments were required to provide eligible service members with individual counseling on the benefits to be afforded under the Post 9/11 GI Bill. Of particular importance here, the statute provides that "[A]n individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed."Id.

LTG Thompson, based on his period of service and nature of discharge, was entitled to receive educational assistance under the Post 9/11 GI Bill. (Doc. 12, ¶ 10.) Additionally, LTG Thompson was eligible to transfer his education benefits to his spouse or children. (Id. ) LTG Thompson never received the individual counseling required under DTM 09–003. AR8. Plaintiff alleges that because he did not receive counseling he was unaware of the requirement that elect to transfer his benefits prior his retirement on April 1, 2010. (Doc. 12, ¶ 45.)

On October 14, 2011, plaintiff filed an application (DD Form 149) with the Army Board for Correction of Military Records ("ABCMR") seeking the correction of his military records; more specifically, plaintiff indicated that he did not "transfer [his] Post 9/11 GI Bill benefits to [his] children" while he remained on active duty as the law requires, and requested that he "be allowed to make that election now by having the transfer benefit reinstated." AR179–97. Plaintiff explained that he was not aware that he had to make the election prior to his retirement and that "the information was not covered in any of the retirement briefings that h[e] attended, nor was [he] given any information paper that explained the benefit or requirement to transfer prior to leaving active status." AR180.

On November 15, 2011, pursuant to its regulatory authority, see Army Reg. 15–185, ¶¶ 1–10; 2–2(c), the ABCMR transmitted a copy of plaintiff's application to the Army's Deputy Chief of Personnel. In its transmittal, the ABCMR requested that this command either take "administrative action ... if appropriate," and if not, to "furnish a comprehensive advisory opinion." AR204. On December 30, 2011, the Army Human Resource Command ("AHRC") issued an advisory opinion to the ABCMR, in which it recommended "disapproval" of plaintiff's application. AR174. That advisory opinion noted that plaintiff "did not complete the requirements in the TEB [Transfer of Education] benefits online database because he claims he was not aware of the requirement to transfer prior to leaving service." AR201. But, AHRC explained, Plaintiff's ignorance of the legal requirements did not justify the discretionary relief that he sought, especially given the amount of publicly-available information about the transfer requirements. AR202. Ultimately, AHRC recommended that the ABCMR deny plaintiff's application unless he could "provide evidence showing he attempted to transfer [his entitlement to benefits] prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits." AR201–03.

Upon receipt of AHRC's advisory opinion, the ABCMR transmitted the opinion to plaintiff, and offered Plaintiff an opportunity to comment. On January 18, 2012, plaintiff submitted his comments to the ABCMR. AR198–99. Notwithstanding his comprehension of the AHRC's ultimate conclusion concerning what he needed to demonstrate, Plaintiff did not allege or submit evidence to the effect that he "was given false information by a reliable source about the rules of transferring education benefits"; rather, Plaintiff maintained that his "application clearly outline[d] the circumstances where he was given incomplete information." AR 198–99. On February 16, 2012, the ABCMR issued a six page unanimous decision denying Plaintiff's application. AR173–78. The ABCMR adopted the position advanced in AHRC's advisory opinion that Plaintiff's ignorance of the requirements could not justify an exercise of its discretion.

On February 14, 2013 Plaintiff filed a request with the ABCMR to reconsider its decision to "deny [his] application to restore [his] Transfer of Education Benefits (TEB) under the Post–9/11 GI Bill." AR 19–170. The gravamen of Plaintiff's reconsideration position was that the DOD's July 2009 policy on Post 9/11 GI Bill benefits required the Army to provide military members with "individual pre-separation counseling on the benefits," and then document the same. AR19–22. On this score, Plaintiff maintained, "[p]roper retirement counsel was not provided [to him], which resulted in denial of the benefits election decision [he] intended to exercise." AR19. In other words, because he did not receive such "pre-separation counseling," the ABCMR was required to allow him to amend his records to indicate that he had made a pre-retirement election to transfer his benefits to his children. AR12–16.

On November 14, 2013, the ABCMR denied Plaintiff's request for reconsideration in a separate opinion, concluding that none of the new evidence that Plaintiff had submitted warranted reconsideration of its earlier decision. AR3–9. After summarizing plaintiff's new evidence and arguments, the ABCMR concluded that there was "no basis for granting the applicant's requested relief." AR9. The ABCMR found particularly significant Plaintiff's concession that "he became aware of the Post–9/11 GI Bill Information Paper in July 2009 ... [which] shows that eligible individuals include members of the Armed Forces, including active duty or Selected Reserve officer or enlisted Soldiers." AR8. This concession, according to the ABCMR, served to avoid any prejudice from plaintiff's lack of pre-separation counseling on Post–9/11 GI Bill benefits. AR8–9.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Normally, Rule 56(e) requires the nonmoving party to go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, "[i]n a case involving review of a final agency action under the [APA] ... the standard set forth in Rule 56(c) does not apply because of the limited role of a court reviewing that administrative record." Sierra Club v. Mainella, 459 F.Supp.2d 76, 89 (D.D.C.2006). The ABCMR's final determination is reviewable...