# I n the United States Court of Federal Claims

No. 1 9

- 236 C
( File d: Ju ly 25 , 2019 )

JONATHAN R. HIRSCH



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Plaintiff

v.

UNITED STATES,

Defendant. )
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MEMORANDUM AND ORDER

The plaintiff, Jonathan R. Hirsch, has moved to supplement the administrative record
(ECF 9) in this case

, in which he challenges the Army’s calculation of his Mandatory Retirement
Data (MRD). For the following reasons, the motion is denied.

The plaintiff filed this action after the Army Board for Correction of Military Records (ABCMR) rejected his petition to change his MRD . The defendant has moved for judgment on

the administrative recor d before the ABCMR (ECF 13) and in the same filing opposed the plaintiff’s motion to supplement the record. The plaintiff has not filed a reply brief responding to the defendant’s opposition to the motion to supplement the administrative record, and the t ime to do so has expired. See Rule 7.2(a)(2) of the Rules of the Court of Federal Claims.

For the purposes of this pending motion, a full recitation of the facts is not necessary. Briefly stated, according to the Complain t, the plaintiff attended colle ge under a Reserve Officers’ Training Corp s (“ROTC”) scholarship. Upon graduation

, he was commissioned in the Army Reserves and subsequently satisfied his ROTC active

- duty obligation. The plaintiff’s

active

- duty service ended in September 1992, at which time he enrolled in law school with the intention of serving in the Judge Advocate General’s Corp s (“JAG”) as a reservist upon completing law school. During the plaintiff’s legal education he continued in the Army Reserves

in order to fulfill the remainde r of his ROTC service obligation

.

Upon graduation from law school, the plaintiff received orders to attend the Army JAG School and subsequently served as a JAG officer for almost 21 years. The plaintiff’s entire military service totaled approximately 28 years when he was forced to retire in 2016. The plaintiff was a Lt. Colonel at the time of his retirement.

The dispute in this case is over whether the plaintiff was appropriately assigned his

MRD. Spec ifically, the plaintiff argues that his time i n law school should not be included in

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computing his time of service under 10 U.S.C. § 14507(a) 1 by virtue of the effect of 10 U.S.C. §
14706(a)(3). 2 The plaintiff urges that

, as a result of th e Army’s legal error in not excluding the period of the plaintiff’s law school education from its calculation of his length of service , he was discharged three years too early.

While he was still serving in the Army, the plaintiff applied to the ABCMR in 2013 to revise his MRD from June 1, 2016 to June 1, 2019. That application was denied. Early in 2016, the plaintiff reapplied to the ABCMR seeking reconsideration of its 2013 d ecision. The ABCMR again turned down the plaintiff’s request. The plaintiff subsequently filed this action.

Following the plaintiff’s initiation of this case, the defendant filed the administrative record. The plaintiff then moved to supplement the ad ministrative record. Specifically, the plaintiff seeks to include in the administrative record eight additional items : a declaration by

G ina Rossi; a declaration by Freddie Joe Black; the plaintiff’s law school transcript; excerpts from three congressiona l committee reports; a blank copy of Army Reserve Status and Address
Verification Form, DA For m 3725 (July 1984); and a copy of Army regulation 135

- 133, “Ready Reserve Screening, Qualification Records Systems, and Change of Address Reports” (June 30,
1989)

.

After the plaintiff filed his motion to supplement the administrative records, the defendant filed a supplement to the administrative record (ECF 12), but the supplement to the administrative record does not contain the plaintiff’s proposed materials.

The Federal Circuit has held that “review of a military corrections board is limited to the

administrative record.” Walls v. United States , 582 F. 3d 1358, 1368 (Fed. Cir. 2009). As the Federal Circuit explained, “it has become well established that judicial review of military
corrections boards is conducted under the [Administrative Procedure Act ] .” I d. ( f ootnote omitted). Further, “review under the APA is generally limited to the administrative record.” Id

. Quoting the Supreme Court’s language fro m Florida Power & Light Co. v. Lorion , 470 U.S.
729, 743 (19 8 5), the Federal Circuit in Walls noted “‘ [t] he f ocal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.’” Walls

, 582 F.3d a t 1367. The purpose of restricting a court’s review to the

record before a board for co rrection of military records is to prevent that review , conducted

under the APA’s “arbitrary and capricious” standard

, from turning “‘into effectively de novo

1 10 U.S.C. § 14507 (a) provides: “ Lieutenant Colonels and Commanders. Unless continued on the reserve active

status list under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title,

each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of lieutenant colonel or

commander and who is not on a list of officers recommended for promotion to the next higher grade shall (if not

earlier removed from the reserve active

- status list) be removed from that lis t under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of c ommissioned service. ”

2 10 U.S.C. § 14706(a)(3) provides: “ Service after appointment as a commissioned officer of a reserve component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the speci alty that results from such a degree. ”

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review.’” AgustaWestland N. Am. Inc. v. United States , 880 F. 3d 1326, 1331 (Fed Cir. 2018)
( qu oting Axio m Res

. M

gmgt. , Inc. v. United States 564 F. 3d 1374, 1380 (Fed. Cir. 2009) ) ; se e also 5 U.S.C.§706(2)(a).

Despite this governing standard, the Federal Circuit has noted that in reviewing a decision by a board for correction of military records, this Court may consider “extra

- record”

evidence in limited circumstances. Metz v United States , 466 F. 3d 991, 998 ( Fed. Cir. 2006). In

o rder to supplement the administrative record, the plaintiff here has the burden of showing that the “additional evidence [is] necessary.” Axiom , 564 F. 3d at 1380. If the administrative record is sufficient to permit meaningful and effective judicial review, supplementation of that record is not appropriate. “‘ [S] upplementation of the record should be limited to cases in which the

omission of extra

- record evidence precludes effective judicial review.’” AugustaWestland , 880

F. 3d at 1331 ( quoting Axiom , 564 F. 3d at 1381 )

. “Judicial review is ‘effective’ if it is

consistent with the APA.” Id. ( citing Axiom , 564 F. 3d at 1381 )

.

The plaintiff in this case did not see k to offer the additional material he seeks now to include in the administrative record before the ABCMR. That failure is highly probative that

these items are not “ necessary” to his case. 3

With re s pect to the specific documents the plaintiff seeks to h ave added to the

administrative record , the plaintiff is unable to make the requisite showing. The plaintiff’s law

school transcript is not necessary to permit effective review of his claim ; there is no dispute that

he was enrolled as a full

- time law stud ent. The excerpts from congressional committee reports

, the text of the Army regulation

, and an exemplar of Army Form DA3725 can form the basis for legal argumentation, whether or not they are in the administrative record. None of these

documents is ther efore needed to conduct effective review of the plaintiff’s claim.

The dispute over supplementing the record effectively comes down to the tw o declarations. The plaintiff makes no argument of any kind specific to the declarations of G ina

Rossi and Fredd ie Joe Black. He simply asserts that he seeks to include the additional

documents , including the declarations, “for the express purpose of introducing documents that show the Congressional intent for implementing [the relevant] statute, and its clear appl ication to his record of service, as well as documents that amplify his service record.” Plaintiff’s Motion to Supplement the Administrative Record and Memorandum in Support (ECF 9) at 4. Presumably, the declarations are intended to “amplify” the plainti ff’s service record, but the plaintiff’s briefs

are silent as to the declarations’ precise purpose or how they would add information necessary to the Court’s effective review of the plaintiff’s claim to the administrative record.

The plaintiff in no way explains or even attempts to explain the purpose of the two declarations or illuminates why they are necessary for the Court to conduct meaningful and effective review of the ABCMR decision in the plaintiff’s case.

3 The Court does not rely on the defendant’s argument that the plaintiff “waived” his ability to add these materials.

The d efendant’s cit e to Met z v. United States , 466 F. 3d 991, 999 (Fed. Cir. 2006) is inapposite given the different

set of facts here.

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Accordingly, the Court finds that the plaintiff has failed to satisfy the threshold

established by the Federal Circuit to justify supplementing the administrative record. The plaintiff’s motion to supplement the administrative record is DENIED.

It is s o ORDERED.

s/ Richard A. Hertling Richard A. Hertling Judge