In the United States Court of Federal Claims

No. 19-236C

(Filed: July 25, 2019)

JONATHAN R. HIRSCH,

 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 record 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 time 

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 Complaint, the plaintiff attended college under a Reserve 

Officers’ Training Corps (“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 Corps (“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 remainder 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. Specifically, the plaintiff argues that his time in law school should not be included in 
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computing his time of service under 10 U.S.C. § 14507(a)1by virtue of the effect of 10 U.S.C. § 

14706(a)(3).2 The plaintiff urges that, as a result of the 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 decision. 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 administrative record. Specifically, the 

plaintiff seeks to include in the administrative record eight additional items: a declaration by 

Gina Rossi; a declaration by Freddie Joe Black; the plaintiff’s law school transcript; excerpts 

from three congressional committee reports; a blank copy of Army Reserve Status and Address 

Verification Form, DA Form 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].” Id. (footnote 

omitted). Further, “review under the APA is generally limited to the administrative record.” Id. 

Quoting the Supreme Court’s language from Florida Power & Light Co. v. Lorion, 470 U.S. 

729, 743 (1985), the Federal Circuit in Walls noted “‘[t]he focal 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 at 1367. The purpose of restricting a court’s review to the 

record before a board for correction 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 activestatus 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 list under section 14514 of this title on the 

first day of the month after the month in which the officer completes 28 years of commissioned service.”

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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 specialty 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)

(quoting Axiom Res. Mgmgt., Inc. v. United States 564 F. 3d 1374, 1380 (Fed. Cir. 2009)); see

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 

order 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 seek 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 respect to the specific documents the plaintiff seeks to have 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 student. 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 therefore needed to conduct effective review of the plaintiff’s claim.

The dispute over supplementing the record effectively comes down to the two

declarations. The plaintiff makes no argument of any kind specific to the declarations of Gina

Rossi and Freddie 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 application 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 plaintiff’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 defendant’s cite to Metz 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 so ORDERED.

s/ Richard A. Hertling 

Richard A. Hertling

Judge