United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2006 Decided January 19, 2007

No. 05-5471

MARTIN J. GILLAN, IV,

APPELLANT

v.

DONALD C. WINTER, SECRETARY OF THE NAVY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 04cv00311)

Eugene R. Fidell argued the cause for appellant. With

him on the briefs was Matthew S. Freedus.

W. Mark Nebeker, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Kenneth L.

Wainstein, U.S. Attorney at the time the brief was filed, and

Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence,

Assistant U.S. Attorney, entered an appearance.

Before: HENDERSON, TATEL and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
2

GRIFFITH, Circuit Judge: Appellant Martin Gillan, IV

was discharged from the United States Naval Reserve because

he was twice passed over for promotion while classified as an

active reservist. Gillan has challenged his discharge on the

ground that the Navy should not even have considered him for

a promotion and only did so because it had improperly failed to

transfer him to an inactive status. He brought his claim first to

the Navy’s Board for Correction of Naval Records (“BCNR”),

where he lost. He next sought review of the Navy’s decision in

federal district court, which granted summary judgment against

him. We affirm the district court’s judgment because we find

that 10 U.S.C. § 12642, the statute that governs how the Navy

classifies and evaluates reservists, does not provide a specific

time frame in which the Navy must transfer qualified reservists

to inactive status.

I.

 A Naval Reservist’s pay, benefits, and eligibility for

promotion turn on both his status as either an active or inactive

reservist and the category of service in which he is classified.

Reservists in an active status can be paid, are eligible to train,

earn retirement points, and be considered for promotion.

BUREAU OF NAVAL PERSONNEL INSTRUCTION 1001.39A § 102(1)

(1992). Inactive reservists cannot be paid, participate in training,

earn retirement points, or be considered for promotion. Id.

§ 102(2). There are three categories of service for reservists:

Ready Reserve, Standby Reserve, and Retired Reserve. Id.

§ 101. The Ready Reserve is further divided into the Selected

Reserve and the Individual Ready Reserve, both of which are

active status. Id. § 102(1). There are two subcategories of

Standby Reservists: Standby Reserve Active and Standby

Reserve Inactive. Id. § 103(2). As the names indicate, the

former is an active status category, the latter an inactive status.
3

Retired Reservists must have met the requirements for a military

pension and may not earn more retirement points or be promoted.

Id. § 102(3). Whether Gillan should have been considered for

promotion turns on whether he was properly classified in an

active status in the Ready Reserve or in an inactive status in the

Standby Reserve Inactive.

Congress has directed the Navy to prescribe “equitable

procedures for the periodic determination” of whether reservists

meet the standards and qualifications for their status. 10 U.S.C.

§ 12641; see also 10 U.S.C. § 10149 (directing the military to

provide a “system of continuous screening of units and members

of the Ready Reserve”). Department of Defense and Navy

regulations require that the Navy conduct an annual screening to

make this determination. See 32 C.F.R. § 44.5(c)(1) (“Screen, at

least annually, all Ready Reservists under their jurisdiction to

ensure their immediate availability for active duty [] and to

ensure compliance with 10 U.S.C. 10149.”); BUREAU OF NAVAL

PERSONNEL INSTRUCTION 1001.39A § 2102 (1992) (requiring

that “[a]ll members of the Ready Reserve who are not on active

duty will be screened at least annually”). If a reserve

commissioned officer fails to meet the requirements of active

status, the Navy “shall”: (1) transfer him to the Retired Reserve

if qualified; (2) transfer him to inactive status if qualified; or (3)

discharge him from his reserve appointment. 10 U.S.C. § 12642.

Notably, although Congress requires the transfer of delinquent

active reservists, the statute says nothing about when that must

happen.

Gillan was commissioned as a Coast Guard officer in

1978 and served on active duty as an aviator until he was

honorably discharged in 1985 at the rank of Lieutenant. He

served in the Coast Guard Individual Ready Reserve from May

1985 until October 1987. Gillan then transferred to the Naval

Reserve in late 1987 as a member of the Ready Reserve and was
4

promoted to Lieutenant Commander in 1990. In December

1990, Gillan was activated for service in Operation Desert Storm.

After hostilities ceased and effective May 31, 1991, he

transferred to the Individual Ready Reserve in an active status.

At the time of this transfer, the Navy told Gillan that,

If you desire a category of lesser participation in

the Naval Reserve, you may wish to request a

transfer to the Standby Reserve, Inactive. In that

category, you will not be allowed to participate

except in time of war and would not be eligible

for promotion until one year after your return to

the Ready Reserve.

Letter from Commanding Officer, Naval Air Reserve San Diego,

to Martin J. Gillan (June 12, 1991). Gillan never responded to

this invitation. He failed to seek a transfer to the Standby

Reserve Inactive. In fact, Gillan had no communication with and

did not participate in the Naval Reserves in any capacity for the

next six years because of “pressing family reasons” and his

“civilian employment as a junior airline pilot.” Appellant’s Br.

at 5. 

As a member of the Individual Ready Reserve, Gillan

was required, through participation and training, to earn “27

points . . . each anniversary year” to remain in an active status.

 BUREAU OF NAVAL PERSONNEL INSTRUCTION 1001.39A

§ 104(1) (1992). His complete failure to fulfill any of his reserve

duties from the time of his transfer to the Individual Ready

Reserve on March 31, 1991, made him subject to review by an

entity called the Mobilization Disposition Board (“MDB”). The

MDB determines whether a reservist will be transferred pursuant

to guidelines created by Congress in 10 U.S.C. § 12642. In

Gillan’s case, the MDB ultimately had two options in the face of

his total failure to participate in any of his reserve duties: transfer
5

him from active status as a member of the Individual Ready

Reserve to inactive status in the Standby Reserve Inactive or, in

the alternative, discharge him from the Naval Reserve altogether.

10 U.S.C. § 12642(b). Gillan’s case was not considered by the

January 1993 MDB because the files for that MDB were

collected in July 1992, before the Navy had any record of his

noncompliance. Letter from Chairman, Board for Correction of

Naval Records, to Secretary of Navy 2-3 (Dec. 15, 2003)

(“BCNR Decision”). Gillan was also not considered by the

August 1994 MDB. The BCNR noted in its final decision that

the Navy normally notified reservists whose records would be

screened by the MDB and “those who did not respond to their

notification letter were placed on a list to go to the next

scheduled board.” Id. at 3. This notification letter is intended to

provide delinquent active reservists a chance to respond to a

possible change in reserve status that affects their pay and

retirement benefits. The BCNR thus believed that because

Gillan admitted that he had “zero contact” with the Navy in

1994, his failure to respond to the Navy’s presumed notification

pushed the review of his record past the 1994 MDB to the next

MDB in August 1995. That MDB did consider Gillan’s record

of non-compliance and transferred him to an inactive status in

the Standby Reserve Inactive. Id.

While Gillan was still in an active status as a member of

the Ready Reserve from May 1991 until the August 1995 MDB

decision, he was eligible for promotion. BUREAU OF NAVAL

PERSONNEL INSTRUCTION 1001.39A § 102(1) (1992). Naval

Reserve Line Commander Selection Boards reviewed Gillan’s

file in April 1994 and April 1995 but failed to promote him to

Commander, a not surprising decision given his non-involvement

with the Reserves. In 1997, two years after his transfer to an

inactive status, Gillan tried to renew his activity in the Naval

Reserve by participating in training drills. After Gillan

participated in drills for five months, the Navy notified him in
6

March 1998 that he could no longer participate in reserve

activities because a Lieutenant Commander who twice fails

selection for Commander must be discharged after twenty years

of commissioned service. See id. § 105(3)(b). Another MDB

considered Gillan’s record in March 2001, and he was honorably

discharged from the Naval Reserve on August 1, 2001. 

In addition to challenging his discharge, Gillan has also

requested that the Navy revise upward one grade on his 1990

fitness report, an annual performance review. He relies on a

1998 letter written by his former commanding officer. Gillan’s

commanding officer originally gave Gillan a grade of “B” for

“Desirability [for] Command.” Eight years later, he asked that

this grade be changed to an “A.” His stated justification for this

change was, “Information received after report was written

justifies a higher grade: specifically volunteered for Desert

Storm. Outstanding command of his Maintenance Division.”

Letter from Captain Jorgensen, S.A., USNR, to Naval Personnel

Command (Dec. 1, 1998). On a number of occasions, Gillan

sought to have the Navy make this change to his 1990 fitness

report and to vacate its decisions not to promote him, which

would allow his continued service. He first petitioned the Navy

in 1998. The BCNR considered and then rejected this request on

June 24, 1999. Two subsequent petitions for rehearing were

denied in 2001 and 2002 because Gillan failed to present new or

material evidence that had not been previously considered.

Gillan finally wrote the Assistant General Counsel of the Navy

in 2003 seeking reconsideration, which was granted. A new

BCNR weighed Gillan’s petition but once again recommended

to the Secretary of the Navy that relief be denied. Gillan then

turned to the federal courts. The district court granted summary

judgment for the Navy, holding that, “Because the Navy was

under no obligation to transfer Gillan before it did, the [BCNR]’s

decision that Gillan was properly considered for, and denied,

promotion was not arbitrary and capricious.” Gillan v. England,
7

No. 04-311, 2005 WL 3213900, at *4 (D.D.C. Nov. 1, 2005).

The district court also denied Gillan’s petition to change his

fitness report because Navy regulations only permit commanding

officers to make changes to fitness reports within two years of

the report. Id. at *5.

II.

We review an agency’s interpretation of a statute it

administers under the two-step process of Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

We first determine whether “the intent of Congress is clear.” Id.

at 842. If it is, then “that is the end of the matter,” id., and we

enforce the plain language of the statute regardless of the

agency’s views. If the intent of Congress is not clear from the

language of the statute because “the statute is silent or

ambiguous with respect to the specific issue, the question for the

court is whether the agency’s answer is based on a permissible

construction of the statute.” Id. at 843. “At the same time,”

because the BCNR decision was also a final agency action, the

APA requires us to determine whether it was “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law.” Shays v. FEC, 414 F.3d 76, 96 (D.C. Cir. 2005)

(quoting 5 U.S.C. § 706(2)(A)); see also Frizelle v. Slater, 111

F.3d 172, 176 (D.C. Cir. 1997) (deferring “to the Board’s

decision unless it is arbitrary and capricious, contrary to law, or

unsupported by substantial evidence”). More specifically,

Although we have jurisdiction to review the

decisions of the Correction Board, we do so

under an “unusually deferential application of the

‘arbitrary or capricious’ standard” of the

Administrative Procedure Act. Kreis v. Secretary

of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir.

1989); see Kidwell v. Department of the Army, 56
8

F.3d 279, 286 (D.C. Cir. 1995).

Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (footnote

omitted). We review de novo the district court’s grant of

summary judgment for the Navy. See, e.g., id.; Frizelle, 111

F.3d at 176.

Gillan first argues that 10 U.S.C. § 12642(b) requires that

the Navy conduct an annual screening of all reservists followed

by an immediate transfer to inactive status of those who failed to

qualify for active status. Under Gillan’s view of the statute, the

Navy should have transferred him from the Ready Reserves to an

inactive status earlier than it did and, in what is crucial for his

argument, he would then not have been considered for and

passed over for promotions in 1994 and 1995. Without these

failed promotions, which only came about because he was

mistakenly classified in an active status at a time when he was

qualified for an inactive status, Navy regulations would have

allowed Gillan to continue his Reserve service. In effect, Gillan

argues that the Navy should interpret § 12642(b) to protect him

from his own inactivity and his failure to request a transfer to

inactive status. We read 10 U.S.C. § 12642(b) differently.

Turning first to the text of the statute:

(b) Subject to section 12645 of this title, a reserve

commissioned officer who fails to attain the

number of points, or to conform to the standards

and qualifications, prescribed in subsection (a)

shall—

(1) be transferred to the Retired Reserve

if he is qualified and applies therefor;

(2) if he is not qualified or does not apply

for transfer to the Retired Reserve, be transferred

to an inactive status, if he is qualified therefor; or

(3) if he is not transferred to the Retired
9

1

 The district court found that the Navy violated its own

screening regulations because it could not explain the failure of

the 1994 MDB to screen Gillan and therefore failed to

“annually” screen Gillan. Gillan, 2005 WL 3213900, *2. The

Reserve or an inactive status, be discharged from

his reserve appointment.

10 U.S.C. § 12642(b). Gillan is correct that the word “shall”

limits the Secretary’s discretion and in fact requires the Navy to

transfer to an inactive status or the Retired Reserves a Ready

Reservist who fails to fulfill the obligations of that category. But

nowhere does the statute impose a time requirement for such a

transfer. Gillan argues, however, that § 12642(b) must be read

together with 10 U.S.C. § 10149, which requires the Navy to

implement a system of “continuous screening,” and other Navy

and Department of Defense regulations that speak of an annual

“screening,” see BUREAU OF NAVAL PERSONNEL INSTRUCTION

1001.39A § 2102 (1992); 32 C.F.R. § 44.5(c)(1). When so read,

they create, according to Gillan, a process in which the Navy

conducts an annual screening of reservists’ status, followed by

a mandatory immediate transfer to inactive status for those who

have failed to maintain the requirements of an active reservist.

But Gillan’s argument conflates the requirements of an annual

“screening,” called for by Navy and Department of Defense

regulations, with the obligation to “transfer” reservists who no

longer qualify for active status, called for in 10 U.S.C.

§ 12642(b). Screening is certainly an understandable

prerequisite to transfer. One would expect the Navy to identify

those reservists who are eligible for transfer from active status or

discharge from the Reserves. But it does not follow that the

Navy’s “screening” process should be read into the “transfer”

statute to require the Navy to transfer reservists immediately

after screening.1
10

district court found that this was not enough, however, to

warrant Gillan’s requested relief because it was the Navy’s

failure to screen and transfer him to inactive status that led to

his failed promotions. Id. The Navy argues that Gillan was in

fact screened because “screening” includes “administrative

activities performed independent of and antecedent to the

MDB.” Appellee’s Br. at 26. According to this view, screening

would include the decision to send Gillan’s record for MDB

review and any attempts to notify Gillan of the MDB

proceedings. We need not reach the issue of whether the Navy

violated its own screening regulations because, even assuming

that the Navy failed to timely screen Gillan for transfer to

inactive status, nothing in the statute or the regulations mandates

immediate transfer to inactive status after screening.

Congress has determined that the Navy’s decision to

transfer a reservist to an inactive status cannot be based solely on

an individual’s performance. The Navy must consider the needs

of the service as well. For example, 10 U.S.C. § 10149 directs

the Secretary to provide a system of screening the Reserves so as

to ensure that, among other things, there is a “proper balance of

military skills,” 10 U.S.C. § 10149(a)(2), and “[t]hat except for

those with military skills for which there is an overriding

requirement, members having critical civilian skills are not

retained in numbers beyond the need for those skills,” id.

§ 10149(a)(3). Based on its discretion and a determination of its

needs, the Navy could choose not to transfer immediately a

delinquent reservist from the Ready Reserves. The facts

presented here—taking three years to transfer an admittedly

unresponsive reservist—do not require us to address the outer

limits of the Navy’s discretion. Congress was certainly free to

eliminate this discretion by writing a specific timeline into the

statute, but it has chosen not to restrain the Secretary in this way.
11

In addition to the substantial deference we traditionally give to

decisions involving military personnel, we also give considerable

deference to an agency’s control over timelines. Cf. Sierra Club

v. Gorsuch, 715 F.2d 653, 658 (D.C. Cir. 1983) (“Absent a

precise statutory timetable or other factors counseling

expeditious action, an agency’s control over the timetable of a

rulemaking proceeding is entitled to considerable deference.”)

(footnotes omitted). Gillan is thus asking this Court to restrain

the Navy’s discretion to make personnel decisions and intrude

upon its ability to allocate resources. Framing the question in

this manner makes the answer clear. Because Congress has not

spoken to the issue of a timeline, we must defer here to the

Navy’s permissible interpretation of 10 U.S.C. § 12642(b) that

gives the Navy discretion in determining the timing of transfer.

Gillan has presented no credible argument other than his rejected

statutory interpretation that the BCNR was arbitrary or

capricious in finding that he was properly considered for and

denied promotion.

 Gillan also asserts that the Navy erred when it failed to

permit him to correct one grade on his 1990 fitness report based

on his former commanding officer’s 1998 letter. The BCNR

denied Gillan’s request because, “The reporting senior’s letter,

some eight years after the fact, does not persuade the BCNR that

a change was warranted. The Board notes that the Petitioner

may ask the NPC [Naval Personnel Command] to file the letter

in his record with the report to which it relates.” BCNR

Decision at 4. Although the Navy could have undoubtedly

offered a more detailed denial, “[a] reviewing court will uphold

a decision of less than ideal clarity if the agency’s path may

reasonably be discerned.” Frizelle, 111 F.3d at 176 (quotation

marks and citations omitted). In fact, the Navy need only show

that the BCNR’s decision contains a “rational connection

between the facts found and the choice made.” Motor Vehicles

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
12

(1983) (quoting Burlington Truck Lines, Inc. v. United States,

371 U.S. 156, 168 (1962)). In this case, the fact “found” is that

this correction was submitted eight years after the initial fitness

report. The BCNR need not address other factors because the

letter requesting the change does not explain why it took Gillan’s

former commanding officer eight years to make this

recommended change. Navy regulations specify that fitness

reports can be changed by the reporting senior (commanding

officer) within two years from the end of the report. BUREAU OF

NAVAL PERSONNEL INSTRUCTION 1610.10 Rule P-4 (1995).

“Supplementary material submitted more than 2 years after the

report ending date [] will be accepted only if the reporting senior

demonstrates in a cover letter,” to the satisfaction of the

appropriate official, “why the material could not have been

submitted in a more timely fashion.” Id. Rule P-4(c). The

Navy’s path, although not a model of clarity, can be

discerned—this request was submitted outside of two years, and

the sparse request failed to comply with requirements for late

submissions. See Miller v. Lehman, 801 F.2d 492, 497 (D.C. Cir.

1986) (“[I]f the necessary articulation of basis for administrative

action can be discerned by reference to clearly relevant sources

other than a formal statement of reasons, we will make the

reference.”) (quoting Envtl. Def. Fund, Inc. v. EPA, 465 F.2d

528, 537 (D.C. Cir. 1972)). 

III.

For the foregoing reasons, the district court’s grant of

summary judgment is affirmed.

So ordered.