# United States **Court of Appeals**  **for the Federal Circuit**

______________________

JOSIAH E. NICELY,

Plaintiff

- Appellant

v.

UNITED STATES, Defendant

- Appellee

______________________

2020

- 1856

______________________ Appeal from the United States Court of Federal Claims in No. 1:16

- cv

- 01264

- DAT, Judge David A. Tapp.

______________________
Decided: January 20, 2022

______________________
C HARLES W. G ITTINS , Lake Frederick, VA, argued for plaintiff

- appellant.

J OSEPH A LAN P IXLEY , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant

- appellee. Also represented by B RIAN M. B OYNTON , R OBER T E DWARD K IRSCHMAN , J R ., D OUGLAS K. M ICKLE

.

______________________
Before M OORE , Chief Judge

, P ROST and O’M ALLEY , Circuit Judges

. Case: 20-1856 Document: 70 Page: 1 Filed: 01/20/2022NICELY v. US 2

Opinion for the court filed P ER C URIAM

. Circuit Judge O’M ALLEY concurs in the result.

P ER C URIAM

. Josiah Nicely appeals a decision of the United States Court of Federal Claims (“Claims Court”) that: (1) dismissed Count II of Nicely’s c omplaint, which the Claims Court concluded was predicated on an alleged violation of the Military Whistleblower Protect ion Act (“MWPA”) , 10 U.S.C. § 1034

, over which the court lacked subject matter jurisdiction; and (2) granted the government’s cross

- motion for judgment on the administrative record as to all remaining issues. Nicely v. United States , 147 Fed. Cl. 727 (202 0). One such issue was Nicely’s contention that the Board for Correction of Naval Records ’ (“BCNR” or “Board”) denial of his request for correction of his military record must be set aside because the BCNR contained unauthorized members.Specifically, Nicely asserts that the BCNR panel that considered his request contained retired military mem bers who did not qualify as “civilians of the executive part” of the Navy as 10 U.S.C. § 1552(a)(1) requires.
On appeal, Nicely challenges the Claims Court’s dismissal of Count II and its determination that the BCNR’s long

- standing practice of permitting r etired members of the military to serve as members of the Board does not violate 10 U.S.C. § 1552(a)(1) ’s requirement that the Secretary of the Navy “act[] through boards of civilians of the executive part of that military department.” For the following r easons , we affirm.

I. B ACKGROUNDNicely served in active duty in the United States Marine Corps (“USMC”) for more than ten years

. Nicely , 147 Fed. Cl. at 731. After an incident in January 2010, where Nicely was arrested and charged with driving under th e influence

, Nicely went through a series of disciplinary Case: 20-1856 Document: 70 Page: 2 Filed: 01/20/2022NICELY v. US 3

proceedings and was ultimately involuntarily discharged in October 7, 2011.
Three things of note occurred between Nicely’s arrest and discharge. First, the state court dismissed the driving

under

- t he

- influence charge

, and Nicely was only convictedof misdemeanors that did not involve driving while impaired. Second, during the course of non

- judicial disciplinary proceedings, among other statements regarding the circumstances of his arrest, Nicely wr ote a letter to his Commanding General admitting to having driven under the influence on January 22, 20 1 0. Third, in February 20 1 1, after the Board of Inquiry (“BOI”) proceedings had begun, but before they completed in April 2011 with a discharge recommen dation, Nicely filed a reprisal complaint under the MWPA. The complaint was investigated by the Marine Corp IG, Nicely was interviewed during the course of the investigation, and he provided information regarding his arrest to the IG at that time. Nicely ’s complaint was dismissed in February 2012 based on an IG finding that there was “no indication that any actions toward Capt. Nicely occurred as a result of what he considered P rotected C ommunications.” J.A. 137.
Nicely petitioned the BCNR to correct his military record, alleging various errors in his separation. Specifically, Nicely requested that the BCNR correct his military record by: (1) directing removal of the January 2010 fitness report relating to his arrest ; (2) setting aside his adm inistrative separation from the USMC for misconduct, as well as theBoard of Inquiry (“BOI”) decision that led to that separation; (3) reinstating Nicely to active duty with back pay; and (4) ordering any additional relief. Nicely , 147 Fed. Cl. at 736. I n August 2015, the BCNR found Nicely’s arguments and evidence insufficient to establish the existenceof material error or injustice and therefore denied his petition for relief. Id

. Case: 20-1856 Document: 70 Page: 3 Filed: 01/20/2022NICELY v. US 4

Nicely subsequently filed suit in the Claims Court, challenging the BCNR ’s decision

. Nicely purported to ground his claims on the Military Pay Act (“MPA”) . As relevant to this appeal , Nicely alleged in Count II that his discharge must be set aside because it was predicated, in part, on confidential statements he had made to the IG during the investigation of his MWPA claim

. He separately asserted that some members of the BCNR were not statutorily authorized to serve. The court remanded the case to the BCNR twice for further consideration.
First, the court ordered the BCNR t o explain to what extent, if any, Nicely’s statements to the IG factored into his discharge recommendation. The BCNR respondedupon remand that Nicely’s disclosures to the IG were irrelevant to its recommendation because Nicely had independe nt ly admitted to his supervising officer in writing that he had, in fact, been driving while impaired in January 2010

. Second , in December 2018, the court remanded the
matter for the BCNR to consider Nicely’s claim that certain retired military members

— specifically reti red military officers

— are precluded from sitting on military correction boards under 10 U.S.C. § 1552(a). Id

. at 736. After consultation with the counsel’s office at the Department of Defense (“DoD”) on that question, a three

- member panel of the Board with no prior military service considered the issue . In a June 2019 decision

, the Board found that “none of the provisions in the BCNR’s authorizing statute and governing regulations expressly define ‘civilian,’ and thus d o not expressly exclude retired military members from those civilians who may serve as Board members.” Id

. ; J.A. 334. The Board concluded that “the use of retired military members was not in error or unjust,” and therefore denied Nicely’s request for rel ief. Nicely , 147 Fed. Cl.
at 737. The case was again returned to the Claims Court. Case: 20-1856 Document: 70 Page: 4 Filed: 01/20/2022NICELY v. US 5

In the March 27, 2020 decision at issue on appeal, the Claims Court granted the government’s motion to dismissCount II of the complaint for lack of subject matter jurisdi ction. Id

. at 738. Citing this c ourt’s decisions in Bias v. United States , 722 F. App ’ x 1009, 1013 (Fed. Cir. 2018)

, and Rana v. United States , 664 F. App ’ x 943, 947 (Fed. Cir. 2016), the court held that it “lacks jurisdiction to resolve MWPA claims, suc h as Nicely’s standalone claim as pleaded in Count II.” Id

. Alt hough Nicely insisted his claim was one under the MPA and not the MWPA, the court concluded that the substance of his allegations belied that assertion. The court concluded that, once proper lycharacterized based on the real substance of his allegations, the court lacked jurisdiction to consider Count II

.The court also rejected Nicely’s argument that retired military officers are not “civilians” and therefore cannot serve as members of the BCNR. In reaching its conclusion, the Claims Court applied the framework set out in Chevron, U.S.A., Inc. v. Nat ural Res ources Def ense Council, Inc

. , 467 U.S. 837 (1984) . After first determining that Congress had not spoken to the issue, the court concluded that, l ooking to the statutory text, dictionary definitions, and language used elsewhere in Title 10, “it was reas onable for the BCNR to conclude that Congress intended the term ‘civilian’ to have an ordinary meaning that includes former and retired military members.” Nicely , 147 Fed. Cl. at 741. The court

, thus, said it would defer to the BCNR’s conclusion on the

c onstitution of the Board. The court then denied Nicely’s remaining claims, finding that he failed to meet his burden of establishing that the B CN R’s determinations were arbitrary, capricious, or contrary to law.
Nicely timely appealed. We have jurisdicti on under 28 U.S.C. § 1295(a)(3).

II. D ISCUSSION On appeal, Nicely argues that the Claims Court erred when it: (1) dismissed Count II of his complaint for lack of Case: 20-1856 Document: 70 Page: 5 Filed: 01/20/2022NICELY v. US 6

subject matter jurisdiction and (2) agreed with the BCNR that retired military officers quali fy as “civilians” within the meaning of 10 U.S.C. § 1552(a)(1) and therefore are permitted to serve on correction boards. He does not appeal any other issues decided by the Claims Court.

A. Subject Matter Jurisdiction
We dispense with the first issue quickly. W e review a Claims Court decision dismissing for lack of subject matter jurisdiction de novo. Diaz v. United States , 853 F.3d 1355, 1357 (Fed. Cir. 2017). Nicely bears the burden of establishing jurisdiction by a preponderance of the evidence. Id

. Although Nicely denies that Count II of his c omplaint

s ought to state a cause of action under the MWPA and submits that his claims were entirely based on the M PA , we

a gree with the Claims Court that this argument is “inexplicabl[e]” given that he invokes the MWPA no less than three times in Count II. Nicely , 147 Fed. Cl. at 738 n.7.
We agree with the Claims Court that we must look to the substance of the allegations in a complaint when assessing the scope of the Claims Court ’s (and our) jurisdiction over those claims, not the label a claimant places on them. The entire predicate for Count II of Nicely’s complaint is that the BCNR relied upon certain confidential disclo sures to the IG when making its recommendation for discharge to the Secretary , which the MWPA prohibits

. There is no way to read his claim other than one directly asserting a violation of the MWPA. The MWPA establishes a detailed, comprehensive scheme fo r addressing whistleblower issues within the military. 10 U.S.C. § 1034(a)

– (h). Reviewing this statutory scheme, we have held that the MWPA is not a money

- mandating statute and th at the Claims Court does not possess jurisdiction to entertain MWPA claims. Rana , 664 F. App’x at 948 (citing Lewis v. United States , 476 F. App’x 240, 244 (Fed. Cir. 2012)); Bias

, 722 F. App’x at 1013. The Claims Court correctly concluded that Nicely’s claim in Count II arose under the Case: 20-1856 Document: 70 Page: 6 Filed: 01/20/2022NICELY v. US 7

MWPA and not the MPA and that the court, therefore, lacked jurisdiction to consider Nicely’s c laim

. B. Interpretation of 10 U.S.C. § 1552(a)(1)
As to the second issue, we review a Claims Court decision granting o r denying a motion for judgment on the administrative record without deference

— meaning that we apply the same standard as the trial court. Chambers v. United States , 417 F.3d 1218, 1227 (Fed. Cir. 2005). We “will not disturb the decision of the correctio ns board unless it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence.” Id

. Resolution of Nicely’s second issue on appeal requires us to consider what appears to be an issue of first impression: whether permitting retired mi litary officers to sit on the BCNR violates 10 U.S.C. § 1552(a)( 1 ). Nicely maintains that it does

, and argues that his original BCNR was improperly constituted because it included retired commissioned officers as members. The government admit s that § 155 2 does not define the term “civilian

, ” but points out that it does not expressly exclude former commissioned military officers from serving on correction boards

. According to the government, the BCNR correctly interpreted § 1552(a)(1) to permit retired officers to serve on correction boards

, and the Claims Court was correct to defer to that conclusion under Chevron

. We conclude that the best interpretation of § 1552(a)(1) is the interpretation the BCNR adopted

, so we need not decide whether or how the Chevron framework applies here. See, e.g.

, Chudik v. Hirshfeld , 987 F.3d 1033, 1039 (Fed. Cir. 2021 ).
1. Statutory Text

W hen interpreting a statute, we “begin wi th the language employed by Congress.” Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist

. , 541 U.S. 246, 252 (2004) (internal quotation marks and citation omitted)

. Section 1552, provides in relevant part: Case: 20-1856 Document: 70 Page: 7 Filed: 01/20/2022NICELY v. US 8

The Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except as provided in paragraph (2), such corrections shall be made by the Secretary acting thro ugh boards of civilians of the executive part of that military department. 10 U.S.C. § 1552(a) (1) (emphasis added). The statute therefore requires that the Secretary of a military department , when exercising discretion to correct military records, must “a ct through boards of civilians of the executive part of that military department .” Id

. T he BCNR is under the direction and supervision of theAssistant Secretary of the Navy (Manpower & Reserve Affairs) and is part of the organization that is the Navy

. Nicely does not dispute that the members of his BCNR panel were from the “executive part” of th at mi litary department. Instead, Nicely’s argument on appeal is that the BCNR panel that considered his claims was not composed solely of “civilians” because, in Nicely’s view, a “ retired military officer ” is a “ current member of the military service ” and ther efore cannot be a “civilian” as that term is used in § 1552(a)(1). See Appellant’s Br. 5.
Congress did not explicitly define “civilians” in the text of § 1552 (a)(1)

. That a term is not defined in a statute does not make it indecipherable , however . It is well established that “the legislature’s failure to define commonly

- used terms does not create ambiguity, because the words in a statute ‘are deemed to have their ordinarily understood meaning.’” Executive Jet Aviation, Inc. v. United States

, 125 F.3d 14 63, 1468 (Fed. Cir. 1997) (quoting Koyo Seiko Co. v. United States , 36 F.3d 1565, 1571 n.9 (Fed. Cir. 1994 )). The question we must ask is whether well

- known principles of statutory interpretation reveal the meaning of any such silence. Burns v. United States , 501 U.S. 129, 136 Case: 20-1856 Document: 70 Page: 8 Filed: 01/20/2022NICELY v. US 9

(1991) (“An inference drawn from congressional silence certainly cannot be credited whe n it is contrary to all other textual and contextual evidence of congressional intent.”).
In the absence of an express definition, we first give undefined terms their ordinary meaning. Asgrow Seed Co. v. Winterboer , 513 U.S. 179, 187 (1995) (“When terms u sed in a statute are undefined, we give them their ordinary meaning.”) ; Richards v. United States , 369 U.S. 1, 9 (1962) (“[W]e must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.”)

. This “ ordinary meaning may be informed through the use of dictionaries. ” Gazelle v. Shulkin

, 868 F.3d 1006, 1011 (Fed. Cir. 2017) (citing United States v. Rodgers , 466 U.S. 475, 479 (1984)).

Modern d ictionaries define the term “civilian” as a person wh o is not on active duty in the armed services. See Webster’s New World College Dictionary ( 4th ed. 2010) ( defining a civilian a s “any person not an active member of the armed forces”); Oxford English Dictionary (2d ed. 1989) (“A person who is not professi onally employed in the armed forces; a non

- military person”); Black’s Law Dictionary (11th ed. 2019) (“A person not serving in the military.”). As the Claims Court explained, these definitions differentiate between persons “on active duty in the armed services ” and those who are not

. Nicely , 147 Fed. Cl. at 741. This differentiation is consistent with how the terms “member[s] of the armed forces” and “active duty” are used elsewhere in Title 10. Id

. For example, the phrase “member[s] of the armed fo rces” is defined in Title 10 as “(A) a member of the armed forces who is serving active duty, (B) a member of the National Guard who is serving on full

- time National Guard duty, or (C) a member of a Reserve component while performing inactive

- duty training .” 10 U.S.C. § 976(a)(1). Elsewhere in Title 10, “active duty” is defined as “full

- time duty in the active military service of the United States.” 10 U.S.C. § 101(d)(1). Taken together, these definitions suggest that a “retired” member of the military

— a person who Case: 20-1856 Document: 70 Page: 9 Filed: 01/20/2022NICELY v. US 10

is not serving in full

- time active duty

— is not a “member of the armed forces” and therefore would not normally qualif y as a “civilian.”
The broader statutory context confirms this definition

. There is a “presumption that a given term is used t o mean the same thing throughout a statute.” Brown v. Gardner

, 513 U.S. 115, 118 (1994). Elsewhere in Title 10, Congress expressed its understanding that former and retired members of the military are “civilians” by creating post

- retirement waiting perio ds before such personnel could be appointed to certain high

- level civilian positions

. For example, 10 U.S.C § 113(a) , which provides that the Secretary of Defense must be “appointed from civilian life,” excludes from eligibility any person who is “within seven years after relief from active duty as a commissioned officer of a regular component of an armed force.” See a lso 10 U.S.C. § 134(a) (excluding from eligibility for Under Secretary of Defense for Policy persons who are “within seven years after relief from active duty as a commissioned officer of a regular component of an armed force”) . Similar requirements exist for the Secretaries of the Navy and Army. See 10 U.S.C. §§ 8013(a), 7013(a) (providing for appointment from “civilian life” after five years of relief from active duty). And, Congress imposed similar restrictions on the appointment of judges for the Uni ted States Court of Appeals for the Armed Forces. See 10 U.S.C. § 942(b)(1), (b)(4) (providing that “[e]ach judge shall be appointed from civilian life by the President

, ” but prohibiting appointment of persons who are within seven years after retirement f rom active duty as a commissioned officer ).
The express statutory exclusion of retired military officers from appointment to certain roles within the civil service for a specified period of time after active service ends implies that those individuals woul d have been eligible for service as civilians immediately upon retirement but for the statutorily

- imposed “cooling

- off” period. If Congress had wanted to include a similar “cooling

- off” period for Case: 20-1856 Document: 70 Page: 10 Filed: 01/20/2022NICELY v. US 11

service on correction boards, it could have done so expres sly. Th e absence of such a period in § 1552(a)(1) strongly suggests that retired military officers qualify as “civilians” for purposes of the BCNR upon retirement and commencement of service in the executive department of the Navy

. The use of the term “civilian” throughout Title 10 to include former and retired members of the military is consistent with the ordinary meaning of “civilian s ”

— thatis, a person who is “not serving on active duty in the military.” See Nicely , 147 Fed. Cl. at 741; JA. 33 5.

2

. Relevant Case Law
As he did before the Claims Court, Nicely cites Weiss v. United States , 408 F.2d 416, 421 (Ct. Cl. 1969)

, and Proper v. United States

, 139 Ct. Cl. 511, 526 (1957)

, for the proposition that retired military members are not civilian s within the meaning of 10 U.S.C. § 1552(a). He also cites several cases in the military retirement pay context for the proposition that “retired officers are in the military service of the government.” Appellant Br. 9 (quoting United States v. Tyler , 10 5 U.S. 244, 245 (1882)). N one of these cases persuasively support Nicely’s position, however.
At the outset, n either Proper nor Weiss address ed whether retired service members can serve on correction boards . Instead, both cases were directed to the questionof whether the Secretary of a military branch could overrule the substantiated findings of the correction board on the advice of others

. Se e Proper

, 139 Ct. Cl. at 5 26 (explaining that the Secretary of the Army could not disregard the findings of the correction board in favor of the contrary advice of a retired military officer because corrections were to be decided by the Secretary after con sidering the BCNR’s recommendation, not the recommendations of others ) ; Weiss , 408 F.2d at 421 (finding that the Secretary’s rejection of the BCNR’s recommendation was unjustified, where the Board’s recommendation was supported by the record Case: 20-1856 Document: 70 Page: 11 Filed: 01/20/2022NICELY v. US 12

and the Secret ary instead chose to follow the advice of an active duty naval officer).

We confirmed as much in Strickland v. United States

, 423 F.3d 1335 (Fed. Cir. 2005) , where we addressed the scope of § 1552(a)

. In Strickland , “[t]he sole issue [was]whether the Assistant Secretary acted outside his statutorily

- granted powers when he rejected the recommendation of the [BCNR] .” Id

. at 1337. We concluded that “he did not, and that the trial court erred in interpreting § 1552(a ) to mandate that the Assistant Secretary cannot reject a Board recommendation.” Id

. In reaching this conclusion,

we clarified “the point of Proper and Weiss : Congress wanted final decisions on records corrections to be made bycivilians in each military department, not uniformed officers. In both cases the Secretary effectively deferred to a professional military officer over the reasonable decision of the B oard.” Id

. at 1342. Because “no uniformed officer was involved in any decision

- making” in Strickland

, and it wasthe Secretary’s own decision to reject the BCNR’s recommendation, we concluded that neither Proper nor Weiss was applicable. Id

. More recent ly, in Strand v. United States , 951 F.3d 1347 (Fed. Cir. 2020), we again clarified that Proper and Weiss “have no application without military officer involvement. ” Strand , 951 F.3d at 1353 (internal quotation marks and citation omitted)

. In Strand , the BCNR issued a decision that recommend ed granting the appellant’s request for correction

. Id

. at 1349. The Secretary of the Navy twice rejected that recommendation

. Id

. Later, the BCNR’s then

- Executive Director, Robert O’Neill, who was a “retiredNavy [Judge Advocate General]” attorney, wrote a memorandum requesting that the Secretary of the Navy reviewthe 2014 BCNR decision, but “without advocating a particular outcome of that review.” Id

. at 1352

– 53. After finding that Proper and Weiss were “inapplicable” to Strand’s

case

— because the individuals giving advice to the Case: 20-1856 Document: 70 Page: 12 Filed: 01/20/2022NICELY v. US 13

Secretary in Proper and Weiss were actual “uniformed military officers”

— we explained:

A lthough BCNR Ex ecutive Director O’Neill is a retired military officer , his memo requesting Secretarial review does not constitute undue officer influence. Mr. O’Neill was a civilian employee of the Navy at the time he wrote the memo

, and his memo merely states that the Secretary “should review this case for decision,” without advocating a particular outcome of that review.

Id

. at 1353 (emphas e s added) (citations omitted)

. We ultimately held that the “Secretary acted within his discretion in rejecting the recommendation of the B oard.” Id

. at 1357.
Although Strand did not address the precise issue presented in this appeal

— whether retired military members can serve on military correction boards

— our analysis in that case supports our interpretation here . In particular,our indication that O’Neill, who was a retired military officer, was a “ civilian employee ” of the Navy , rather than a “uniformed military officer

, ” supports the n otion that a retired military officer serving on the BCNR qualifies as a civilian. See id

. at 1353.
Finally, Nicely cites several cases that refer to retired military officers as members of the military. See Tyler , 105 U.S. at 245 (“It is impossible to h old that men who are by statute declared to be a part of the army, who may wear its uniform, whose names shall be borne upon its register, whomay be assigned by their superior officers to specified duties by detail as other officers are, .

. . are still n ot in the military service”); United States ex re l. Pasela v. Fenno

, 167 F.2d 593, 595 (2d Cir. 1948) (finding that Fleet Reservists qualify as members of the “naval forces” as they “remain subject to call to active duty”); Hostin sk y v. United States

, 292 F.2d 508, 509

– 10 (C t . C l . 1961) ( noting that a retired officer of the Navy, receiving longevity retired pay, could not hold another office in the civil service entitling Case: 20-1856 Document: 70 Page: 13 Filed: 01/20/2022NICELY v. US 14

him to compensation); Lemly v. United States

, 109 Ct. Cl. 760, 763 (1948) (stating that an officer retired from active duty, who is receiving retirement pay, “is still subject to call to activ e duty” and “is still an officer in the service of his country”); McCarty v. McCarty , 453 U.S. 2 10, 211 (1981) ( concluding that, upon dissolution of marriage, “federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws”)

. 1
As the Claims Court correctly noted, however, these cases “provide no support for [Nicely’s] position as they address narrow issues of military retired pay, the now

- repealed prohibition on dual office holding, and court

- martial jurisdiction of former military members. ” Nicely

, 147 Fed. Cl. at 74 1 n.12. The fact that one can be subject to certain restrictions bas ed on his or her former military and current pay status does not answer the question whether that retiree is a civilian under § 1552(a)(1)

. Importantly, n one of the cases on which Nicely relies stand for

1 At oral argument, counsel for Nicely cited a recent decision from the United States Court of Appeals for theArmed Forces for the general proposition that retired members of the military who continue to receive pay remain in the military service of the government. Oral Arg. at 9:33

– 10:21, available at http://oralarguments.cafc.uscourts.gov/ default.aspx?fl=20

- 1856_07062021.mp3 (citing United States v. Begani , Nos. 20

- 0217, 20

- 0327, 2021 WL 26 39319 (C.A.A.F. Jun. 24, 2021)). But Begani

— which found that members of the Navy’s Fleet Reserve could be subject to
court

- martial jurisdiction

— did not consider or otherwise address the question of whether retired military officers acting as civilian empl oyees of a military organization can serve on military correction boards. See Begani , 2021 WL 2639319, at *1. And, even if it had, it would not bind this
court. Case: 20-1856 Document: 70 Page: 14 Filed: 01/20/2022NICELY v. US 15

the proposition that a properly appointed member of the civil service from the executive part of the military organization is prohibited from serving on a correction board merely because they are also retired military

. Accordingly, we hold that the term “civilians” in 10 U.S.C. § 1552(a)(1) include s former and retired members of the military serving in the civilian arm of the military organization at issue

. W e therefore agree with the Claims Court that the BCNR did not act contrary to law or regulation by permitting retired military officers to serv e as members of the Board , albeit based on a different legal rationale

. Id

. at 742.

III. C ONCLUSION We have considered Nicely’s remaining arguments andfind them unpersuasive. Accordingly, we affirm the decision of the Claims Court.

AFFIRMED

C OSTS

No co sts. Case: 20-1856 Document: 70 Page: 15 Filed: 01/20/2022