CAMERON v. USA

Filing 46

PUBLISHED OPINION denying 32 Motion for Judgment on the Administrative Record; denying 37 Motion for Judgment on the Administrative Record; denying 34 Motion to Dismiss - Rule 12(b)(1); granting 34 Motion for Judgment on the Administrative Record. The Clerk is directed to enter judgment. Signed by Judge Nancy B. Firestone. (rh4) Copy to parties.

In the United States Court of Federal Claims
No. 10-696C
(Filed: September 7, 2012)

DANIEL E. CAMERON,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

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Military Pay Act; whether Army failed to
follow its own directives and regulations
is a justiciable issue; an agency’s
construction of its own regulations is
entitled to deference; Army Regulation
135-18; National Guard Bureau had
discretion to interpret “eligible” to
exclude Active Guard Reserve (“AGR”)
officer in Title 32 (state-level) AGR
program on a time-limited tour in Title 10
(federal-level) AGR status from eligibility
for consideration by a Title 10
continuation board for continuation of
active federal service beyond 20 years.

Chester H. Morgan, II, Colorado Springs, CO, for plaintiff.
Douglas K. Mickel, United States Department of Justice, Washington, DC, with whom
were Stuart F. Delery, Acting Assistant Attorney General, and Jeanne E. Davidson,
Director, for defendant.
OPINION
FIRESTONE, Judge.
This case involves a challenge by the plaintiff, Colonel Daniel Cameron (“Colonel
Cameron”), a former member of the Active Guard Reserve (“AGR”), 1 to a decision of the

1

The purpose of the AGR Program is to “meet the full-time support requirements for [Army National
Guard of the United States] and [United States Army Reserves] projects and programs.” Army
Regulation (“AR”) 135-18 ¶ 1-6 (All references to AR 135-18 are to the December 10, 2003 version of
AR 135-18, unless the prior June 19, 1996 version was in effect and was materially different.). The
Program includes soldiers in the Army National Guard of the United States (“ARNGUS”) and United
States Army Reserves (“USAR”). AR 135-18 ¶ 1-1. Colonel Cameron was an ARNGUS soldier.

Army Board for Correction of Military Records (“ABCMR”) denying Colonel
Cameron’s claim for relief. Colonel Cameron claims that he was wrongfully discharged
from active duty after 20 years of service without consideration by a retention board in
violation of Army Regulation (“AR”) 135-18 ¶ 4-7. 2 He seeks to be restored to active
duty pending consideration by a retention board as well as accompanying back pay and
allowances.
Presently pending before the court is Colonel Cameron’s motion for judgment on
the administrative record. Also pending is the motion of the United States (“the
government”) to dismiss Colonel Cameron’s complaint for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Rules of the United States Court of Federal Claims
(“RCFC”) for failure to state a money-mandating claim, or, in the alternative for failure
to state a claim upon which relief can be granted under RCFC 12(b)(6). The government
argues that Colonel Cameron’s claim is nonjusticiable. Should the court deny its motion
to dismiss, the government seeks judgment on the administrative record.
2

AR 135-18 was amended while Colonel Cameron was on active duty and during the time he claims he
was denied consideration by a retention board. The original provision in AR 135-18 regarding “Selective
Retention” stated:
All AGR officer personnel will be released from AD [active duty] . . . . when they have
attained 20 years and 1 month of qualifying service. . . .
a. AGR officers . . . may request retention . . . . Requests will be submitted when the
soldier completes 19 years of such service. The requests will be sent through command
channels. . . .
AR 135-18 ¶ 4-12 (June 19, 1996). On December 10, 2003, effective January 12, 2004, AR 135-18 was
amended to provide a new board process for retention, which states in relevant part: “AGR
commissioned officers and warrant officers may be retained on [active duty] beyond 20 years of [active
service] through a board process, convened at least annually. Consideration of eligible officers for
retention is automatic, as such; officers need not apply for retention consideration.” AR 135-18 ¶ 4-7.

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For the reasons set forth below, the court holds that it has subject matter
jurisdiction over Colonel Cameron’s claim and that his claim states a justiciable
controversy. Thus, the government’s motion to dismiss under RCFC 12(b)(1) and RCFC
12(b)(6) is DENIED. The court further finds for the reasons discussed below that
Colonel Cameron was not improperly denied consideration by an active duty retention
board before he was discharged from active duty. Therefore, the ABCMR decision must
be upheld.
I.

BACKGROUND
The events that gave rise to this suit are set forth in the Administrative Record

(“R.”) and are not in dispute. Colonel Cameron enlisted in the Regular Army on January
30, 1981 and began active duty in the U.S. Army Reserve (“USAR”) on March 18, 1983.
Colonel Cameron was released from active duty in the USAR on October 1, 1992 and
accepted an appointment in the Oregon Army National Guard (“ORARNG”) on February
24, 1993. In September 1998, Colonel Cameron entered the AGR Program on full-time
National Guard duty (“FTNGD”) under Title 32 of the United States Code (the “Code”). 3
On May 6, 2002, Colonel Cameron’s unit was ordered to active duty under the authority
of 10 U.S.C. § 12302, and Colonel Cameron’s status changed from Title 32 AGR (state
status) to Title 10 AGR (federal status). On January 28, 2003, Colonel Cameron was

3

All members of the AGR Program serve on active duty (“AD”) in a federal status under Title 10 of the
United States Code or on FTNGD in a state status under Title 32. AR 135-18 ¶ 1-1a-b. Under AR 13518, AGR soldiers are ordered to active duty or FTNGD for an initial 3 year period. Subsequent periods of
duty for AGR officers are for an indefinite period until they have attained 20 years of active federal
service. Id. ¶ 2-6. The same was true when Colonel Cameron joined the AGR Program. AR 135-18 ¶ 29 (June 19, 1996).

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released from active duty and reverted to his Title 32 AGR status in the ORARNG.
Colonel Cameron was promoted to Colonel (O-6) effective September 29, 2003.
On August 19, 2003, the National Guard Bureau (“NGB”) 4 ordered Colonel
Cameron to active duty. The orders stated that “the soldier is transferring from Title 32
AGR, to Title 10 AGR.” R. 119. The purpose of the transfer was for Colonel Cameron
to serve as a “NORTHCOM MISSILE DEFENSE OFFICER.” Id. The orders stated that
the assignment was “voluntary” and that he was “continued on active duty with his
consent and the consent of the Governor of the State of Oregon.” R. 118. The orders
provided that Colonel Cameron would be serving for “Two years and Five months (01
October 2003-28 February 2006.” Id. The orders concluded by stating that “[t]his is a
one time, occasional tour.” R. 119. In the portion marked, “FOR ARMY USE,” the
orders indicated that he was ordered into active duty under 10 U.S.C. § 12301(d) 5 and
was not to be accessed into the strength of the active army. R. 118-19.
Because Colonel Cameron would have completed twenty years of active service
on or about January 27, 2006, these orders extended his service beyond twenty years.

4

The NGB is responsible for managing all ARNGUS related matters in the AGR Program. AR 135-18 ¶
1-4d (“The Chief, National Guard Bureau (CNGB) will . . . under overall Army policy, develop and
implement policies and procedures for efficient management and effective use of the ARNGUS AGR
personnel force. Such policies will be within the guidelines of the program prescribed by this
regulation.”).
5

At any time, an authority designated by the Secretary concerned may order a member of a
reserve component under his jurisdiction to active duty, or retain him on active duty, with
the consent of that member. However, a member of the Army National Guard of the
United States or the Air National Guard of the United States may not be ordered to active
duty under this subsection without the consent of the governor or other appropriate
authority of the State concerned.

10 U.S.C. § 12301(d).

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Pursuant to AR 135-18, “unless an AGR officer is approved for retention [in accordance
with paragraph 4-7] he or she will be released from [active duty] or [full-time National
Guard duty]” upon reaching twenty years of active service. AR 135-18 ¶ 2-6b. Upon
reaching twenty years of active service, AGR soldiers can remain on active duty or
FTNGD if they are selected for retention. Under the version of AR 135-18 in effect on
October 1, 2003, when Colonel Cameron was ordered to active duty, officers had to
apply for retention to the National Guard Bureau. AR 135-18 ¶ 4-12 (June 19, 1996).
Effective January 14, 2004, the Army amended AR 135-18 to provide for consideration
for retention by “retention boards.” See AR 135-18 ¶ 4-7. As noted above, supra note 2,
the amended regulation also provided that “consideration of eligible officers for retention
is automatic . . . [and] officers need not apply for retention consideration.” AR 135-18 ¶
4-7b(1). Under this version of AR 135-18, boards are to be “convened at least annually.”
AR 135-18 ¶ 4-7b.
Before AR 135-18 was amended, and while Colonel Cameron was on active duty,
the Assistant Secretary of the Army for Manpower and Reserve Affairs wrote to the head
of the NGB, on February 11, 2003, announcing a retention procedure that was then
incorporated into the AR 135-18 amendments. R. 22. The February 11, 2003
memorandum states: “Effective the date of this memorandum, all AGR officers, to
include warrant officers and commissioned warrant officers, who are retained beyond 20
years of AFS [active federal service], will be retained through a board process based on
Department of the Army standards.” Id. The memorandum also made clear that
consideration for retention would be “automatic.” Id.
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On September 3, 2003, the NGB issued instructions for implementing the
February 11, 2003 order, in a memorandum entitled, the “2004 Army National Guard
(ARNG) AGR Active Federal Service Tour Continuation Board (AFSTCB).” R. 37.
According to the September 3, 2003, memorandum, officers who fall within the “zone of
consideration” and serving under state authority in the ARNGUS as FTNGD under Title
32 would be boarded by the states. Id. ARNGUS soldiers serving on active duty under
Title 10 would be boarded by the NGB. Id. The NGB memorandum further advised that
“states and territories may conduct an AFSTCB [Active Federal Service Tour
Continuation Board] at anytime during the period 1 December 2003 to 31 January 2004,
to consider eligible Title 32 AGR officers . . . who fall within the zone of consideration
for extension beyond 20 years and one month of [active federal service].” Id. The
memorandum went on to state that “[t]he [NGB] will conduct the AFSTCB during the
same period for Title 10 AGR officers who fall within the zone of consideration.” Id.
The zone of consideration was defined in the memorandum as “[o]fficers who will
achieve 19 years or more of [active service] from 1 July 2004 through 30 September
2005.” Id.
On October 9, 2003, the NGB issued a memorandum announcing the 2004 Army
National Guard AGR Active Federal Service Tour Continuation Board. R. 120. The
memorandum stated: “On 12 January 2004, a board will convene to evaluate all Title
10/AGR officers, at the officer’s option, who will either reach 19 years of [active federal

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service] or whose current extension will end, between 1 July 2004 and 30 September
2005.” Id. 6
Although Colonel Cameron was on active duty in Title 10 status and would reach
nineteen years of active service in January 2005, he did not receive a copy of the October
9, 2003 memorandum or any other notice of the 2004 ARNG AGR Tour Continuation
Board. Nonetheless, Colonel Cameron learned of its existence and contacted the NGB
via telephone on December 10, 2003 to ask why he had not received notification. Later
that day, Colonel Cameron sent an e-mail to another NGB officer, Colonel Douglas Pritt.
In his e-mail to Colonel Pritt, Colonel Cameron explained that he had just telephoned
Colonel Owens, the Division Chief of the Office of Staff Management at NGB, and had
learned from Colonel Owens that he was ineligible to apply for continuation of active
duty because his orders were for a limited period of service as a Title 10 officer. Colonel
Cameron’s e-mail stated that he “want[ed] to keep serving, had planned to, and until this
afternoon never realized that NGB did not see that as an option.” R. 129.
On December 22, 2003, Colonel Pritt e-mailed Colonel Cameron to announce that
Colonel Studer, Chief of Staff of ORARNG, “will have a face to face meeting with the
tours branch week of 12-16 Jan to review your situation.” R. 127. The e-mail went on to
state that Colonel Studer would speak with the ARNG Director “so we can get you
considered for extension and other follow on assignments.” R. 127. The next day,
Colonel Pritt e-mailed Colonel Cameron again, explaining: “Your command time,
6

On December 3, 2003, ORARNG issued a memorandum announcing that its Title 32/AGR status
continuation board would convene on January 26, 2004. That board did not select any Title 32/AGR
officers for continuation. R. 9.

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deployment and experience make you the ideal person to extend on active duty. I am
sure COL Studer will get the message to the correct people to get this fixed and if he
can’t then we will go back to LTG Schultz who was involved in your selection for your
current assignment.” R. 124.
On January 28, 2004, after Colonel Studer learned that Colonel Cameron was on
active duty for only a limited period of time “so that [he could be promoted] and serve
out 20 years and then retire,” R. 127, Colonel Studer e-mailed Colonel Cameron asking
Colonel Cameron to explain his understanding of the situation. Colonel Cameron
responded the following day. He stated that while he was aware of the limitation in his
orders he did not believe that they could not be changed. R. 126. The e-mail chain
concluded with a message from Colonel Studer to Colonel Cameron in which Colonel
Studer claimed that he would “see if we have any ability to argue for you . . . to stay on
Title X once you complete 20 y[ea]rs of service.” R. 126.
On May 31, 2005, while still on active duty at NORTHCOM, Colonel Cameron
sent an application for an active duty tour extension beyond 20 years directly to the Chief
of the NGB, through the Adjutant General of the ORARNG. R. 130. Colonel Cameron
sought to continue serving in his “Title 10 Tour to US Northern Command, assigned as
the Joint Operations Team Chief within the Standing Joint Force Headquarters – North
Directorate.” R. 130. Colonel Cameron stated in his request that his current active duty
tour would expire on February 28, 2006 and that he requested an extension through
August 31, 2007. Colonel Cameron attached, as part of his request, the endorsements
from two of his then current supervisors. A third letter of endorsement was sent to the
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Chief of the NGB on June 2, 2005. Colonel Cameron never received an official response
to his request.
Thereafter, USNORTHCOM sent three requests seeking to retain Colonel
Cameron. On January 9, 2006, USNORTHCOM sent the NGB a memorandum, asking
that Colonel Cameron, who was to be retired effective February 28, 2006, “be recalled to
active duty to fill the position designated below within [USNORTHCOM] with report
date of 1 March 2006.” R. 134. Ten days later, the Director of Manpower and Personnel
for USNORTHCOM contacted the NGB again, explaining that retaining Colonel
Cameron on active duty would “provide critical continuity to USNORTHCOM’s
Standing Joint Force Headquarters.” R. 133. On March 3, 2006, USNORTHCOM sent a
third petition to the NGB, once again asking that they retain Colonel Cameron on active
duty. None of these requests were answered.
Colonel Cameron’s active duty tour ended on February 28, 2006 and he was
retired from the ARNGUS, effective March 1, 2006. Thereafter, Colonel Cameron began
collecting an annuity at the pay grade of Colonel (O-6).
On June 1, 2006, Colonel Cameron submitted to the ABCMR a request for
correction of his record and reinstatement to active duty, claiming that the Army had
wrongfully discharged him from active duty when it failed to consider him for continued
active duty as a Title 10 AGR officer, in contravention of Army regulations. The
ABCMR sought and received an advisory opinion from the NGB regarding Colonel
Cameron’s claim, in which the Chief of the NGB Personnel Division “recommend[ed]
disapproval on COL (Ret) Cameron’s request.” R. 108. In its opinion letter, the NGB
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explained that “for officers brought into the T-10 [Title 10] Tour, they are brought on a
one time, one tour (OTOT) for no more than three years and extensions for continuation
are not approved.” R. 110. Additionally, the opinion stated that “officers are briefed
before they come into the program,” and thus presumably understand that their tours will
not be extended. R. 110. The NGB opinion goes on to state that “most officers, once
they complete the tour, revert back to the State of origin as either T-32 (AGR) or M-day
if the State has an authorized position.” R. 110. The ABCMR denied Colonel
Cameron’s request on March 26, 2007. In its opinion, the ABCMR stated, in part:
It is unfortunate that an officer of the applicant’s caliber was not eligible to
have his records reviewed by the AFSTCB, and subsequently selected for
retention beyond 20 years. This was not an oversight. . . . It appears that
the applicant was not eligible for consideration for retention [on active
duty] based on the fact that he was on a one time tour.
R. 100.
Colonel Cameron filed a second request for relief with the ABCMR on October 9,
2007. In this request he cited the amended AR 135-18, which as previously noted states,
in relevant part:
AGR commissioned officers and warrant officers may be retained on AD
[active duty] beyond 20 years of AS [active service] through a board
process, convened at least annually. Consideration of eligible officers for
retention is automatic, as such; officers need not apply for retention
consideration.
AR 135-18 ¶ 4-7b. Based on the language in the above-quoted regulation, Colonel
Cameron argued that as an AGR officer on “active duty” when he reached 19 years of
service, he was entitled to automatic consideration by a board authorized to extend his
active duty.
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The ABCMR denied Colonel Cameron’s second request for relief on April 10,
2008, stating that he “should not have received board consideration” since he “was not in
the zone of consideration for the [2004 AFSTCB].” R. 88. In its second denial opinion,
the ABCMR acknowledged that Colonel Cameron’s supervisors had endorsed his
continuation on active duty but noted that “[c]learly [Colonel Cameron] was not simply
overlooked.” R. 88.
Colonel Cameron filed a third request for correction of his record to the ABCMR
on March 20, 2009. On September 17, 2009, the ABCMR rejected his third request. In
its denial, the ABCMR acknowledged that the “wording [of the April 2008 basis for
denial] regarding the zone of consideration . . . may be imprecise.” R. 77. The ABCMR
stated that there was never any dispute that Colonel Cameron was within the zone of
consideration based on his 19 years of service. The critical issue concerned his
“eligibility” for retention in Title 10 status. The ABCMR denied Colonel Cameron’s
request on the grounds that he failed to meet the “eligibility” criteria set by the NGB.
Specifically, the ABCMR explained that Colonel Cameron was “ineligible” for
continuation on active duty “based on the then existing NGB policy regarding Title 10
active duty tour policy (sic) for Army National Guard officers.” R. 77. Under that
policy, the ABCMR explained, AGR officers serving on “one time tours of [active] duty”
were not “eligible” for continued service on active duty and could only be extended by
the National Guard in their state. 7

7

On October 13, 2004, the NGB issued guidance for the 2005 Active Service Continuation Boards under
AR 135-18. The guidance provided that “Eligible Officers” include “ARNG Title 10/32 AGR officers

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Colonel Cameron filed suit in the United States District Court for the District of
Colorado on February 16, 2010. That court issued an order transferring Colonel
Cameron’s case to the United States Court of Federal Claims on August 12, 2010, and
Colonel Cameron filed a verified complaint with this court on November 15, 2010. Once
the case was transferred, the government requested that the matter be remanded to the
ABCMR for yet another round of consideration. The court granted that motion on
February 18, 2011.
Following remand, the ABCMR requested a second advisory opinion from the
NGB aimed specifically at Colonel Cameron’s rights under the amended AR 135-18. The
ABCMR asked the NGB for its opinion on whether “[u]nder the terms of AR 135-18 in
effect in 2004, should Colonel Cameron have been considered by the 2004 ARNG AGR
[AFSTCB for Title 10 officers]?” R. 23. On September 23, 2011, the NGB provided the
ABCMR with the requested advisory opinion, reiterating that Colonel Cameron was not
eligible for consideration by the 2004 ARNG AGR continuation board. The NGB noted
that under the version of AR 135-18 that was in effect when the January 12, 2004 board
was announced on October 9, 2003, “officers are released from active duty when they
have attained 20 years of [active service],” unless extended. R. 24. According to the
advisory opinion, AR 135-18 did not implement the continuation board system until its
November 1, 2004 revision, which was promulgated after the January board convened.
In addition, the NGB explained that the “[USNORTHCOM (where Col. Cameron was
who have 19 or more years of AS on or before 1 October 2005 and 30 September 2006 will be included
for consideration. . . . Officers who are currently on an approved AS continuation, whose continuation
expires on or between 1 October 2005 and 30 September 2006 are also included.” R. 16.

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stationed)] was a relatively new [command],” R. 25, and that “[t]o fill this new
command’s Title 10 AGR requirements career AGRs were reassigned and one time
occasional tour officers were put on orders to meet the demand.” R. 25.
The NGB advisory opinion to the ABCMR concluded as follows:
since [Cameron] was on a one time occasional tour, as evidenced by his
original Title 10 AGR order, he was not being integrated into the career
Title 10 program. There was no expectation or desire on part of the Title
10 program to utilize the officer beyond the time period on his original
order. . . . He was not notified along with the rest of the career Title [10]
AGRs of the [AFSTCB] because he was on an occasional tour and when
the issue arose he was reminded that he was on a one time occasional tour
and would not be boarded by the Title 10 AGR program. . . . COL Cameron
and his state were both informed, since his onetime tour was ending in the
Title 10 AGR program, that if the state intended to return him to Title 32
AGR status at the end of his tour, then the state must include him in their
board. This was consistent with the management of each program
separately to meet the needs of each program.
R. 25.
In response to the ABCMR’s specific question as to whether there were any
regulations that expressly precluded Colonel Cameron from being boarded for continued
active duty, the NGB explained that “[t]here was no specific written regulation that
addresses this issue. By the terms of its definition and as evidenced by the order, a
onetime occasional tour is one time. . . . Not considering one time occasional tour officers
. . . was consistent with regulation, policy and practice.” R. 26.
The ABCMR also sought and received an advisory opinion from the ORARNG,
dated April 27, 2011. The ORARNG advisory opinion stated, in part, as follows:
COL Cameron was on active duty orders under authority Title 10 USC
12301(d). . . . COL Cameron’s Official Military Personnel File (OMPF)
should have been reviewed by the 2004 [AFSTCB] based on the criteria
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sent by NGB for Title 10 officers. The comment from NGB stating that he
was a Title 10 officer but not on a Title 10 program is NOT accurate.
States were not authorized to review Title 10 officers per NGB guidance.
R. 57-58.
Following receipt of the NGB and Oregon advisory opinions, the ABCMR once
again denied Colonel Cameron’s request for reinstatement, back pay, and consideration
by a Title 10 continuation board. R. 9. In its November 8, 2011, decision, the ABCMR
explained that Colonel Cameron was a Title 32 AGR officer who was subject to state
authority. Id. The ABCMR further explained that Colonel Cameron’s August 19, 2003
orders “transferred the applicant from Title 32 AGR status to Title 10 AGR status for a
‘one time occasional tour,’” R. 5, but that serving in “Title 10 AGR status” did not
transfer Colonel Cameron into the “Title 10 AGR program.” R. 9 at ¶ 3. He was given a
“temporary” as opposed to “indefinite” tour. R. 9 at ¶ 4. As such, the ABCMR
concluded, Colonel Cameron was entitled only to consideration for continuation beyond
20 years by the ORARNG continuation board and “unfortunately for him, his State did
not continue any Oregon Title 32 Program officers beyond 20 years of service.” R. 9 at ¶
6.
After receipt of the ABCMR’s November 2011 decision, the case was scheduled
for briefing. The government filed the administrative record on January 5, 2012. On
March 2, 2012, Colonel Cameron filed his motion for judgment on the administrative
record. That same day, the government filed its motion to dismiss, or, in the alternative
motion for judgment on the administrative record. After briefing on these motions was
completed, the court held oral argument on August 8, 2012.
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II.

DISCUSSION
A.

The court possesses subject matter jurisdiction over Colonel
Cameron’s claim.

The government moves to dismiss Colonel Cameron’s case for lack of subject
matter jurisdiction on the grounds that he has failed to state a money-mandating claim.
Although the Tucker Act vests the Court of Federal Claims with jurisdiction over claims
against the government for money damages, “it does not create any substantive right
enforceable against the United States for money damages.” United States v. Testan, 424
U.S. 392, 398 (1976). In order for this court to have jurisdiction over a claim for money
damages, the plaintiff “must identify a separate source of substantive law that creates the
right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)
(en banc in relevant part). The standard of review for a motion to dismiss for lack of
subject-matter jurisdiction under RCFC 12(b)(1) is well-settled. The plaintiff bears the
burden of establishing subject-matter jurisdiction by a preponderance of the evidence.
Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011); M.
Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). When
a party has moved to dismiss for lack of subject matter jurisdiction, the alleged facts in
the complaint are viewed as true. Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326
(Fed. Cir. 2002) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Likewise, this
court must “draw all reasonable inferences in [plaintiff’s favor].” Anaheim Gardens v.

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United States, 444 F.3d 1309, 1314-15 (Fed. Cir. 2006) (quoting Gould, Inc. v. United
States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)).
The government initially moved to dismiss Colonel Cameron’s claim for lack of
jurisdiction for failure to invoke a money mandating statute. Def.’s Mot. to Dismiss at
15. In response, Colonel Cameron has clarified that he seeks back pay pursuant to the
Military Pay Act, 37 U.S.C. § 204. Pl.’s Resp. at 14. The government concedes that if
Colonel Cameron has invoked 37 U.S.C. § 204, then the court possesses jurisdiction over
this case. Def.’s Reply at 1. The court finds that Colonel Cameron has met his burden to
establish subject-matter jurisdiction. Colonel Cameron claims that he was wrongfully
discharged from active duty. If he is correct, he “retains the right to basic pay.” Sobczak
v. United States, 93 Fed. Cl. 625, 631-32 (2010); Stuart v. United States, 100 Fed. Cl. 74,
76 (2011). For this reason, this court has jurisdiction over his claim. Murphy v. United
States, 993 F.2d 871, 872 (Fed. Cir. 1993) (“Because he claims monetary relief, that he
was entitled to compensation unless properly released from active duty, the Claims Court
ha[s] jurisdiction.”); Stuart, 100 Fed. Cl. at 76. The government’s motion to dismiss for
lack of subject matter jurisdiction is DENIED.
B.

Colonel Cameron’s claim is justiciable.

Alternatively, the government moves to dismiss for failure to state a claim upon
which relief can be granted, arguing that Colonel Cameron’s claim is nonjusticiable. The
existence of jurisdiction does not confirm the court’s ability to supply relief. Murphy,
993 F.2d at 872. The issue must also be justiciable; it must be within the competency of
the court. Id. “Justiciability is distinct from jurisdiction; it depends on ‘whether the duty
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asserted can be judicially identified and its breach judicially determined, and whether
protection for the right asserted can be judicially molded.’” Id. (quoting Baker v. Carr,
369 U.S. 186, 198 (1962)); Yoge v. United States, 844 F.2d 776, 780 (Fed. Cir. 1988)
(An issue is nonjusticiable if there are no clear “tests and standards which [the courts] can
soundly administer within their special field of competence.”). Where a claim is
nonjusticiable, the appropriate action is for a court to dismiss the claim for failure to state
a claim upon which relief can be granted. Id.
To avoid dismissal for failure to state a claim upon which relief may be granted
under RCFC 12(b)(6), the complaint must contain facts sufficient to “‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff’s factual
allegations must “raise a right to relief above the speculative level” and cross “the line
from conceivable to plausible.” Bell Atl. Corp., 550 U.S. at 555. “A pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’ . . . Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp., 550 U.S.
at 555, 557). In considering a motion under RCFC 12(b)(6), “the court must accept as
true the complaint’s undisputed factual allegations and should construe them in a light
most favorable to the plaintiff.” Cambridge v. United States, 558 F.3d 1331, 1335 (Fed.
Cir. 2009) (citing Papasan v. Allain, 478 U.S. 265, 283 (1986); Gould, Inc. v. United
States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)).

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Judicial review is appropriate where the military’s discretion is limited, and
Congress has established “tests and standards” against which the court can measure its
conduct. See Murphy, 993 F.2d at 873; Sargisson v. United States, 913 F.2d 918, 922
(Fed. Cir. 1990). “Because ‘decisions as to the composition, training, equipping, and
control of a military force are essentially professional military judgments,’ the substance
of such decisions . . . is frequently beyond the institutional competence of courts to
review.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (quoting
Gilligan v. Morgan, 413 U.S. 1, 10 (1973); citing Voge, 844 F.2d at 780). “Judgments
made by military officials or administrative bodies that a particular officer does not merit
promotion or retention fall into this category, and courts will refuse on jurisprudential
grounds to review such decisions, even if the court has jurisdiction to do so.” Id. Thus,
the Court of Federal Claims will not “review those specific conclusions of military
review boards that speak to the question of whether an officer deserved to be promoted or
retained in service.” Id.
Nevertheless, even where the military is given unlimited discretion by Congress, it
is bound to follow its own procedural regulations if it chooses to implement some.
Murphy, 993 F.2d at 873 (citing Sargisson, 913 F.2d at 921); Lindsay, 295 F.3d at 1257
(“The military no less than any other organ of the government is bound by statute, and
even when granted unfettered discretion by Congress the military must abide by its own
procedural regulations should it choose to promulgate them.”); Adkins v. United States,
68 F.3d 1317, 1323 (Fed. Cir. 1995) (“[A]lthough the merits of a decision committed
wholly to the discretion of the military are not subject to judicial review, a challenge to
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the particular procedure followed in rendering a military decision may present a
justiciable controversy.”) (emphasis in original). “A court may appropriately decide
whether the military followed procedures because by their nature the procedures limit the
military’s discretion. The court . . . merely determines whether the procedures were
followed by applying the facts to the statutory or regulatory standard.” Murphy, 993 F.2d
at 873. Accordingly, where, as here, the military has established procedures for
determining the eligibility of a member for consideration by a retention board, a claim for
relief based on an alleged failure to follow those procedures states a justiciable
controversy. In this case, Colonel Cameron’s complaint alleges that he was denied pay
because the Army failed to follow its own directives and regulations by not bringing his
record before a continuation board as he alleges it was required to do. Whether the
regulations compel this result is a determination within the scope of judicial competence,
and therefore the ABCMR’s decision with respect to the Army’s alleged procedural
failure is reviewable by this court. Accordingly, the government’s motion to dismiss
Colonel Cameron’s claim for failure to state a claim upon which relief can be granted is
DENIED.
C.

The ABCMR decision is not arbitrary, capricious, or contrary to law.

The parties have cross-moved for judgment on the administrative record under
RCFC 52.1. Pursuant to 10 U.S.C. §1552(a)(1), the ABCMR has broad authority to
correct inaccurate military records. “In reviewing a decision of a military corrections
board, the court seeks to determine ‘whether the decision is arbitrary, capricious,
unsupported by substantial evidence, or contrary to law.’” Lewis v. United States, 458
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F.3d 1372, 1376 (Fed. Cir. 2006) (citing Porter v. United States, 163 F.3d 1304, 1312
(Fed. Cir. 1998)); see also Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir.
2005) (citing Haselrig v. United States, 333 F.3d 1354, 1355 (Fed. Cir. 2003)).
To make that decision, the court must limit its review to the administrative record
as it was presented to the ABCMR. Metz v. United States, 466 F.3d 991, 998 (Fed. Cir.
2006). In reviewing the administrative record, this court recognizes the strong
presumption that military officials, including those sitting on the ABCMR, have acted in
accordance with the law. Bockoven v. United States, 727 F.2d 1558, 1563 (Fed. Cir.
1984); Bernard v. United States, 59 Fed. Cl. 497, 501 (2004). Notwithstanding that
deference, the military must follow any regulations it issues. Fisher, 402 F.3d at 1177
(citing Murphy, 993 F.2d at 873).
A regulation is construed in the same manner as a statute, by ascertaining its plain
meaning. Lengerich v. Dep’t of Interior, 454 F.3d 1367, 1370 (Fed. Cir. 2006) (citing
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414-15 (1945)). “In interpreting a
regulatory provision, we examine the text of the regulation as a whole, reconciling the
section in question with sections related to it. Lengerich, 454 F.3d at 1370 (citing
Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1577-78). In addition, “an agency’s
construction of its own regulations is entitled to substantial deference.” Id. at 1372
(quoting Lyng v. Payne, 476 U.S. 926, 939 (1986); Martin v. Occupational Safety &
Health Review Comm’n, 499 U.S. 144, 150 (1991)). To merit deference, an agency’s
interpretation “(1) must have been directed to regulatory language that is unclear, (2)
must have been actually applied in the present agency action, and (3) must not be plainly
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erroneous or inconsistent with the regulation.” Id. (quoting Gose v. U.S. Postal Serv., 451
F.3d 831, 833 (Fed. Cir. 2006)). The court defers to an agency’s interpretation of its
regulations, even in a legal brief, unless the interpretation is “‘plainly erroneous or
inconsistent with the regulation[s]’” or there is any other “‘reason to suspect that the
interpretation does not reflect the agency’s fair and considered judgment on the matter in
question.’[ 8]” Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011) (quoting
Auer, 519 U.S. at 461, 462); Talk America, Inc. v. Michigan Bell Telephone Co., 131 S.
Ct. 2254, 2260-61 (2011) (same); Reizenstein v. Shinseki, 583 F.3d 1331, 1335-36 (Fed.
Cir. 2009) (same).
Colonel Cameron argues that the ABCMR’s decision must be reversed because
under the plain wording of AR 135-18, as amended, he was entitled to “automatic”
consideration by a Title 10 continuation board. Colonel Cameron argues that there is
only a single AGR program and that any Title 10 officer within the zone of consideration,
i.e. with the requisite years of service, had to be considered for continued active duty by a
board authorized to recommend continued active duty service.
The government argues that the ABCMR properly relied on the advisory opinions
of the NGB in denying Colonel Cameron’s request for relief. The government contends

8

This might occur when the agency’s interpretation conflicts with a prior interpretation,
see, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994), or when it
appears that the interpretation is nothing more than a “convenient litigating position,”
Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 213 (1988), or a “‘post hoc
rationalizatio[n]’ advanced by an agency seeking to defend past agency action against
attack,” [Auer v. Robbins, 519 U.S. 452, 462 (1997)] (quoting Bowen, [488 U.S.] at 212;
alteration in original).

Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166-67 (2012).

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that consistent with those NGB opinions, the ABCMR correctly concluded that Colonel
Cameron was not “eligible” for consideration for continued active duty service because
he was only in Title 10 status for a limited one time tour. Therefore, the government
continues, the Army did not err in failing to have an NGB Title 10 continuation board
consider Colonel Cameron for continued active duty. Rather, the ABCMR properly
concluded that only the ORARNG could have continued Colonel Cameron in Title 32
status.
The court agrees with the government and finds for the reasons that follow that the
NGB opinions defining “eligibility” for continued active duty service are entitled
deference and that based on those opinions Colonel Cameron was not “eligible” for
consideration for continued active duty beyond 20 years. As such, the ABCMR decision
must be upheld.
We begin with repeating the relevant language in AR 135-18, which states:
AGR commissioned officers and warrant officers may be retained on AD
beyond 20 years of AS [active service] through a board process, convened
at least annually. Consideration of eligible officers for retention is
automatic, as such; officers need not apply for retention consideration.
AR 135-18 ¶ 4-7b (emphasis added). The term “eligible” is not defined in AR 135-18.
Colonel Cameron argues that a definition is not necessary because the meaning of
“eligible” is clear from the language of the provision. According to Colonel Cameron,
“any” Title 10 AGR officer with 19 years active service was eligible for consideration for
continued active duty. Because Colonel Cameron was in Title 10 status when he reached
19 years, he contends he was entitled to be considered by a board for active duty AGR
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officers. Colonel Cameron argues that any interpretation by the NGB to the contrary is
barred by AR 135-18 ¶ 1-7b, which states that “This regulation takes precedence over
any regulation (or other publication) promulgated pursuant to paragraph 1-4 [which, in
relevant part, gives the Chief of the NGB the right to develop and implement policies
with respect to the ARNGUS AGR].” Paragraph 1-7 goes on to state that, “In cases of
conflict between provisions of this regulation and such publications, this regulation will
govern . . . .” AR 135-18 ¶ 1-7b.
The government argues that the NGB had the authority to determine which active
duty AGR officers could be extended beyond 20 years and that the decision not to have
the NGB board Title 10 AGR officers who had transferred from Title 32 for limited “one
time occasional tours of duty” was rational, consistent with the distinctions drawn
between Title 10 and Title 32 AGR officers in AR 135-18, and entitled to deference. The
government argues that under AR 135-18 some officers are placed in the Title 10
“program” while others are placed on FTNGD in the Title 32 “program.” The
government further argues that while FTNGD AGR officers may switch into the Title 10
program, those Title 32 officers who serve for a limited period of time under orders that
place them on active duty for a one time tour will ordinarily revert to Title 32 status.
Here, the government argues, Colonel Cameron was entitled to consideration for
continuation beyond 20 years under AR 135-18 only by a continuation board established
under that regulation by his home state of Oregon.
The court agrees with the government that the NGB’s reading of AR 135-18 is
rational and entitled to deference. First, the plain language of AR 135-18 does not
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compel the NGB to consider all AGR officers in Title 10 status for continuation on active
duty. AR 135-18 includes the undefined word “eligible.” Because the term is undefined,
the NGB had the authority under AR 135-18 ¶ 1-4 to define the term and make choices
regarding its meaning. AR 135-18 ¶ 1-4d (“The Chief, National Guard Bureau (CNGB)
will . . . . Under overall Army policy, develop and implement policies and procedures for
efficient management and effective use of the ARNGUS AGR personnel force. Such
policies will be within the guidelines of the program prescribed by this regulation.”).
Second, the court finds that the NGB’s decision not to include AGR officers on one time
occasional tours of active duty for consideration by active duty continuation boards was
rational and not precluded by any other provision in AR 135-18. While AR 135-18
provided that AGR officers coming up on 20 years were entitled to consideration for
retention beyond 20 years by some continuation board, the NGB was not required to
ignore an officer’s orders and decide whether the officer should be considered by an
active duty board or FTNGD board in the officer’s state program. Here, Colonel
Cameron’s active duty tour was, by its terms, expressly limited to 2 years and 5 months.
R. 118. Colonel Cameron knew that his status as a Title 10 AGR officer would expire on
a set date regardless of when he reached 20 years. Had he not reached 20 years of
service, he would have likely reverted to his Title 32 status. Under AR 135-18 ¶ 2-6,
upon entering the AGR program AGR officers are ordered to active duty or FTNGD for
“an initial 3 year period” and “subsequent periods of duty for AGR officers . . . [are] for
an indefinite period [up to 20 years unless sooner released or retained].” AR 135-18 ¶ 26b (emphasis added). Thus, Colonel Cameron’s transfer from Title 32 FTNGD status to
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Title 10 active duty status for a limited period of time suggests that, unlike other Title 10
officers who had initially been ordered to active duty and thereafter served for “an
indefinite period” in that status, Colonel Cameron (had he not reached 20 years) would
have been expected to return to the ORARNG and revert to his Title 32 status. In such
circumstances, the NGB’s decision to place with the State the discretion to choose
whether to keep Colonel Cameron beyond 20 years was consistent with AR 135-18. Put
another way, AR 135-18 guaranteed Colonel Cameron the right to be considered by a
continuation board, but not specifically a Title 10 continuation board. The NGB had the
authority and discretion under AR 135-18 to manage the process and to decide, given
Colonel Cameron’s time-limited Title 10 orders, which continuation board should
consider him for continuation beyond 20 years.
Where, as here, the organization charged with implementing the continuation
policy—the NGB—does so in a manner that rationally implements the policy of the
regulation, its decision is entitled to deference. Auer, 519 U.S. at 462-63; Lengerich, 454
F.3d at 1372; Gose, 451 F.3d at 833. 9 The ABCMR’s reliance on the NGB’s eligibility
determination was therefore supported and will be affirmed.

9

For this same reason, the ORARNG’s advisory opinion that Colonel Cameron should have been
considered for retention by a Title 10 continuation board, R. 57-58, is not entitled to deference and is
irrelevant. For the purpose of determining this court’s jurisdiction over Colonel Cameron’s claims, to the
extent the ORARNG erred in failing to consider Colonel Cameron for retention by a Title 32 continuation
board, Colonel Cameron’s dispute is with the State of Oregon and not the United States. Such claims
cannot be brought in this court under the Tucker Act. See United States v. Sherwood, 312 U.S. 584, 588
(1941) (“if the relief sought is against others than the United States the suit as to them must be ignored as
beyond the jurisdiction of the court.”).

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III.

CONCLUSION
For the above-stated reasons, the government’s motion to dismiss for lack of

subject matter jurisdiction and for failure to state a claim upon which relief can be
granted is DENIED. The government’s motion in the alternative for judgment on the
administrative record is GRANTED. The plaintiff’s motion for judgment upon the
administrative record is DENIED. The clerk is directed to enter judgment accordingly.
Each party is to bear its own costs.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Judge

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