concurring in part and dissenting in part.
I respectfully dissent from the portion of the court’s judgment holding that Mr. Clary is entitled to military retirement benefits. In order to be entitled to those benefits, Mr. Clary had to be “eligible for voluntary retirement” on the date of his removal from active duty. 10 U.S.C. § 1186(b)(1). In my view, Mr. Clary was not “eligible for retirement” at the time he was removed, and he therefore was not entitled to the retirement benefits awarded him by the Court of Federal Claims.
The purpose underlying section 1186 is to ensure that once a service member has qualified for retirement, an administrative discharge will not deprive the service member of his or her retirement benefits. A service member typically qualifies for retirement after 20 years of active duty. In 1992, however, Congress granted the service secretaries temporary authority to offer early retirement to selected service members with at least 15 years of active duty service. See National Defense Authorization Act for Fiscal Year 1993, Pub.L. No. 102-484, § 4403, 106 Stat. 2315, 2702-04 (1992). The 1992 statute was designed “to provide the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces through 1995.” Id. § 4403(a). Section 4403(b)(2)(A) authorized the Secretary of the Navy to apply the provisions of the pertinent retirement authorization statute, 10 U.S.C. § 6323, to naval officers who had accumulated 15 years of active duty service, rather than the 20 years of active duty service that would otherwise be required. Section 4403(d) provided that each service secretary “may prescribe regulations and policies regarding the criteria for eligibility for early retirement by reason of eligibility pursuant to this section *1353and for approval of applications for such retirement. Such criteria may include factors such as grade, years of service, and skill.”
The court today holds that because the Secretary of the Navy had the authority to grant early retirement to an officer in Mr. Clary’s position, Mr. Clary must be considered to have been “eligible” for retirement within the meaning of section 1186(b)(1). I disagree. On November 6, 1993, some six months before Mr. Clary’s administrative discharge, the Chief of Naval Personnel (“CNP”) adopted a policy for the Navy that “if a member requests 15 year retirement and, while eligible in all other respects, has potential or pending adverse disciplinary and/or administrative action,” the member’s request would be denied. That policy was not formally promulgated and published as a regulation prior to Mr. Clary’s discharge, but section 4403(d) does not require such formalities: It applies to both “regulations and policies regarding the criteria for eligibility for early retirement.” Moreover, section 4403(d) provided that the “criteria for eligibility” could include factors “such as” grade, years of service, and skill, and the legislative history of that provision makes clear that the criteria for eligibility were “not limited to such factors.” See H. Rep. No. 102-966, 102d Cong., 2d Sess. 886 (1992), reprinted in 1992 U.S.C.C.A.N. 1769, 1928. Because one of the “criteria for eligibility” adopted by the Secretary of the Navy excluded persons who were subject to administrative discharge, Mr. Clary was not “eligible for voluntary retirement” within the meaning of section 1186(b)(1) at the time of his discharge.
The court characterizes the CNP’s November 6, 1993, action making persons who receive administrative discharges ineligible for retirement under TERA as merely a proposal for a policy change, which was not formally adopted until July 1994, several months after Mr. Clary’s discharge. In fact, however, the evidence of record makes clear that the Navy regarded the November 6, 1993, action as adopting the policy that the Navy applied in denying Mr. Clary’s request for retirement under TERA. In an October 19, 1995, memorandum to the Board for Correction of Naval Records, the Bureau of Naval Personnel explained that Mr. Clary’s case led to the Navy’s consideration of whether “officers undergoing disciplinary processing should be permitted to retire under the discretionary TERA law” and resulted in the November 6, 1993, “policy decision,” which was approved by the CNP with the concurrence of the Assistant Secretary of the Navy for Manpower and Reserve Affairs. The memorandum states that the November 6, 1993, policy decision “became part of the statutorily authorized TERA implementing regulations when it was made by CNP with the concurrence of [the Assistant Secretary] on 6 November 1993,” and that the November 6 policy decision “was applied when [the Assistant Secretary] approved the recommendation .that LCDR Clary be separated with a General discharge, thus disapproving his request for 15 year retirement, on 29 March 1994.” Because the evidence shows that the Navy adopted that policy prior to Mr. Clary’s discharge and. applied it to him at that time, and because there was nothing in the July 1993 regulation referred to by the court that is contrary to the November 6, 1993, policy decision, that policy decision qualifies as a valid policy “regarding the criteria for eligibility for early retirement” within the meaning of Section 4403(d). I would therefore reverse the decision of the Court of Federal Claims granting Mr. Clary retirement benefits.