Manning v. Fanning

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
Martin L. Manning, )
)
Plaintiff, )
)
v. ) Civil No. 14-cv-01995 (APM)
)
Eric Fanning,1 )
)
Defendant. )
_________________________________________ )

MEMORANDUM OPINION

I. INTRODUCTION

In late 1997, Plaintiff Martin L. Manning became eligible to participate in a survivor

benefit plan, based on his years of service in the Armed Forces. At that time, Plaintiff selected his

paraplegic daughter as the beneficiary of the plan, listing her as a “dependent child” on the relevant

form. Fifteen years later, in 2012, Plaintiff applied to the Army Board for Corrections of Military

Records (“ABCMR” or “the Board”), requesting that it change his beneficiary selection, based, in

part, on the fact that his daughter had not met the criteria for a “dependent child” at the time

Plaintiff filled out the form. After several rounds of review by the ABCMR—all of which resulted

in denial of Plaintiff’s application for modification—Plaintiff now brings suit in this court. Among

other requests, he asks the court to void his beneficiary selection, as well as order various changes

to ABCMR forms and regulations. In response, Defendant Eric Fanning, Secretary of the Army,

has filed a Motion to Dismiss and for Summary Judgment. After consideration of the parties’

pleadings and the administrative record, the court grants Defendant’s motion in its entirety.

1
Eric Fanning, Secretary of the Army, substituted as Defendant for John McHugh, former Secretary of the Army,
pursuant to Federal Rule of Civil Procedure 25(d).
I. BACKGROUND

A. Factual Background

At various times since 1969, Plaintiff Martin L. Manning has served his country honorably

in the U.S. Army, the Arizona National Guard, and the U.S. Army Retired Reserve. Administrative

Record, ECF No. 18 [hereinafter A.R.], at 208-09, 370-72, 382, 410. Based on this service, in

September 1997, Plaintiff received a letter notifying him that he was “eligible for retired pay upon

application at age 60.” Id. at 325. As part of his retired pay benefit, Plaintiff also became eligible

to participate in a “Survivor Benefit Plan.” See id. Accordingly, on October 31, 1997, Plaintiff

completed a “Survivor Benefit Plan Election Certificate” (“Form 1883”), on which he listed his

paraplegic daughter as his sole beneficiary, writing her name in the box for “unmarried dependent

children.” Id. at 63, 321; see also Am. Compl., ECF No. 13, ¶ 5. Plaintiff further chose “immediate

coverage” under the plan, selecting the option that would “provide an immediate annuity beginning

on the day after [the] date of [his] death, whether before or after age 60.” A.R. at 321. Form 1883

expressly advised Plaintiff that his decision was “a permanent irrevocable decision” and warned

him to “consider [his] decision and its effect very carefully.” Id. Plaintiff, however, asserts that

his unit’s Personnel Staff Noncommissioned Officer, SFC Stephen F. Schrader, told him that “if

he did not name [his] daughter as [his] beneficiary no one would ever be able to collect any benefits

. . . and that [he] would be able to make another election when [he] turned 60.” Am. Compl. ¶¶

5, 7-8; A.R. at 63, 4.

In 2004, Plaintiff was honorably discharged from the Arizona National Guard, and, later

that year, married his current wife. A.R. at 209. Seven years later, in 2011, during the application

process for retired pay, Plaintiff filled out a form selecting his wife as the sole beneficiary of the

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Survivor Benefit Plan. Id. at 275. In July 2012, however, Plaintiff learned that he was not entitled

to change his previous selection of his daughter as his beneficiary. Id. at 5.

B. Procedural History

A month later, Plaintiff sought relief from the Army Board for Corrections of Military

Records (“ABCMR” or “the Board”), requesting that his original Form 1883 be modified to state

that he “decline[s] to make an election at this time.” Id. at 213. After his application was denied

on March 27, 2013, id. at 206-212, Plaintiff submitted a request for reconsideration, id. at 138-

141. The Board re-reviewed Plaintiff’s application, but once again, on May 28, 2014, the Board

denied Plaintiff’s request to void his beneficiary election. Id. at 128-137.

On November 20, 2014, Plaintiff filed suit before this court, challenging the ABCMR’s

decision. See generally Compl., ECF No. 1. Several months later, on February 2, 2015, pursuant

to a request by Defendant, the case was remanded to the ABCMR, so that the Board could better

explain how it had distinguished Plaintiff’s case from a previous, similar, ABCMR case. See Order

of Feb. 4, 2015, ECF No. 7. Plaintiff also was permitted to submit additional arguments and

materials to the Board. See Def.’s Mot. to Dismiss and for Summ. J., ECF No. 14 [hereinafter

Def.’s Mot.], Def.’s Statement of Facts, ECF No. 14-1, ¶ 19 (citing A.R. 22-124). Nonetheless,

on September 17, 2015, the ABCMR again denied Plaintiff his requested relief. A.R. at 3-21. A

month later, Plaintiff filed his Amended Complaint, challenging the ABCMR’s decision, as well

as a related procedural regulation concerning requests for reconsideration. See generally Am.

Compl. In response, Defendant filed a Motion to Dismiss and for Summary Judgment. See

generally Def.’s Mot.

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III. STANDARD OF REVIEW

In its Motion, Defendant contends that: (1) Plaintiff lacks standing to bring his claims

regarding the ABCMR’s procedural regulation and, therefore, those claims should be dismissed

under Federal Rule of Civil Procedure 12(b)(1); and (2) Defendant is entitled to summary

judgment on Plaintiff’s claims regarding the ABCMR’s decision not to modify his records,

because the ABCMR did not act arbitrarily and capriciously or otherwise contrary to law. See

generally id.

A. Motion to Dismiss

On a motion to dismiss for lack of standing brought under Rule 12(b)(1), a federal court

must presume that it “lack[s] jurisdiction unless the contrary appears affirmatively from the

record.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006) (citation and internal

quotation marks omitted). The burden of establishing the elements of standing “rests upon the

party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A plaintiff must establish standing “for

each claim” and “for each form of relief sought,” DaimlerChrysler, 547 U.S. at 352 (citation and

internal quotation marks omitted), “with the manner and degree of evidence required at the

successive stages of litigation,” Lujan, 504 U.S. at 561.

When assessing a motion to dismiss predicated on lack of standing, the court must accept

“well-pleaded factual allegations as true and draw all reasonable inferences from those allegations

in the plaintiff's favor.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). The court is not

required to assume the truth of legal conclusions or accept inferences that are not supported by the

facts set out in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Islamic Am. Relief

Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007). “Threadbare recitals of the elements of

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[standing], supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. If

a complaint lacks sufficient facts “to state a claim [of standing] that is plausible on its face,” the

court must dismiss it. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also

Arpaio, 797 F.3d at 19. When a court is assessing a Rule 12(b)(1) motion, it has broad discretion

to consider materials outside the pleadings if they are competent and relevant. Finca Santa Elena,

Inc. v. U.S. Army Corps of Eng’rs, 873 F. Supp. 2d 363, 368 (D.D.C. 2012) (citing 5B Charles

Wright & Arthur Miller, Federal Practice & Procedure § 1350 (3d ed. 2004)).

Although pro se complaints are held to a less strict standard than lawyer-drafted

complaints, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be

liberally construed . . . .”) (citation and internal quotation marks omitted), a court need not make

or accept inferences that are unsupported by allegations of fact, see Henthorn v. Dept. of Navy, 29

F.3d 682, 684 (D.C.Cir.1994). Ultimately, however, a pro se plaintiff “must present a claim upon

which relief can be granted.” Id. (citation and internal quotation marks omitted).

B. Review of the ABCMR’s Decision

It is well established that federal courts have the competency to review the decision of a

military board of correction using “familiar principles of administrative law.” Kreis v. Sec’y of

Air Force, 866 F.2d 1508, 1511.2 Such review is limited, however. As stated in Kreis:

“Adjudication of these claims requires the district court to determine only whether the Secretary’s

decision making process was deficient, not whether his decision was correct.” Id. The court

performs “nothing more than the normal review of agency action” and “require[s] only that the

2
See also, e.g., Coburn v. McHugh, 679 F.3d 924, 929 (D.C. Cir. 2012) (reviewing a military board decision under
the standards of the APA and administrative case law); Piersall v. Winter, 435 F.3d. 319, 322 (D.C. Cir. 2006) (same);
Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997) (same); Wilhelmus v. Geren, 796 F. Supp. 2d 157, 160 (D.D.C.
2011) (same); Pettiford v. Sec'y of Navy, 774 F. Supp. 2d 173, 182-83 (D.D.C. 2011) (same); Rudo v. Geren, 818 F.
Supp. 2d 17, 25 (D.D.C. 2011) (same); Poole v. Harvey, 571 F. Supp. 2d 120, 124 (D.D.C. 2008) (same).

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agency exercise its discretion in a reasoned manner, but . . . defer[s] to the agency’s ultimate

substantive decision.” Id. at 1512. “The focal point for [such] judicial review should be the

administrative record already in existence, not some new record made initially in the reviewing

court.” Camp v. Pitts, 411 U.S. 138, 142 (D.D.C. 2010).

Summary judgment is the “mechanism” by which the court may review the agency action

to ensure that it “is supported by the administrative record and is otherwise consistent with the

APA standard of review.” Se. Conference v. Vilsack, 684 F. Supp. 2d 135, 142 (D.D.C. 2010).

Under the APA, a court must set aside an agency action, finding, or conclusion if it is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A)

(2012). Judicial review under the “arbitrary and capricious” standard is “highly deferential” and

“presumes the agency’s action to be valid.”3 Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283

(D.C. Cir. 1981).

IV. DISCUSSION

The court first considers Plaintiff’s arguments regarding the Board’s denial of his

application for correction. It then turns to his challenge of the Army regulation concerning requests

for reconsideration.

3
The D.C. Circuit has in some cases applied an “unusually deferential” standard of review to military board decisions.
See, e.g., Kreis, 866 F.2d at 1514; Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). See also Albino v. United
States, 78 F. Supp. 3d 148, 164 (D.D.C. 2015); Escobedo v. Green, 602 F. Supp. 2d 244, 248 (D.D.C. 2009). The
heightened level of deference is intended to prevent overuse of the courts by soldiers dissatisfied with their ratings.
Cone, 223 F.3d at 792. However, the D.C. Circuit has also suggested that the circumstances in which the “unusually
deferential” standard should be applied may be limited. See Kreis v. Sec’y of Air Force, 406 F.3d 684, 686 (D.C. Cir.
2005) (stating that traditional APA deference is warranted when a court reviews a decision of the ABCMR involving
“a procedural regulation governing its case adjudication process,” rather than “military judgment requiring military
expertise”). See also Wilhelmus, 796 F. Supp. 2d at 161-62 (reaffirming the distinction established in Kreis, 406 F.3d
at 686, and finding that the “traditional APA standard should be applied” where plaintiff made “non-frivolous claims
of plain legal error” that raised “issues of procedural fairness”). Here, it is irrelevant whether the court uses the
“unusually deferential” standard of review or the traditional standard of deference under the APA. Ultimately, the
result would be the same.

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 A. The ABCMR’s Decision

Defendant contends that summary judgment should be entered in its favor because the

Board’s decision not to amend Plaintiff’s Form 1883 “was supported by substantial evidence” and

“was not arbitrary and capricious or otherwise contrary to law or regulation.” Def.’s Mot. at 1.

Plaintiff, on the other hand, as best the court can tell, offers three reasons why the ABCMR’s

decision was, in fact, unsupported, arbitrary, and capricious. See generally Pl.’s Opp’n to Def.’s

Mot. to Dismiss, Statement of Facts, ECF No. 16 [hereinafter Pl.’s Opp’n]. Specifically, Plaintiff

argues that Defendant: (1) inappropriately applied the definition of “dependent child” under 10

U.S.C. § 1447, id. at 10-13; (2) neglected to refer to Arizona law in reaching its decision, id. at 11;

and (3) failed to follow precedent or provide a reasoned explanation for its decision, see generally

id. The court addresses each of these arguments in turn.

1. The ABCMR’s Definition of “Dependent Child”

According to Plaintiff, “[t]he ABCMR continually tries to interpret 10 U.S.C. § 1447 [the

relevant federal statute] as granting dependency to the Plaintiff[’]s daughter, when it is clear at the

time of [Plaintiff’s] beneficiary election on . . . [F]orm 1883 . . . , she was not a dependent.” Id. at

12. Because his daughter did not actually meet the criteria for a “dependent child” under the

relevant law, Plaintiff argues, his selection of her as his beneficiary should be void. See id. at 10-

12.

Section 1447 sets forth the definition of a “dependent child” under the Survivor Benefit

Plan at issue in this case. It states that a “dependent child” is a person who:

(i) is unmarried;

(ii) is (I) under 18 years of age, (II) at least 18, but under 22, years of age and pursuing
a full-time course of study or training . . . , or (III) incapable of self support because
of a mental of physical incapacity existing before the person’s eighteenth birthday
or incurred on or after that birthday, but before the person’s twenty-second

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 birthday, while pursuing a full-time course of study or training; and

(iii) is the child of a person to whom the Plan applies, including (I) an adopted child,
and (II) a stepchild, foster child, or recognized natural child who lived with that
person in a regular parent-child relationship.

10 U.S.C. § 1447(11) (2012). Focusing on the third of these three criteria, Plaintiff appears to

argue that the Board committed a legal error when it decided the clause “who lived with that person

in a regular parent-child relationship” applies only to those categories of children that are listed

after the word “including,” rather than to all categories of eligible dependent children (i.e., even

categories not listed). A.R. at 25; see also Pl.’s Opp’n at 10-12; see also Am. Compl. ¶ 11.

Plaintiff further contends that if the Board had applied Plaintiff’s broader reading of the statute—

requiring all children to have “lived with [the applicant] in a regular parent-child relationship”—

it would not have found that his daughter was an eligible beneficiary at the time he designated her,

because she was not then living with him. A.R. at 25; see also Pl.’s Opp’n at 10-12; see also Am.

Compl. ¶ 11.

Plaintiff’s understanding of the statute, however, is inconsistent with its plain text. The

statute’s key words are not those that come after the word “including,” but those that come before.

At its core, the third criteria for identifying a “dependent child” simply requires that the beneficiary

be “the child of a person to whom the Plan applies.” 10 U.S.C. § 1447(11)(iii). And, as the Board

found, Plaintiff’s daughter plainly met that requirement. A.R. at 19 (finding the third criteria was

satisfied “[b]ecause Plaintiff’s daughter is his biological offspring born during marriage”).

The phrase on which Plaintiff focuses—“who lived with that person in a regular parent-

child relationship”—does not change that conclusion, because it does not modify “the child of a

person to whom the Plan applies.” Instead, it follows the word “including.” As the Supreme Court

has observed, “the term ‘including’ is not one of all-embracing definition, but connotes simply an

8
illustrative application of the general principle.” Fed. Land Bank of St. Paul v. Bismarck Lumber

Co., 314 U.S. 95, 100 (1941) (citation omitted).

So it is here. In identifying “a stepchild, foster child, or recognized natural child who lived

with that person in a regular parent-child relationship,” the statute is simply illustrating examples

of the types of parent-child relationships which might qualify a child as an eligible “child of a

person to whom the Plan applies.” It highlights that both natural and non-natural born children

can be designated as a beneficiary. It does not, however, require all eligible children to have “lived

with [the member receiving benefits] in a regular parent-child relationship.” The Board’s refusal

to apply the “regular parent-child relationship” requirement to Plaintiff’s case, A.R. at 19; Pl.’s

Opp’n at 13-14, was therefore appropriate.4

2. Refusal to Apply Arizona Law

Plaintiff also contends that the ABCMR made a second legal error by refusing to consider

Arizona state law when determining whether his daughter was an eligible beneficiary at the time

he made his election. See Pl.’s Opp’n at 11. “Because the federal courts recognize that the states

establish custody and dependency in the matters of divorce,” Plaintiff argues, “the ABCMR is

obligated to consider the actual custody of the Plaintiff[’]s daughter [i]n that Arizona law considers

a minor child to be an adult upon reaching the age of 18 years.” Pl.’s Opp’n at 11.

Plaintiff is correct that “domestic relations” traditionally have been considered the realm

of state courts and state law. See, e.g., Boggs v. Boggs, 520 U.S. 833, 848 (1997) (“As a general

matter, ‘[t]he whole subject of the domestic relations of husband and wife, parent and child,

4
Moreover, even if the language of Section 1447 could be construed to require Plaintiff’s daughter to have “lived with
[Plaintiff] in a regular parent-child relationship,” Plaintiff’s daughter met that criteria at the time of Plaintiff’s
beneficiary election. Although Plaintiff’s daughter was abducted by her mother in 1983, Plaintiff previously had been
granted full custody of his daughter in 1979. A.R. at 23. Presumably then, Plaintiff’s daughter did live with him in a
regular parent-child relationship until the time of her abduction. Plaintiff offers no evidence to the contrary.

9
belongs to the laws of the States and not to the laws of the United States.’” (citation omitted)).

This case, however, is not a case about domestic relations. It is a case about the correction of a

federal record, which affects the application of a federal program, which was created by federal

statute. The controlling law, therefore, is federal law.

Here, the governing federal statutory scheme which established the Survivor Benefit Plan

specifically defines the term “dependent child.” 10 U.S.C. § 1447(11). And that definition does

not itself make any reference to any state law. There is no way, then, that state law is relevant to

the Board’s determination of whether Plaintiff’s daughter was an eligible dependent child

beneficiary. See, e.g., First Nat. Bank in Plant City, Fla. v. Dickinson, 396 U.S. 122, 133-34

(1969) (noting that it would be “an improbable result” to allow States to define the content of the

banking term “branch” where Congress included a general definition of the term “branch”). The

Board concluded as much in its opinion, stating that “[Plaintiff] has cited no authority, nor can this

Board find any, indicating that state law should be considered as controlling authority, or even

persuasive authority, when determining whether a child beneficiary meets dependency

requirements.” A.R. at 17-18. The ABCMR’s decision not to apply Arizona state law was proper.

3. The Arbitrary and Capriciousness of the ABCMR’s Decision and its
Inconsistency with Prior Decisions

In addition to his contentions regarding the Board’s improper application of the “regular

child-parent relationship” provision and its failure to use Arizona state law, Defendant argues more

broadly that the ABCMR’s decision not to alter or void his Form 1883 was arbitrary and

capricious. Part of the Board’s error, Plaintiff contends, stems from Defendant’s failure to follow

its own relevant past decisions as well as a relevant decision of the Comptroller General.

Defendant, however, asserts that “the [Board] supplied the requisite satisfactory explanation and

rational connection between the facts and [it] decision.” Def.’s Mot. at 12. The court addresses

10
each aspect of Plaintiff’s argument below.

a. The ABCMR has provided a rational explanation for its decision

A plaintiff challenging the decision of a board of correction, as here, must overcome a

“strong but rebuttable presumption that administrators of the military . . . discharge their duties,

correctly, lawfully, and in good faith.” Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997). The

decision itself need not be a “model of analytic precision.” Dickson v. Sec’y of Defense, 68 F.3d

1396, 1404 (D.C. Cir. 1995). See also, e.g., Frizelle, 111 F.3d at 176; Albino v. United States, 78

F. Supp. 3d at 163-65 (D.D.C. Jan. 15, 2015). As long as the Board has “examine[d] the relevant

data and articulate[d] a satisfactory explanation for its action including a ‘rational connection

between the facts found and the choice made,’” the court will not overturn its decision. Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (citing

Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). See also, e.g., Frizelle, 111

F.3d at 176; Rudo v. Geren, 818 F. Supp. 2d 17, 24 (D.D.C. 2011).

A board of correction’s decision will not pass muster, however, if it does not adequately

address a petitioner’s non-frivolous argument. See Saint-Fleur v. McHugh, 83 F. Supp. 3d 149,

155 (D.D.C. 2015) (collecting cases). It is not enough for the board merely to acknowledge that

an argument exists, Rudo, 818 F. Supp. 2d at 26-27, or to “identify a plaintiff’s non-frivolous

arguments without responding to them, either by addressing the arguments’ merits or explaining

why they need not be addressed,” Albino, 78 F. Supp. 3d at 167. Instead, the board of correction’s

decision must provide an explanation that enables a reviewing court to evaluate the rationale

behind its decision. Dickson, 68 F.3d at 1404. The board of correction must provide, in short, “a

reason that a court can measure.” Kreis, 866 F.2d at 1514. It cannot, however, retroactively justify

its decision during court proceedings. El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t

11
of Health & Human Servs., 396 F.3d 1265, 1276 (D.C. Cir. 2005).

Here, the Board has sufficiently explained how it reached the conclusion that it would not

void or alter Plaintiff’s selection of his daughter as his beneficiary on Form 1883. In its opinion

of September 17, 2015, it noted that the

evidence clearly shows the applicant was single and indicated that he had a
dependent child when he completed his . . . Form 1883. . . . His daughter . . .
appeared to be an eligible beneficiary, and it is reasonable to assume applicant
considered her to be an eligible beneficiary at the time he chose her as the . . . sole
beneficiary.

A.R. at 18. The Board continued, “[b]y completing the . . . Form 1883 and authenticating it with

his signature, [Plaintiff] affirmatively made his daughter an eligible beneficiary and acknowledged

he understood the decision he made.” Id. Finding that there was insufficient evidence to support

Plaintiff’s allegation that his daughter had been ineligible for benefits at that time and that his Form

1883 therefore should be voided, the Board concluded that “[Plaintiff’s] claim that [his daughter]

was, or is, an ineligible dependent is unsubstantiated.” Id.

The Board further determined that there was no injustice or inequitable treatment affecting

Plaintiff that would warrant a change to the record. Because both the government and Plaintiff

incurred obligations and benefits as a result of his beneficiary election, the Board wrote that

“[Plaintiff] cannot claim an injustice in this case nor can he claim he was treated inequitably.” Id.

at 19. In sum, the ABCMR explained:

There is no evidence suggesting the applicant’s [Form 1883] processing was
improper or inequitable, or that the previous decisions of the ABCMR pertaining
to [Plaintiff’s] specific case were arbitrary or capricious. These decisions were
clearly supported by the available evidence of record and by the absence of
compelling independent evidence provided by the applicant. There is no evidence
of an error or injustice.

Id.

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 The court finds the Board’s explanation for its denial of Plaintiff’s application for

correction to be both rational and sufficient. See Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43. As

established by federal regulation, the Board “is not an investigative body,” 32 C.F.R.

§ 581.3(c)(2)(iii) (2005), and it must presume that the records it reviews are valid, id.

§ 581.3(e)(2). Therefore, the burden is on Plaintiff to overcome the “presumption of regularity”

of the records and provide sufficient evidence to permit the Board to decide that, “on the evidence

of the record,” “an error or injustice has occurred” which must be remedied. Id. § 581.3(e)(2),

(c)(2)(iii); see also id. § 581.3(e)(2)(iii) (noting that the applicant must prove such error or injustice

“by a preponderance of the evidence”).

Applied here, these regulations mean that the Board was required to presume that

Plaintiff’s Form 1883 was correct. Thus, Plaintiff—not the Board—needed to demonstrate that

his Form 1883 actually was incorrect or that some other injustice had occurred that would warrant

a change to the form. Yet Plaintiff provided the ABCMR with minimal evidence that would

support such a change. In defense of his claim, Plaintiff argued that the evidence demonstrated

that his daughter was not an eligible beneficiary at the time he named her because she did not meet

the second eligibility criteria under Section 1447—specifically, she was not between the ages of

18 and 22 and incapable of self-support. See, e.g., Pl.’s Opp’n at 3-7, 12-14; A.R. at 217. But

the only evidence Plaintiff provided to support his assertion that his daughter was actually capable

of self-support was a copy of a deed showing that she had purchased a house for $10. A.R. at 12.

As aptly stated by Defendant, however, “the fact that Plaintiff’s ‘daughter was deeded real property

for ten dollars does not in and of itself establish that she was or is capable [of] self support.’”

Def.’s Mot. at 15 (citing A.R. at 18). Without additional support from Plaintiff—such as a sworn

affidavit from Plaintiff’s daughter—the Board reasonably found that the presumption of regularity

13
outweighed the minimal evidence offered to show that Form 1883 contained an error or evidenced

injustice. See A.R. at 19.

Similarly, the Board adequately and rationally addressed Plaintiff’s assertion that he was

misguided or coerced by another service member into selecting his daughter as his beneficiary.

See id. at 4, 22-24. Faced with a Board directed to presume the regularity of the record before it,

Plaintiff provided no corroborating evidence in support of his claim. Once again, the Board

reasonably concluded that without such “corroborating evidence in support of this allegation,” id.

at 18, the Board could not find that Plaintiff’s Form 1883 selection had been made in error or

constituted an injustice. Put simply, the ABCMR’s assertion throughout its opinion that Plaintiff

simply had not provided sufficient evidence to permit it to rule in his favor—and that there was

actually significant evidence countering Plaintiff’s position—is neither arbitrary nor capricious

and provides no grounds for remand.

b. The ABCMR reasonably distinguished related precedent

Plaintiff also asserts that the ABCMR’s decision was arbitrary and capricious specifically

because it failed to adequately distinguish three decisions—one opinion of the Comptroller

General and two opinions of the Board itself—involving similar circumstances. See Pl.’s Opp’n

at 16-19. The court acknowledges that none of these decisions are strictly binding on the ABCMR.

See Bowsher v. Synar, 478 U.S. 714, 727-32 (1986) (finding that the Comptroller General is

independent of the Executive Branch); see also Kreis v. Sec’y of the Air Force, 406 F.3d 684, 352

(D.C. Cir. 2005) (requiring a “reasoned explanation” from the Air Force Board for the Correction

of Military Records where it denied reconsideration in a case that was similar to another case in

which reconsideration was granted).

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 But even though the Board is not required to “grapple with every last one of its precedents,

no matter how distinguishable,” Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112,

1120 (D.C. Cir. 2010) (citation omitted), “[n]ormally, an agency must adhere to its precedents in

adjudicating cases before it,” id. (citation omitted). If it does not follow its own precedent, the

Board “must provide an adequate explanation to justify treating similarly situated parties

differently.” Wilhelmus v. Geren, 796 F. Supp. 2d 157, 162 (D.D.C. 2011) (quoting Burlington N.

& Santa Fe Ry. Co. v. Surface Transp. Bd., 403 F.3d 771, 776 (D.C. Cir. 2005)) (internal quotation

marks omitted). And, separately, the Board is required to respond to non-frivolous arguments

made by an applicant. See Frizelle, 111 F.3d at 177 (holding that the Coast Guard Board of

Correction of Military Records decision was arbitrary where it failed to respond to two arguments

that were facially non-frivolous and could have affected the matter's ultimate disposition). Thus,

the court analyzes the three decisions referenced by Plaintiff to determine if the Board addressed

them appropriately in its ruling.

First, the court turns to Matter of: Sergeant Theopria James (Retired) (Deceased), B-

252930, 1993 WL 566319 (Comp. Gen. Sept. 24, 1993), which is the Comptroller General case

referenced by Plaintiff in his Amended Complaint and Opposition.5 See Am. Compl. ¶ 20; Pl.’s

Opp’n at 16-17. This case was not addressed by the Board in any of its opinions regarding

Plaintiff’s application for correction. In its Motion to Dismiss, however, Defendant appears to

contend that it was not required to discuss Theopria James because it “is not relevant to Plaintiff’s

complaint.” Def.’s Mot. at 18. Defendant notes that “the decisions of the Comptroller General

are not binding upon the executive branch,” id. (citing Bowsher, 478 U.S. at 727-32), implying

5
As Defendant aptly noted, Plaintiff cites this case as “57 Comp. Gen. 426,” but based on the quotations and evidence
submitted to the Board, it is clear that he is referring to Matter of: Sergeant Theopria James. See Def.’s Reply, ECF
No. 17, at 3 n.1.

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that consideration of the Comptroller General case would not compel any change to the Board’s

decision. The court agrees with this assessment and finds that, because the case does not constitute

binding precedent and is not substantively relevant, as discussed below, the application of

Theopria James to this case is frivolous. It therefore did not warrant discussion by the Board.

In Theopria James, it came to light after a soldier died that he had not divorced his first

wife before marrying his second wife. 1993 WL 566319 at *1. The Comptroller General therefore

held that his current wife could not be considered an eligible widow beneficiary and revoked the

annuity payments made to her under the Survivor Benefit Plan. Id. at *1-2. Plaintiff argues that

this decision proves that the selection of an ineligible beneficiary voids the election. Am. Compl

¶ 13 (“I quote ‘We have held that where a member is required make an affirmative election to

participate in the [Survivor Benefit Plan] and indicated an ineligible beneficiary, the election to

participate is defective and must be considered invalid.’”) (emphasis omitted). As Defendant

argues, however, Theopria James is readily distinguishable from the case before the court.

Whereas, in that case, a void marriage was proven, here, Plaintiff “failed to demonstrate that his

daughter was in fact an ineligible beneficiary.” Def.’s Mot. at 18. The court finds that Defendant

has rationally distinguished Theopria James from this case and thus it would be futile for the court

to remand the case so that the parties could address it—particularly because the Board is not

required to address frivolous arguments.

Next, the court addresses ABCMR case 20050002726. Plaintiff claims that ABCMR case

20050002726 contradicts the ABCMR’s statement in his case that “[t]here is no requirement [for

an applicant] to supply evidence of disability or fulltime school enrollment at the time [a] child

only [Survivor Benefit Plan] is elected.” Am. Compl. ¶ 17 (emphasis omitted); A.R. at 18. In

ABCMR case 20050002726, a U.S. Army Reserve officer applied to have his Form 1883 election

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corrected, based on the fact that his son had been ineligible for benefits at the time the officer made

his beneficiary selection. A.R. at 107-11. Because the U.S. Army had failed to require the

applicant to “provide proof that the child listed on his . . . Form 1883 was eligible for the [Survivor

Benefit Plan]” at the time he made the election, the Board found that the Form 1883 at issue should

be corrected. Id. at 110. The underlying implication is that if such a requirement does exist—if

an applicant must provide proof of his beneficiary’s eligibility at the time he chooses that

beneficiary—then that requirement was not met in Plaintiff’s case. Therefore, the invalidation of

Plaintiff’s beneficiary selection would be warranted.

Although the Board arguably did not adequately address this cited case in its initial decision

or decision after reconsideration, Defendant asked the court for a remand to allow the ABCMR to

provide more substantial explanation as to why ABCMR case 20050002726 did not apply.

See Def.’s Unopposed Mot. to Remand to Army, ECF No. 6. The court agreed to remand the case

to the Board. Order of Feb. 4, 2015, ECF No. 7. As a result, the Board, in its most recent decision,

remedied its earlier lack of attention to ABCMR case 20050002726 and sufficiently explained the

reasons that it did not affect the Board’s conclusion in this case.

While acknowledging that “equity requires that similar cases be handled in a similar

fashion,” A.R. at 17, the Board explained that ABCMR case 20050002726 is both factually and

legally distinguishable from Plaintiff’s case. Regarding the varying facts at issue, the Board noted

that “[i]n contrast to the 2005 cited case, the record in this case contains ample evidence that

applicant did in fact have a dependent daughter and that he made the rational and informed choice

to designate her as an eligible SBP beneficiary.” Id. at 20. Regarding differences in the application

of the law, the Board admitted that it had been wrong in previously concluding that applicants

were required to prove the eligibility of their beneficiaries at the time the beneficiaries were

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selected. Id. at 17 (finding that the Board in ABCMR case 20050002726 had “erroneously based

the rationale for granting the requested relief on the presumption that there was a governmental

obligation to require . . . participants to provide documentary evidence of eligibility . . . when

making an election for participation”). It further noted that Plaintiff had been unable to identify

any federal law setting forth such a requirement. Id.

Had the Board justified its decision in Plaintiff’s case purely on a new legal interpretation

of the appropriate time at which an applicant must establish a beneficiary’s eligibility, the court

might consider such a retroactive action to be arbitrary and capricious. Because, however, the

ABCMR distinguished the two decisions based not only on its new understanding of the law, but

also on significant differences in the factual records, the court finds that the Board’s decision not

to apply ABCMR case 20050002726 was a rational one. The court understands Plaintiff’s

frustration that the Board has used his case to acknowledge error in an earlier one. The Board,

however, has not acted arbitrarily and capriciously in so doing.

Finally, the court turns to ABCMR case AR2003087551. Because Plaintiff first referenced

the case in his Opposition, see Pl.’s Opp’n at 19, there is no mention of the case in any of the

ABCMR’s decisions—nor should there be. The Board cannot be expected to have addressed the

case when the argument was not even before it. Therefore, the absence of any discussion about

the case in the Board’s decisions was not arbitrary and capricious.

ABCMR case AR2003087551 involved a dependent who requested that the ABCMR alter

her father’s Form 1883 to reflect that she had a physical disability before her eighteenth birthday,

and thus, was entitled to benefits. Pl.’s Opp’n, Ex., at 1. The Board concluded that, even though

the dependent’s name was listed on the form as an eligible beneficiary, it “[wa]s insufficient

evidence to show [that the dependent] met the statutory definition of a ‘dependent child.’” Id. at

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3. Without any other evidence to support her claim, the Board found that the child had not actually

been an eligible dependent and therefore refused to alter the record. Id. at 4. Plaintiff argues that

this precedent “clearly demonstrates [the Board’s] intent that the mere election [of a beneficiary]

alone does not obligate the [government] to provide benefits to the elected person. The ABCMR

expects that to receive benefits the elected person must meet the qualifications spelled out in the

appropriate law.” Pl.’s Opp’n at 17. In other words, Plaintiff argues that ABCMR case

AR2003087551 demonstrates that the Board should not recognize Plaintiff’s daughter as his

beneficiary merely because he listed her as such.

Although the Board had no obligation to address ABCMR case AR2003087551, Defendant

did address the case in its Reply brief. See Def.’s Reply, ECF No. 17, at 4. As Defendant argues,

ABCMR case AR2003087551 does not aid Plaintiff because, ultimately, the case stands for the

proposition that an applicant seeking records correction bears the burden of showing that the record

warrants correction. Just as in AR2003087551, Plaintiff here did not meet this burden of proof

and therefore the Board denied his application for correction. The Board’s application of ABCMR

case AR2003087551 would not change that outcome.

***

For the reasons stated above, the court finds that the ABCMR appropriately applied

relevant law to reach a rational decision that was neither arbitrary, nor capricious, nor contrary to

law. Accordingly, Defendant’s Motion for Summary Judgment is granted.

B. Plaintiff’s Challenge to the Army’s Procedural Regulation

In addition to challenging the ABCMR’s decision as arbitrary and capricious, Plaintiff

contends that Army regulation AR15-185 violates his Fifth and Fourteenth Amendment rights.

See Pl.’s Opp’n at 3-4. AR15-185 governs the method by which the Board handles requests for

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reconsideration. It states, in relevant part, that “[i]f the ABCMR receives a request for

reconsideration . . . after the ABCMR has already considered one request for reconsideration, then

the case will be returned without action and the applicant will be advised the next remedy is appeal

to a court of appropriate jurisdiction.” Am. Compl., Ex. 11. Plaintiff requests, among other

remedies, that the court declare the regulation invalid and order the Secretary of the Army to

modify the regulation to mirror similar Air Force and Navy regulations. Am. Compl. ¶¶ 35-36.

Defendant, for its part, contends that these allegations should be dismissed for lack of standing.

See Def.’s Mot. at 10-12. The court agrees. Plaintiff has no standing to bring these claims.

“[T]he irreducible constitutional minimum of standing contains three elements.” Lujan,

504 U.S. at 560. A plaintiff must show that: (1) he has suffered an actual or imminent, concrete

and particularized injury-in-fact; (2) there is a causal connection between the injury and the

complained-of action; and (3) the injury is likely to be redressed by a favorable decision. Id. at

560-61. Here, Plaintiff has alleged no causal connection between his claimed injury-in-fact—the

rejection of his application for correction—and the challenged Army regulation. Although

Plaintiff contested the Board’s initial decision—which it affirmed after reconsideration—he never

requested a second round of reconsideration. Plaintiff admits as much. Pl.’s Opp’n at 2-3 (“The

record does show that the [initial] request for reconsideration was adjudicated, but because it is in

the Plaintiff[’]s belief that the outcome was wrong and in violation of the statutes, a further request

for reconsideration of the violation of the law could not be submitted.”). Plaintiff argues that “[t]he

regulation barred [him] from making any further request.” Id. at 3. Yet because he did not even

try to submit a second request for reconsideration—and thus, he was never actually denied a second

reconsideration—Plaintiff cannot establish that he was injured by the Board’s application of

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AR15-185. In fact, none of the Board’s rulings even mention AR15-185 as the basis for its

decision on the merits.

The ABCMR’s decisions regarding Plaintiff’s request for correction are traceable only to

the merits of Plaintiff’s application for correction. Without having alleged a causal connection

between his supposed injuries and the Army regulation about which he complains, Plaintiff lacks

standing to challenge AR15-185. Defendant’s Motion to Dismiss therefore is granted.

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss and for Summary Judgment is

granted and this action is dismissed in its entirety without prejudice. A separate order accompanies

this Memorandum Opinion.

Dated: September 29, 2016 Amit P. Mehta
United States District Judge

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