UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) WAYNE P. MARTA , ) ) Plaintiff, ) ) v. ) Case No. 20-cv-1020 (APM) ) JOHN E. WHITLEY, Acting Secretary of the ) Army, ) ) Defendant. 1 ) _________________________________________ )
MEMORANDUM OPINION
Plaintiff Lieutenant Colonel Wayne P. Marta attempted to transfer unused Post-9/11
GI Bill education benefits to his dependents after completing his active duty service. His request
was rejected on the ground that such a transfer had to be made while on active duty. Marta then
petitioned the Army Board for Correction of Military Records (“ABCMR” or “the Board”) to
correct his military records to reflect an active-duty election. The Board denied his request.
Marta now claims that the Board’s denial was arbitrary, capricious, unsupported by substantial
evidence, and contrary to law in violation of the Administrative Procedure Act (“APA”). The
court agrees. For the reasons that follow, the court will enter judgment in favor of Marta and
against Defendant, Acting Secretary of the Army John E. Whitley, and remand the case to the
ABCMR for further consideration consistent with this Memorandum Opinion.
1 Pursuant to Federal Rule of Civil Procedure 25(d), the court substitutes John E. Whitley as defendant in this case. I.
A.
In 2008, Congress passed the “Post-9/11 Veterans Education Assistance Act of 2008”
(“Post-9/11 GI Bill” or “the Act”). See 38 U.S.C. § 3301 et seq. The Post-9/11 GI Bill provides
monetary benefits to qualifying service members to assist them in readjusting to civilian life,
particularly through financial assistance for higher education. See id. § 3311(a). The Act
authorizes eligible military personnel to transfer their unused education benefits to family
members, see id. § 3319, but, critical to this case, the Act provides that an individual “may transfer
such entitlement only while serving as a member of the Armed Forces when the transfer is
executed,” id. § 3319(f)(1) (emphasis added). Congress directed the Secretary of Defense to
“prescribe regulations” that “shall specify . . . (A) the manner of authorizing the transfer of
entitlements under this section; (B) the eligibility criteria in accordance with subsection (b); and
(C) the manner and effect of an election to modify or revoke a transfer of entitlement under
subsection (f)(2).” Id. § 3319(j)(1)–(2).
Pursuant to the Act, the Department of Defense (“DOD”) issued Directive-Type
Memorandum 09-003 (“DTM 09-003”), which, among other things, established the policy “for
authorizing the transferability of education benefits.” A.R. at 38. 2 DTM 09-003 directs the
secretaries of military departments to implement policies to “[e]nsure that all eligible active duty
members and members of the Reserve Components are aware that they are automatically eligible
for educational assistance under the Post-9/11 GI Bill program upon serving the required active
duty time,” A.R. at 43, and to “[p]rovide active duty participants and members of the Reserve
Components with qualifying active duty service individual pre-separation or release from active
2 Citations to the Administrative Record (“A.R.”) can be found in the two-volume Joint Appendix, see ECF Nos. 20, 20-1, and 20-2.
2 duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly,” id.
Consistent with the statutory language in section 3319(f), DTM 09-003 also notes that “[a]n
individual approved to transfer entitlement to educational assistance under this section may
transfer such entitlement to the individual’s family member only while serving as a member of the
Armed Forces.” A.R. at 54.
As directed by DTM 09-003, on July 10, 2009, the U.S. Army issued a Post-9/11 GI Bill
Implementation Policy “in order to enhance the Army’s recruiting and retention programs.” A.R.
at 72. The policy provides that “[t]he Commanding General Installation Management Command
[] is responsible for ensuring that Education Services Officers,” among other things,
(4) Conduct mandatory educational benefits counseling for all Soldiers separating from the Army . . . no later than 150 days before separation date . . . [;] (5) Record the . . . counseling statement on DA Form 669 (Army Continuing Education System (ACES) Record) after completion of mandatory counseling . . . [;] [and] (6) Require [the] Soldier’s signature attesting to the receipt of counseling.
A.R. at 73–74. Thus, under both DOD and Army policy, every soldier transitioning out of the
Army was to receive documented counseling on the education benefits available under the
Post-9/11 GI Bill. Such counseling presumably would include direction on the transfer of
education benefits to eligible family members. Marta maintains he never received such
counseling. A.R. at 24. The Army produced no evidence to the contrary.
B.
Marta served in the U.S. Army Reserve for 26 years. See A.R. at 147–48. He was last
recalled to active duty on or about November 10, 2008, and remained on active duty until his
release on May 30, 2012, effectively retiring on June 2, 2012. See id. Marta availed himself of
3 some Post-9/11 GI Bill education benefits but failed to transfer the balance of those benefits to his
children while on active duty. See A.R. at 132, 389.
Approximately three years after retiring, on May 25, 2015, Marta attempted to transfer his
unused education benefits to his children on the Department of Veterans Affairs website, but his
request was denied. See id. Thereafter, Marta filed an application for correction with the ABCMR,
requesting that it “[c]orrect [his] record to reflect an election made to transfer [his] unused
Post-9/11 GI Bill Education Benefits equally to [his] two children.” A.R. at 131. In his
application, Marta argued the DOD was required by 38 U.S.C. § 3323(b) “to give members notice
of their entitlement and rights ‘and other important aspects’ of the education assistance provided
under the statute,” but had failed to do so. See A.R. at 133, 135. Marta asserted that he was not
aware of the rule that education benefits could be transferred only while on active duty. See A.R.
at 132.
On April 7, 2016, the three-member ABCMR unanimously voted to deny Marta’s
application. See A.R. at 383. In its decision, the Board noted Marta “was fully eligible to transfer
his education benefits under the [‘Transfer of Education Benefits,’ or ‘TEB,’ program] prior to
retirement, but did not do so.” A.R. at 389. The ABCMR further explained,
The requirement to transfer the benefit while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board. Because there is no evidence that shows the applicant attempted to transfer the benefit while in an active status, as required by law, there is an insufficient evidentiary basis for granting his requested relief.
Id. The Board also stated that it found Marta’s claim that “DOD was required to personally notify
each and every person who was eligible for the TEB program [to be] without merit.” See id.
On March 20, 2017, Marta filed an application for reconsideration with the ABCMR, again
requesting the same correction of his records. A.R. at 11, 17. In his second application, Marta
4 argued that (1) the Army failed to provide him “individual pre-separation or release from active
duty counseling on the benefits under the Post-9/11 GI Bill,” as required by DTM 09-003; and
(2) Thompson v. United States, 119 F. Supp. 3d 462 (E.D. Va. 2015), a case from the Eastern
District of Virginia, compelled the Board to grant relief in his case. See A.R. at 22–26 (internal
quotation marks omitted).
On January 8, 2020, the Board denied Marta’s request for reconsideration. A.R. at 2–9.
The Board once again pointed out that active-duty status was a pre-condition to transfer education
benefits: “Without taking into effect the alleged lack of notification to transfer education benefits
prior to his retirement, the applicant is advised the requirement is embedded in public law.” A.R.
at 6. The Board also observed that Marta had used some Post-9/11 GI Bill education benefits
while on active duty, a fact the Board found “does not support the alleged lack of knowledge of
the program.” Id. The Board also determined that “[t]here is no evidence that shows [Marta]
attempted to transfer education benefits and that the transfer was not processed and approved in a
timely manner, which would enable the Board to possibly correct the record to show the request
was accepted and approved timely.” Id. “Without such evidence,” the Board explained, it “must
adhere to this law.” Id. Finally, although not expressly mentioning the Eastern District of
Virginia’s decision in Thompson, the Board acknowledged that Marta had brought “[s]imilar
cases” to its attention but said “[e]ach case is considered on its own individual merit.” Id. The
Board concluded that “there is insufficient evidence to amend the previous Board’s decision.” Id.
On April 20, 2020, Plaintiff filed this lawsuit, asserting that the Board’s denial of his
application violated the APA. Compl., ECF No. 1. Plaintiff moved for summary judgment on
August 28, 2020. Pl.’s Mot. for Summ. J. on the A.R., ECF No. 13 [hereinafter Pl.’s Mot.].
5 Defendant cross-moved on October 2, 2020. See Def.’s Cross-Mot. for Summ. J., ECF No. 15
[hereinafter Def.’s Mot.]. The parties’ cross-motions are now ripe for consideration.
II.
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when “the
moving party demonstrates that there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). But in a case involving
review of a final agency action, the Rule 56 standard “does not apply because of the limited role
of a court in reviewing the administrative record.” See AFL-CIO v. Chao, 496 F. Supp. 2d 76, 81
(D.D.C. 2007). Instead, “[g]enerally speaking, district courts reviewing agency action under the
APA’s arbitrary and capricious standard do not resolve factual issues, but operate instead as
appellate courts resolving legal questions.” James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d
1085, 1096 (D.C. Cir. 1996) (citing Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221,
1224 (D.C. Cir. 1993)). The court’s role “is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to make the decision it did.” Charter
Operators of Alaska v. Blank, 844 F. Supp. 2d 122, 127 (D.D.C. 2012) (quoting Occidental Eng’g
Co. v. INS, 753 F.2d 766, 769–70 (9th Cir. 1985)).
Under the APA, courts must set aside an agency action if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law” or “unsupported by substantial
evidence.” 5 U.S.C. § 706(2). “The scope of . . . review under this standard is narrow,” and “a
court is not to substitute its judgment for that of the agency.” Judulang v. Holder, 565 U.S. 42,
52–53 (2011) (cleaned up). The agency must “examine[] the relevant data and articulate[] a
satisfactory explanation for its action, including a rational connection between the facts found and
the choice made.” Stewart v. Stackley, 251 F. Supp. 3d 138, 156 (D.D.C. 2017) (cleaned up); see
6 also Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017) (an agency acts
arbitrarily and capriciously when it “fail[s] to reasonably reflect upon the information contained
in the record and grapple with contrary evidence”). “[C]onclusory statements will not do; an
agency’s statement must be one of reasoning.” Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350
(D.C. Cir. 2014) (cleaned up); see also Butte County v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010)
(“[T]he agency must explain why it decided to act as it did.”).
In reviewing the agency’s explanation, the court must “consider whether the decision was
based on a consideration of the relevant factors and whether there has been a clear error in
judgment.” Bowman Transp., Inc. v. Ark.-Best Motor Freight Sys., 419 U.S. 281, 285 (1974)
(internal quotation marks omitted). An agency decision is arbitrary and capricious where “the
agency has relied on factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation . . . that runs counter to the
evidence before [it], or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. (State
Farm), 463 U.S. 29, 43 (1983). In such cases, the “court should not attempt itself to make up for
such deficiencies.” Id. That is, the court “‘may not supply a reasoned basis for the agency’s action
that the agency itself has not given.’” Id. (quoting SEC v. Chenery Corp., 332 U.S. 194, 196
(1947)).
These general APA principles are imbued with deference to an agency, but Defendant
argues that even more deference is warranted in this case. Defendant contends that the Board’s
decisions must be reviewed under an “‘unusually deferential application of the arbitrary or
capricious standard of the APA.’” Def.’s Mot., Mem. of P. & A. in Supp. of Def.’s Cross-Mot.
for Summ. J. & in Opp’n to Pl.’s Mot. for Summ. J., ECF No. 15-1 [hereinafter Def.’s Br.], at 14
7 (internal quotation marks omitted) (citing Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000);
see Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514–15 (D.C. Cir. 1989); see also Piersall v.
Winter, 435 F.3d 319, 324 (D.C. Cir. 2006) (noting the deferential standard of review applied in
APA cases involving military boards). Marta disagrees. He maintains that because he asks only
that the court review whether the Board properly followed its own procedures, the unusually
deferential standard is inappropriate in this case. See Pl.’s Mem. of P. & A. in Opp’n to Def.’s
Cross-Mot. for Summ. J. & Reply to Def.’s Opp’n to Pl.’s Mot. for Summ. J., ECF No. 17,
[hereinafter Pl.’s Reply], at 1–2.
The D.C. Circuit has explained that the increased deference afforded military board
decisions “stems from statutory language providing that the Secretary of each service of the branch
‘may correct any military record . . . when the Secretary considers it necessary to correct an error
or remove an injustice.’” Hensley v. United States, 292 F. Supp. 3d 399, 408 (D.D.C. 2018)
(quoting 10 U.S.C. § 1552(a)(1)); see Kreis, 866 F.2d at 1513–15. Under this more deferential
standard, “[f]or a plaintiff to overcome the strong presumption that the military administrators
discharged their duties lawfully and in good faith, he must show ‘by cogent and clearly convincing
evidence’ that the [Board’s] decision was the result of an injustice, or material legal error.” Coburn
v. McHugh, 77 F. Supp. 3d 24, 30 (D.D.C. 2014) (quoting Epstein v. Geren, 539 F. Supp. 2d 267,
275 (D.D.C. 2008)).
As Marta correctly notes, however, “there are circumstances when the Court should not
and does not afford a military records correction board decision any deference beyond the
traditional APA standard of review.” Pl.’s Reply at 1. The law in this Circuit differentiates
between review of “military judgment requiring military expertise,” which should be reviewed
under the “unusually deferential” standard, and “review of the Board’s application of a procedural
8 regulation governing its case adjudication process,” which is reviewed under the traditional
arbitrary and capricious APA standard. Kreis v. Sec’y of Air Force, 406 F.3d 684, 686 (D.C. Cir.
2005). The Board action under review here better fits within the latter category. The questions
here “do[] not involve a military judgment requiring military expertise,” id., but rather the
soundness of the Board’s reasoning under D.C. Circuit precedent and familiar principles of
administrative law. Thus, the case concerns “issues of procedural fairness.” Wilhelmus v. Geren,
796 F. Supp. 2d 157, 162 (D.D.C. 2011) (reaffirming the distinction established in Kreis, 406 F.3d
at 686, and finding that the “traditional APA standard should be applied” where plaintiff raised
“issues of procedural fairness”); cf. Hensley, 292 F. Supp. 3d at 408 (“[W]hen deciding legal issues
regarding whether an agency has properly adhered to its procedures, courts [] afford[] no more
deference than they do when reviewing the decisions of civilian agencies.” (citing Remmie v.
Mabus, 898 F. Supp. 2d 108, 118–19 (D.D.C. 2012)). Accordingly, the court applies the traditional
APA standard of review to Marta’s claims.
III.
Marta makes three arguments in support of his claim that the Board’s denial of his
application was arbitrary and capricious: (1) that the Board failed to “acknowledge the Army
committed error or injustice by breaching its legal duty” to counsel him on the Post-9/11 GI Bill
prior to separating from the military, see Pl.’s Mot., Pl.’s Stmt. of P. & A. in Supp. of Mot. for
Summ. J. on the A.R., ECF No. 13-1 [hereinafter Pl.’s Br.], at 12; (2) that the Board “failed to
follow the binding precedent [of Thompson] and failed to provide a legitimate reason for departing
from” it, see id. at 20; and (3) that the Board’s reasoning should be rejected under the D.C. Circuit’s
holding in Haselwander v. McHugh, 774 F.3d 990 (D.C. Cir. 2014),” see Pl.’s Br. at 23. The court
discusses these arguments in reverse order, beginning with a discussion of Haselwander before
9 turning to whether the Board failed to “provide a legitimate reason” not to follow Thompson.
Because the court sides with Marta on both of these grounds, it need not address his first
argument—whether the Board failed to acknowledge that the Army breached its legal duty under
applicable law.
In Haselwander v. McHugh, the D.C. Circuit reviewed an ABCMR decision denying an
applicant’s request to correct his medical records to reflect that he had been wounded in action in
Vietnam, which would qualify him to receive a Purple Heart. 774 F.3d at 992. Given the
battlefield circumstances of Haselwander’s treatment, “those who attended to his wounds never
had a chance to fill out any medical paperwork for Haselwander[,] [and] [a]s a result, [his] Army
records d[id] not show that he was wounded in hostile action.” Id. at 991. Despite “uncontested,
creditable evidence” in the record confirming Haselwander’s wounds, the Board denied his
request, id. at 993, and urged that its decision “should be upheld because [he] ha[d] no medical
records of his injury and treatment,” id. at 992. The D.C. Circuit found “the Board’s decision
defied reason and [was] devoid of any evidentiary support,” characterizing it as “utterly illogical”
and “patently unfair.” Id. at 992–93. The court explained that “[i]t simply ma[de] no sense for
the Board to say, ‘We are denying his application because he has no medical records,’ where the
very error stated in Haselwander’s application to the Board was that his Army record lacks the
medical records.” Id. at 1000. The Board decisions in this case are similarly flawed.
In its 2016 decision, the Board stated in relevant part, “[b]ecause there is no evidence that
shows [Marta] attempted to transfer the benefit while in an active status, as required by law, there
is an insufficient evidentiary basis for granting his requested relief.” A.R. at 389 (emphasis added).
That reasoning is “utterly illogical” and “patently unfair.” Haselwander, 774 F.3d at 992–93.
10 Of course Marta did not present evidence of an attempted transfer of education benefits while on
active duty. His claim was he did not know about the transfer benefit or its restrictions because
the Army had failed to provide him mandatory education benefits counseling upon retirement.
A.R. at 17. The Army supplied no evidence to contradict Marta’s asserted lack of knowledge.
It therefore was unreasonable for the Board to have denied his claim based on the absence of any
attempt to make an active-duty transfer.
The Board exhibited similarly faulty reasoning on reconsideration. It stated in relevant
part: “There is no evidence that shows [Marta] attempted to transfer education benefits and that
the transfer was not processed and approved in a timely manner, which would enable the Board to
possibly correct the record[.]” A.R. at 6. But again, given Marta’s claim, the absence of an
attempted active-duty transfer is hardly surprising. It was illogical for the Board to have demanded
Marta produce such evidence. By denying Marta relief for the very reason he sought records
correction in the first place, the Board “misapprehend[ed] its powers and duties as a record
correction body.” Haselwander, 774 F.3d at 992. 3
In his opposition, Defendant denies “any confusion on the part of the Board with respect
to” its statutory authority. Def.’s Br. at 25. Defendant maintains that the Board’s 2019 decision
shows “that the Board declined to exercise its discretion,” not based on a misunderstanding of its
authority, but rather “based on Plaintiff’s constructive knowledge of the TEB requirement.” Id.
(emphasis added). But that is not what the Board’s decision says. The Board did not impute
constructive knowledge of the active-service requirement to Marta. Rather, the Board expressly
held that the lack of an attempted transfer doomed Marta’s effort at records correction. See A.R.
3 Importantly, Defendant has not taken the position that the Board lacked the statutory authority to provide the relief sought. See Def.’s Br. at 18. Though the Post-9/11 GI Bill is clear that a transfer of education benefits must occur while a solider is on active duty, the Board does not contend that it was powerless to provide relief from that restriction “to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1).
11 at 6 (“There is no evidence . . . which would enable the Board to possibly correct the record to
show the request was accepted and approved timely. Without such evidence, the Board must
adhere to th[e] law.” (emphasis added)). This was not reasoned decisionmaking.
Marta also argues that the Board’s decision was arbitrary and capricious because it failed
to distinguish his case from “binding precedent.” See Pl.’s Br. at 20–23. In his application for
reconsideration, Marta cited to Thompson v. United States, 119 F. Supp. 3d 462 (E.D. Va. 2015)—
a case with facts quite similar to this one. See A.R. at 22–26. Thompson also involved an ABCMR
decision denying a veteran’s application to correct his record to reflect a transfer of Post-9/11 GI
Bill education benefits while on active duty. 119 F. Supp. 3d at 469. The “gravamen” of
Thompson’s application, like Marta’s, was the Army’s failure to provide him with individual pre-
separation counseling on the TEB requirements. Id. at 466. The Board denied Thompson’s request
on the grounds that (1) his ignorance of the law was no excuse and (2) Thompson had constructive
knowledge of the active-duty requirement based on research he had conducted, generalized
counseling he had received, and a public relations campaign concerning the Post-9/11 GI Bill. See
id. at 466–67. Grounding its decision in “the tenets of justice,” the court granted summary
judgment to Thompson, explaining that the Board’s decision “failed to explain how the Army’s
failure to provide LTG Thompson with the required [individualized] counseling became a non-
requirement because there was a public campaign and [because] LTG Thompson had done
research.” Id. at 471. Because the court found “[t]he Army failed to provide LTG Thompson with
the required pre-separation counseling,” it concluded that the “decision to deny his application to
correct his record me[t] the ‘arbitrary, capricious, or contrary to law’ standard.” Id. On remand,
12 the Board approved Thompson’s application and corrected his record to reflect that he had elected
to transfer the education benefits to his dependents while on active duty. A.R. at 119.
Marta asserted before the Board that “because of the strong factual and legal similarity,
Thompson control[s] the outcome of [Marta’s] case, and the ABCMR’s failure to consider and
follow Thompson was legal error.” A.R. at 26. Marta was only partially correct. The Board did
not have an obligation to “follow” Thompson, but it did have an obligation to “consider” it. As a
single district court decision, Thompson was binding upon the Board in Thompson’s case, but it
had no broader precedential effect. Cf. Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011)
(“[A] decision of a federal district court judge is not binding precedent.” (cleaned up)). The
Board therefore was not strictly “bound” by Thompson.
Yet, the requirement of reasoned decisionmaking compelled the Board to consider the case.
“Like a court, ‘[n]ormally, an agency must adhere to its precedents in adjudicating cases before
it.’” Jicarilla Apache Nation v. U.S. Dep’t. of Interior, 613 F.3d 1112, 1120 (D.C. Cir. 2010)
(quoting Consol. Edison Co. of N.Y. v. FERC, 315 F.3d 316, 323 (D.C. Cir. 2003)). This is not to
say that that Board is required to identify and distinguish every similar prior decision. But “the
need to consider relevant precedent becomes especially acute when a plaintiff has pointed to a
specific prior decision as very similar to his own situation.” Wilhelmus, 796 F. Supp. 2d at 162.
“In such cases, the Board may not simply ignore such precedent for the sake of expediency.” Id.
Yet, that is precisely what the Board did here. Although acknowledging that Plaintiff had
“mentioned” “[s]imilar cases,” the Board nowhere referenced Thompson despite its analogous
facts, let alone attempted to distinguish it. A.R. at 64. Instead, the Board obliquely dismissed
Marta’s reference to Thompson with the obvious truism that “[e]ach case is considered on its own
individual merit.” Id. That is not reasoned decisionmaking. See Wilhelmus, 796 F. Supp. 2d at
13 163 (overturning ABCMR decision where it “acknowledg[ed] [a] prior case’s existence, . . . [but]
entirely failed to distinguish it or to justify why the outcome in this case was different”).
Defendant now seeks to distinguish Thompson for the first time. See Def.’s Br. at 22–24;
Def.’s Reply in Supp. of Cross-Mot. for Summ. J., ECF No. 19, at 6. But the court cannot affirm
an agency decision based on the post-hoc rationalizations of counsel. See State Farm, 463 U.S.
at 50. An agency’s action “must be upheld, if at all, on the basis articulated by the agency itself.”
Id. On remand, the Board must meaningfully address Marta’s reliance on Thompson.
IV.
The court agrees with Marta that the Board’s denial of his application for correction was
flawed in two respects: (1) the Board illogically rejected the application because Marta did not
produce evidence of an attempted transfer while on active duty and (2) it failed to adequately
consider Thompson. For these reasons, the Board’s decision was arbitrary and capricious and the
court remands for further consideration.
In light of the remand, the court need not consider Marta’s third ground for reversal—that
the Board failed to recognize the Army’s legal duty to counsel him on the Post-9/11 GI Bill prior
to separation. See Pl.’s Br. at 12. Nevertheless, the court offers the following for the Board’s
consideration. In 2016, the Board dismissed Marta’s assertion about the lack of retirement
counseling, stating that “[t]he applicant’s implication that DOD was required to personally notify
each and every person who was eligible for the TEB program is without merit.” A.R. at 389. In
its 2019 decision, the Board said that “[w]ithout taking into effect the alleged lack of notification
to transfer education benefits prior to his retirement, the applicant is advised the requirement is
embedded in public law.” A.R. at 6. In neither instance did the Board address the plain language
of DTM 09-003 or Army policy. DTM 09-003 requires that the “Secretaries of the Military
14 Departments shall . . . [p]rovide active duty participants and members of the Reserve Components
with qualifying active duty service individual pre-separation or release from active duty counseling
on the benefits under the Post 9/11 GI Bill and document accordingly.” A.R. at 42–43 (emphasis
added). Similarly, the Army-issued Implementation Policy directs educational officers to
“[c]onduct mandatory educational benefits counseling for all Soldiers separating from the Army .
. . no later than 150 days before separation date.” Thus, both DTM 09-003 and Army policy would
appear to require individualized pre-retirement counseling of soldiers like Marta to advise them of
their benefits under the Post-9/11 GI Bill. The Board appears not to have given these directives
sufficient consideration in evaluating Marta’s request. 4 The court urges it to do so on remand.
V.
For the foregoing reasons, the court grants Plaintiff’s motion for summary judgment, ECF
No. 13, denies Defendant’s cross-motion for summary judgment, ECF No. 15, and remands the
case to the Board for further consideration consistent with this Memorandum Opinion. A final
order accompanies this Memorandum Opinion.
Dated: March 31, 2021 Amit P. Mehta United States District Court Judge
4 In his cross-motion for summary judgment, Defendant makes a point to emphasize that “the Army did not have a statutory duty to counsel Plaintiff.” Def.’s Br. at 19 (emphasis added). That is of no consequence, however, because an agency is bound by its own internal policy and regulations. See Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997) (explaining that “military departments and agencies in general, [are] bound to follow [their] own regulations”).