In the United States Court of Federal Claims No. 11-207C Filed: November 13, 2019 IAIN D. PEDDEN, Keywords: Statutory Plaintiff, Interpretation; Legislative Purpose; Arbitrary and v. Capricious; Promotion; Remand; 10 U.S.C. § 12207; UNITED STATES, RCFC 12(b)(6); Reported Opinion Defendant. Eric Sebastian Montalvo, Federal Practice Group, Washington, D.C., for the plaintiff. Michael D. Austin, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C., LT Tyson Peter Marx, USN, Judge Advocate General’s Corps, Department of the Navy, of counsel. MEMORANDUM OPINION HERTLING, Judge Marine Corps Judge Advocate Lieutenant Colonel Iain D. Pedden sues the United States, acting through the Department of the Navy’s Board for Correction of Naval Records (“BCNR”) and the Marine Corps, for the pay and allowances he would have received had the Marine Corps promoted him to the rank of captain earlier than it did. Statute and Department of Defense regulations require the Marine Corps to credit new judge advocates with “constructive service” for part of the time they spent in law school. Lt. Col. Pedden alleges that the Marine Corps misapplied this constructive service credit (“CSC”) in a way that delayed his consideration for promotion to captain by one year, consequently conferring on him a lower lineal placement, delaying his subsequent promotions, and thereby reducing his pay. The defendant has moved to dismiss the case under Rule 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”) for failure to state a claim or, in the alternative, for judgment on the administrative record under RCFC 52.1. (ECF 69.) The plaintiff has cross-moved for judgment on the administrative record and to supplement the administrative record. (ECF 73.) For the following reasons, the defendant’s motion to dismiss under RCFC 12(b)(6) is granted in part: Counts I and II of the Amended Complaint and Count IV of the Supplemental Complaint are dismissed. The defendant’s motion is denied as to Count III of the Amended Complaint. The plaintiff’s motion for judgment on the administrative record under RCFC 52.1 is denied in part and stayed in part. The decision of the BCNR is vacated, and the case is remanded for further proceedings. 1 I. BACKGROUND A Department of the Navy policy applied CSC to Lt. Col. Pedden’s service record after a selection board had already selected candidates for promotion to captain. The plaintiff was promoted to captain more than a year later by a board that could have promoted him without the plaintiff having been awarded CSC. The plaintiff has sought since 2005 to backdate his promotion to captain as part of the lawful award of his CSC, but the BCNR found that his award of CSC complied with the governing statutes and regulations. A. Facts In March 2001, the plaintiff enlisted in the Marine Corps through the Platoon Leader’s Course—Law. On October 13, 2001, after completing Officer Candidate School, he was commissioned as a second lieutenant in the Marine Corps Reserve with Military Occupational Specialty designation 4401, student judge advocate. At the time of his commissioning, the plaintiff ...
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