Robert G. Smith v. FRANCIS J. HARVEY , Secretary of the Army

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1873
R OBERT G. S MITH ,
Plaintiff-Appellant,
v.
F RANCIS J. H ARVEY , Secretary
of the Army, and THE A RMY B OARD FOR
C ORRECTION OF M ILITARY R ECORDS ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-C-200-S—John C. Shabaz, Judge.
____________
A RGUED N OVEMBER 30, 2005—D ECIDED A UGUST 15, 2006
____________
Before R OVNER , W OOD , and E VANS , Circuit Judges.
W OOD , Circuit Judge. Dr. Robert Smith, a retired
ophthalmologist who formerly served in the U.S. Army’s
Medical Service Corps, believes that he is entitled to
constructive service credit for a long-ago completed master’s
degree. The Army Board for Correction of Medical Records
(ABCMR), to which the Secretary of the Army has delegated
the responsibility to decide such claims, disagreed and
denied his request. The district court granted summary
judgment for the Secretary, concluding that the denial of
credit to Smith was neither arbitrary nor capricious. We
affirm.

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2 No. 05-1873
I
Like many others during the period of the Vietnam War,
Smith was commissioned through the Reserve Officer
Training Corps and accepted a U.S. Army Reserve (USAR)
appointment in the Medical Service Corps—in his case, in
1972. That same year he received an educational deferment
and entered graduate school, where he pursued a master’s
degree in anatomy. In 1974, before completing this degree,
Smith entered medical school. In 1976, he earned his
master’s degree, and in 1978, he received his medical
degree.
Smith accepted a USAR active duty appointment to the
Medical Service Corps in 1978. He was awarded four years’
constructive credit for the time spent earning his medical
degree and, as a result, was awarded the rank of captain.
Thereafter, Smith was promoted to major in 1984 and to
lieutenant colonel in 1990. Although he was considered
several times for the rank of colonel, this promotion never
came his way. Smith retired from the military in 1999.
In 1992, Smith petitioned the Department of the Army for
constructive service credit for the time he spent working on
his master’s degree before entering medical school. He was
awarded slightly more than two years’ credit and, as a
result, was considered for retroactive promotion to major by
a special promotion selection board. In the end, however,
the board declined to promote him.
In 1996, Smith appealed the denial of his retroactive
promotion to the ABCMR, contending that the dates of his
promotion to captain, major, and lieutenant colonel all
should have been adjusted and that he should have been
retroactively promoted to colonel as well. The following
year, the ABCMR not only declined to promote Smith
retroactively; it also ruled that the Department of the Army
had erred by granting Smith any additional service credit
for the time spent earning his master’s degree. In 1999,

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No. 05-1873 3
Smith unsuccessfully sought reconsideration of this deci-
sion. He then filed this suit in federal court. The district
court granted summary judgment to the Secretary and the
Board (which are functionally the same party— Smith
neither gains nor loses anything by naming the Board
separately), concluding that Smith had “provided
no evidence of any directive or portion thereof that would
authorize the award of constructive service credit for his
master’s degree.” Smith appeals.
II
The Secretary of a military department, “acting through
boards of civilians of the executive part of that military
department” such as the ABCMR, may adjust military
records “when the Secretary considers it necessary to
correct an error or remove an injustice.” 10 U.S.C.
§ 1552(a)(1). The decisions of such boards “are subject to
judicial review and can be set aside if they are arbitrary,
capricious or not based on substantial evidence.” Chappell
v. Wallace, 462 U.S. 296, 303 (1983); St. Clair v. Secretary
of Navy, 155 F.3d 848, 851 (7th Cir. 1998).
In its original decision denying Smith service credit, the
ABCMR concluded that at the time Smith was appointed to
the Medical Corps “[t]here was no provision under then
existing policy for awarding constructive credit for a mas-
ter’s degree in anatomy.” In reaching this conclusion, the
Board relied on a 1970 version of Department of Defense
Directive (DODD) 1320.7, “Temporary Grades
and Authorized Strengths in Grade of Medical and Dental
Corps Officers.” In his motion for reconsideration, Smith
pointed out that the 1970 version of DODD 1320.7 had been
superceded by a 1976 version, “Temporary Grades, Promo-
tion Policies and Authorized Strengths in Grade for Medical
and Dental Officers,” and that this latter version was in
effect at the time he was appointed to active duty in the

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4 No. 05-1873
Medical Corps. Smith also presented evidence to the
ABCMR that a member of the Medical Service Corps, Dr.
Lee Hunter, was awarded constructive service credit under
the 1976 version of DODD 1320.7 for a master’s degree in
medical engineering that he earned prior to his medical
degree.
In response to Smith’s motion, the ABCMR acknowledged
its erroneous reliance on the 1970 version of DODD 1320.7,
but did not change its bottom line. It explained that both
the 1970 and 1976 directives “require the award of a
doctorate or comparable degree in a health discipline,
beyond a medical degree, for award of additional service
credit.” The Board also stated that “[t]he provision of [the]
1976 directive which granted additional credit for comple-
tion of a graduate level program required that it be an
approved program earned subsequent to [,] not, as in the
applicant’s case, concurrently with the medical degree. . . .”
(Emphasis in original).
Both parties agree that it is the 1976 version of DODD
1320.7 that is relevant to this case. This directive ex-
plains that “[t]he primary purpose of Constructive Ser-
vice Credit is to improve the career progression comparabil-
ity of those individuals who begin active duty service after
obtaining the additional education, training and experience
required for appointments as Medical and Dental Officers
with those individuals who begin active duty commissioned
service immediately after obtaining baccalaureate degrees.”
In order to accomplish this purpose, the directive contains
a table for computing constructive service credit. Two
provisions of this table are of particular relevance to
Smith’s claim. The first allows for one year of service credit
for each school year for:
Successful completion of approved graduate or post-
graduate education, subsequent to graduation from
dental school, in the field of dentistry or the specialty to
which appointed. . . .

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No. 05-1873 5
DODD 1320.7 (1976), Pt. IV(A), ¶ 4(d)(3). The other rele-
vant provision states that one to three years service credit
may be granted for:
Unusual qualifications not otherwise credited, as
determined by the Military Department Secretary
including, but not limited to, possession of a doctorate
or comparable degree in a second health discipline.
DODD 1320.7 (1976), Pt. IV(A), ¶ 4(d)(5).
Smith first argues that the ABCMR applied a mistaken
standard in evaluating whether his master’s degree in
anatomy qualified as an “unusual qualification” under
¶ 4(d)(5), treating the phrase “a doctorate or comparable
degree” as an exclusive list of unusual qualifications
rather than as illustrative examples. Next, Smith con-
tends that the ABCMR erroneously interpreted ¶ 4(d)(3)
as limiting the award of constructive service credit to
education completed subsequent to a medical degree.
Although Smith agrees with the ABCMR that ¶ 4(d)(3)
applies generally to both dentists and medical doctors, in
his view that provision’s limit on the award of construc-
tive service credit applies literally only to “education [ ]
subsequent to graduation from dental school.” In other
words, Smith contends that since he did not attend dental
school, ¶ 4(d)(3)’s limitation should not apply to him and
that the sequence of degrees is actually an impermissible
consideration for the Board in his case. The Board, in
contrast, cited the fact that Smith’s master’s degree was
awarded during the course of his medical education as a
reason for denying his petition.
The Secretary responds that Smith waived the argu-
ment based on ¶ 4(d)(5) because he did not raise it below
and that he previously conceded that ¶ 4(d)(3) did not apply
to medical school graduates. Upon careful review of the
record, we find neither argument persuasive. Although
“[w]e have long refused to consider arguments that were not

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6 No. 05-1873
presented to the district court in response to sum-
mary judgment motions,” Republic Tobacco Co. v. North
Atlantic Trading Co., Inc., 381 F.3d 717, 728 (7th Cir. 2004)
(quotation marks omitted), it is simply not the case that
Smith failed to present his ¶ 4(d)(5) argument to the district
court. In his response to the Secretary’s motion for sum-
mary judgment, Smith argued that the ABCMR “failed to
give effect to the plain and unambiguous provisions of the
applicable Department of Defense Directive governing the
award of entry grade credit for education or experience.”
Considering that the only provisions of DODD 1320.7
addressed by the ABCMR in its decision were ¶¶ 4(d)(3) and
(5), that was enough. Nor did Smith concede that ¶ 4(d)(3)
was irrelevant to his petition. Instead, the record reveals
that Smith properly made the same argument below as he
does here: that ¶ 4(d)(3) “limits Constructive Service Credit
subsequent to graduation from dental school, not to other
graduate-level professional studies.” (Emphasis added).
Waivers and concessions aside, the ABCMR neverthe-
less did not act arbitrarily and capriciously in concluding
that Smith did not qualify for constructive service credit.
Although the ABCMR’s decision may not be a model of
clarity, we do not agree with Smith that the Board meant
to say that only doctorates and comparable degrees count as
“unusual qualifications” under ¶ 4(d)(5). Rather, the
ABCMR emphasized that Smith’s master’s degree in
anatomy did not amount to an unusual qualification
because it was not a qualification “beyond a medical de-
gree.” That is, the Board interpreted the phrase “unusual
qualification” to refer only to degrees in disciplines other
than the primary discipline in which the officer is already
qualified. Since training in anatomy is a universal prerequi-
site for a medical degree, the ABCMR quite reasonably
concluded that such a degree does not qualify as a degree in
a second health discipline. Through ¶ 4(d)(5), the Secretary
(and his designates in the ABCMR) is vested with discretion

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No. 05-1873 7
to determine what constitutes an unusual qualification
deserving of constructive service credit. We see nothing
here to indicate that he abused that discretion in Smith’s
case.
It is difficult to evaluate Smith’s further claim that the
ABCMR acted arbitrarily and capriciously by denying his
claim for constructive service credit, in light of the fact that
it had extended such credit to another Medical Ser-
vice Corps member, Dr. Hunter, because the evidence Smith
presented to the Board regarding Hunter’s qualifications is
not in the record. We are satisfied, however, taking Smith’s
factual representations at face value, that the ABCMR’s
action with respect to Hunter does not undermine its
decision in Smith’s case. Unlike Smith, whose master’s
degree was in anatomy, Hunter allegedly completed a
degree in medical engineering. It would have been well
within the ABCMR’s discretion to conclude that a degree in
medical engineering qualified as an “unusual qualification,”
while a degree in anatomy did not.
Nor does the ABCMR’s treatment of ¶ 4(d)(3) support
reversal. The relevant language—which limits constructive
credit to “education [ ] subsequent to graduation from
dental school, in the field of dentistry or the specialty to
which appointed”—is ambiguous. The parties suggest at
least three possible interpretations: (1) the “subsequent to
graduation” limitation applied only to dental school gradu-
ates, such that medical graduates could receive credit for
education undertaken prior to finishing medical school
(Smith’s position); (2) the limitation applied to dental and
medical school graduates alike, such that graduates of any
stripe could only receive credit for education undertaken
after graduation (the ABCMR’s interpretation); or (3)
neither the substance of ¶ 4(d)(3) nor its “subsequent to
graduation” limitation applied to medical school graduates
at all, but only to dental school graduates (thus leaving only
silence here, not a negative command, which is the Secre-

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8 No. 05-1873
tary’s litigation position). Where a regulatory provision is
ambiguous, “an agency’s considered interpretation . . . is
entitled to deference.” Old Ben Coal Co. v. Director, Office
of Workers’ Compensation Programs, 292 F.3d 533, 542 n.8
(7th Cir. 2002). That said, it is also true that we will not
substitute “appellate counsel’s post hoc rationalizations for
agency action” for the rationale of the agency. Slusher v.
NLRB, 432 F.3d 715, 729 (7th Cir. 2005) (quoting
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168-69 (1962)).
Whatever the degree of deference the Board’s interpreta-
tion deserves, we find its reading of ¶ 4(d)(3) reasonable. If,
as the first part of the second clause suggests, it addresses
only dental school graduates, this means that the Board
must look to the rest of the regulation (including ¶ 4(d)(5))
for graduates of other kinds of programs, such as medical
school. Moreover, the inclusion of the phrase “or the
specialty to which appointed” later in the same clause of
¶ 4(d)(3) indicates at a minimum that it was not intended
to preclude a rule limiting credit to programs “subsequent
to graduation” for medical doctors as well as dentists.
Although the ABCMR’s interpretation is certainly not the
only reasonable reading of ¶ 4(d)(3), it is one such reason-
able interpretation. The Board’s decision is therefore not
arbitrary or capricious.
We A FFIRM the judgment of the district court.

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No. 05-1873 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-15-06

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