Case: 18-2038   Document: 39     Page: 1   Filed: 04/09/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

      BRIAN R. BAUDE, JOANNA L. MITCHELL,
   RANDALL E. FELTNER, JASON K. HUMPHREY,
  JEFFREY W. KERNEKLIAN, DAVID C. KIRKMAN,
     KENJI LIGON, KALE M. MOSLEY, RICHARD
  PERRON, CHRISTOPHER T. PROTT, ROBERT B.
 RUSSELL, STEVEN P. SCHREFFLER, ERIC SUCIU,
    JAMES A. TREVINO, JOSEPH WILLIAMS, JR.,
                KIRK M. SHAFFER,
                    Plaintiffs

                   JASON D. ENGLE,
                    Plaintiff-Appellant

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2018-2038
                 ______________________

     Appeal from the United States Court of Federal Claims
 in Nos. 1:16-cv-00049-EJD, 1:16-cv-00051-EJD, 1:16-cv-
 00053-EJD, 1:16-cv-00054-EJD, 1:16-cv-00055-EJD, 1:16-
 cv-00056-EJD, 1:16-cv-00057-EJD, 1:16-cv-00058-EJD,
 1:16-cv-00059-EJD, 1:16-cv-00060-EJD, 1:16-cv-00061-
 EJD, 1:16-cv-00062-EJD, 1:16-cv-00063-EJD, 1:16-cv-
 00064-EJD, 1:16-cv-00065-EJD, 1:16-cv-00066-EJD, 1:16-
 cv-00392-EJD, Senior Judge Edward J. Damich.
Case: 18-2038     Document: 39     Page: 2    Filed: 04/09/2020




 2                                     BAUDE v. UNITED STATES




                   ______________________

                    Decided: April 9, 2020
                   ______________________

     ELANA NIGHTINGALE DAWSON, Latham & Watkins LLP,
 Washington, DC, argued for plaintiff-appellant. Also rep-
 resented by ROBERT J. GAJARSA, GABRIEL BELL; IAN BEECH
 PETERSEN, Los Angeles, CA.

       WILLIAM JAMES GRIMALDI, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, argued for defendant-appellee. Also
 represented by ROBERT EDWARD KIRSCHMAN, JR., DOUGLAS
 K. MICKLE, JOSEPH H. HUNT; ANNIE W. MORGAN, ERIC W.
 WELCH, United States Air Force, Joint Base Andrews, MD.
                  ______________________

     Before NEWMAN, O’MALLEY, and WALLACH, Circuit
                       Judges.
     Opinion for court filed by Circuit Judge O’MALLEY.
     Dissenting opinion filed by Circuit Judge WALLACH.
 O’MALLEY, Circuit Judge.
      In 2011, an Air Force Selective Continuation Board
 met to determine whether Lieutenant Colonel Jason D.
 Engle—then a major in the United States Air Force—
 should be continued or involuntarily discharged. Under
 the appropriate regulation, DoDI 1320.08, Engle would
 have been within the six-year protective window of the reg-
 ulation and—as the government concedes—he had no dis-
 qualifying information in his record. But, just prior to the
 continuation board’s meeting, the Secretary of the Air
 Force issued instructions to decrease the protective thresh-
 old for officers like Engle and to reverse the regulatory pre-
 sumption in favor of continuation. The continuation board
 determined that, under these new instructions, Engle
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 BAUDE v. UNITED STATES                                      3



 should not be continued. On November 30, 2011, Engle
 was formally discharged after serving fifteen years, six
 months, and two days of active duty. SAppx104. 1 Less
 than six months later, Engle was involuntarily called back
 up from the reserves, deployed to Kyrgyzstan, and pro-
 moted to Lieutenant Colonel. Now, Engle continues to
 serve his country, but without the retirement benefits and
 additional active duty pay for which he would have quali-
 fied if he had been presumptively continued under the orig-
 inal regulation.
      While the military is given a wide berth with respect to
 its decision making, its discretion is not wide enough to jus-
 tify the process it employed in this matter. The Adminis-
 trative Procedures Act demands more, and officers like
 Lieutenant Colonel Engle deserve more.
     Engle, on behalf of himself and sixteen others, appeals
 from a decision of the United States Court of Federal
 Claims (“Claims Court”) upholding denials of petitions for
 special boards under 10 U.S.C. § 1558 by the Air Force
 Board for Correction of Military Records (“AFBCMR”).
 Baude v. United States, 137 Fed. Cl. 441 (2018); see Appx1
 (Judgment). With respect to Engle’s claim, because the
 Secretary of the Air Force does not have the discretion to
 rewrite DoDI 1320.08, we reverse the judgment of the
 Court of Federal Claims and remand for further proceed-
 ings. We dismiss with respect to the remaining claims be-
 cause Engle, a non-attorney and the sole appellant in this
 case, cannot represent or assert rights on behalf of other
 parties.




     1   Appx refers to the appendices attached to Engle’s
 informal brief and supplemental brief. SAppx refers to the
 supplemental appendices attached to the government’s in-
 formal brief and supplemental brief.
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 4                                      BAUDE v. UNITED STATES




                        I. BACKGROUND
             A. Relevant Statutory Framework
     An officer in the United States Air Force who holds the
 grade of major must appear before a promotion board to
 receive further promotions. 10 U.S.C. §§ 611(a), 628(k). If
 that officer is twice passed over for promotion, he is typi-
 cally discharged. Id. § 632(a). This system is sometimes
 referred to as an “up-or-out” system. Baude, 137 Fed. Cl.
 at 447. An officer who would otherwise be discharged un-
 der this “up-or-out” framework may nevertheless remain in
 active service if a continuation board selects him for con-
 tinuation. 10 U.S.C. §§ 611, 637.
     Congress delegated the authority to promulgate regu-
 lations for the selection of active duty majors for continua-
 tion to the Secretary of Defense. Id. § 637(e). Pursuant to
 this authority, the Secretary of Defense issued Department
 of Defense Instruction (“DoDI”) 1320.08, which governs the
 operations of selective continuation boards. In relevant
 part, the regulation reads as follows:
     A commissioned officer on the Active Duty List in
     the grade of O-4 who is subject to discharge accord-
     ing to [10 U.S.C. § 632] shall normally be selected
     for continuation if the officer will qualify for retire-
     ment . . . within 6 years of the date of continuation.
     The Secretary of the Military Department con-
     cerned may, in unusual circumstances such as
     when an officer’s official personnel record contains
     derogatory information, discharge an officer invol-
     untarily in accordance with [10 U.S.C. § 632].
     When the Secretary of the Military Department
     concerned intends not to continue larger pools of of-
     ficers in the grade of O-4 who would qualify for re-
     tirement within 6 years of the date of a
     continuation, the Secretary shall notify the [Under
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 BAUDE v. UNITED STATES                                       5



     Secretary of Defense for Personnel and Readiness]
     of the proposed course of action.
 DoDI 1320.08, ¶ 6.3 (emphases added). 2
      These instructions are straightforward. An officer in a
 certain protective window—six years from retirement—
 “shall normally be selected for continuation” absent some
 “unusual circumstance.” Id. In other words, a department
 secretary must continue the officer unless there is a reason
 not to, e.g., derogatory information in their personnel file.
 The instruction also requires a department secretary to no-
 tify the Undersecretary of Defense for Personnel and Read-
 iness before “larger pools” of officers within this six-year
 protective window are not continued. Id.
                B. The Secretary’s Instructions
     On December 6, 2010, the Secretary of the Air Force
 (“SecAF”) notified the Under Secretary of Defense for Per-
 sonnel and Readiness (“USD(P&R)”) that, in order to “man-
 age our officer corps and bring us within Congressionally
 mandated end-strength,” he intended to “temporarily sus-
 pend” selective continuation for O-3 and O-4 officers within
 six years from retirement. Appx1005 (capitalization nor-
 malized). The notification was one paragraph:
     In our continuing efforts to manage our officer
     corps and bring us within Congressionally man-
     dated end-strength, I intend to exercise my author-
     ity contained in DoDI 1320.08, para 6.3, to not
     selectively continue large pools of twice-deferred of-
     ficers in the grades of O-3 and O-4 who would oth-
     erwise qualify for retirement within 6 years of the
     date of a continuation. Exceptions to this decision
     will be some Chaplains (i.e., Catholic Priests), some



     2  These instructions became effective on March 14,
 2007. See SAppx118.
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 6                                    BAUDE v. UNITED STATES




     rated (i.e., Remotely Piloted Aircraft Operators),
     and some Nurse Corps (i.e., Flight and Operating
     Room Nurses).
 Appx1005. The SecAF did not articulate any “unusual cir-
 cumstances” that might warrant non-continuation of these
 officers. Id.
         C. Lt. Col. Engle’s Involuntary Discharge
     On March 7, 2011, Engle, who had served in active duty
 for over 14 years, was passed over for promotion from ma-
 jor to lieutenant colonel for the second time. Baude, 137
 Fed. Cl. at 444. As a result, on March 21, 2011, a Selective
 Continuation Board met to evaluate Engle. Id. Unbe-
 knownst to Engle, however, the SecAF had issued a mem-
 orandum of instructions to the Selective Continuation
 Boards that dramatically changed the policy set forth in
 the regulation. The SecAF’s new instructions stated:
     Majors who will qualify for retirement within five
     years of the convening date of the board shall nor-
     mally be continued. Officers not within five years
     of retirement may be recommended for continua-
     tion, but only if you determine that continuation is
     clearly in the best interest of the Air Force . . .
 Appx33 (emphases added). This meant Officers now
 needed at least an additional year of service to be continued
 as a matter of course. Id. The memorandum also in-
 structed the Board to calculate the five-year period, i.e.,
 how far an officer was from retiring, based on when the
 Board convened, as opposed to the “date of continuation,”
 as required by the regulation, extending the additional
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 BAUDE v. UNITED STATES                                     7



 service needed by even more. 3     Compare Appx33, with
 DoDI 1320.08, ¶ 6.3.
     In addition, the SecAF’s instructions introduced a pre-
 sumption of non-continuation into the regulation. The
 Board could only recommend an officer for continuation
 who was not within five years of retirement as of the con-
 vening date if it determined that “it is clearly in the best
 interests of the Air Force to do so.” Appx33. As explained
 below, for officers like Engle—who were less than six years
 from retirement but not less than five, and who had noth-
 ing disqualifying in their record—the Secretary’s instruc-
 tions (1) redefined the time window for presumptive
 continuation, (2) turned the regulatory presumption on its
 head, and (3) provided no guidance regarding what should
 be deemed clearly in the best interests of the Air Force. Ra-
 ther than presume that these officers should be continued,
 the instructions told the continuation board to presume
 they should not be. 4 And, they told the Board that the



     3   Air Force Instruction 36-2501 7.11.3 explains that
 the “date of continuation” is “normally” measured from
 seven months after approval of the board results. Appx23.
     4   The Secretary’s decision to shift the protective win-
 dow from six years to five, reflected in his instructions to
 the board, was an uncontested break from the military’s
 normal policy, which, to date, had adhered to the terms of
 the governing regulation. The Air Force acknowledged as
 much when members of Congress asked why the same
 board that rejected Engle suddenly did not continue 157
 majors. See Appx1003 (“In practice, the Air Force (AF) has
 generally continued to retirement all Majors twice passed
 over for promotion . . . .”); see also Appx1009 (“In accord-
 ance with the ‘normal’ policy contained in the DoDI, the Air
 Force has traditionally continued officers who are within 6
 years of retirement eligibility until 20 years of service,
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 8                                   BAUDE v. UNITED STATES




 burden for overcoming that presumption was a high one,
 which the officers were to bear.
     Based on the Secretary’s instructions, the continuation
 board rejected Engle along with 156 other officers. If—as
 the original regulation required and had always been in-
 terpreted by the Air Force—the Board had been told it
 should normally continue Engle, he almost certainly would
 have been continued. It is undisputed that Engle had no
 derogatory information in his record that would have dis-
 qualified him from continuation. Indeed, the government
 concedes as much. See Oral Arg. at 20:42–51, available at
 http://oralarguments.cafc.uscourts.gov/default.aspx?fl=
 2018-2038.mp3 (“We are unaware of any derogatory infor-
 mation or any decision regarding Engle that was personal
 in nature, that is not what the record here shows.”). Nev-
 ertheless, the SecAF approved the continuation board’s
 recommendations on November 30, 2011, and Engle was
 terminated from the Air Force. Baude, 137 Fed. Cl. at 445.
     Less than six months after he was formally discharged,
 Engle was involuntarily called back up from the reserves
 and deployed to Kyrgyzstan. Despite having been passed
 over for the position while in active service, moreover,
 Engle was promoted to Lieutenant Colonel while serving in
 active duty in the reserves. See Oral Arg. at 10:05–10:31
 (“[Counsel]: He was actually called back up [from the re-
 serves] involuntarily and deployed to Kyrgyzstan and less
 than six months after his involuntary discharge in this
 case, and while serving in active duty in the reserves, was
 promoted to Lieutenant Colonel.”).
                   D. Procedural History
    In 2013, Engle and fifteen other majors petitioned the
 AFBCMR to convene a special board that would: (1)


 absent some other reason not to do so, such as where the
 officer’s record contains derogatory information.”).
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 BAUDE v. UNITED STATES                                    9



 reconsider its non-continuation decisions, and (2) reinstate
 them into active duty, or (3) grant them retirement benefits
 under the Temporary Early Retirement Authority pro-
 gram. Baude, 137 Fed. Cl. at 446; Appx102. The AFBCMR
 denied the petition on January 28, 2015. Appx116.
      On January 12, 2016, Engle filed a complaint in the
 Claims Court seeking injunctive relief, back pay, attorney’s
 fees, and restoration to active duty. His case was consoli-
 dated with several other cases involving plaintiffs who had
 also been discharged pursuant to recommendations of the
 Selective Continuation Board and sought AFBCMR review
 of those recommendations. As the Claims Court explained,
 “the substantive crux of Plaintiffs’ complaint is a military
 pay claim resulting from their allegedly wrongful non-re-
 tention because of the AFBCMR’s denial of their requests
 for special boards.” Baude, 137 Fed. Cl. at 449.
     At this point, the United States moved to remand the
 consolidated cases to the AFBCMR. According to the
 United States, the AFBCMR had not explicitly denied
 plaintiffs’ requests to convene special boards. Thus, re-
 mand was appropriate before considering whether the de-
 nial was lawful. Id. at 446. The Claims Court agreed and
 remanded the case to the AFBCMR on August 29, 2016.
     On March 31, 2017, the AFBCMR concluded on re-
 mand that there was no need to convene a special board to
 correct actions taken by the Selective Continuation Board
 because the plaintiffs failed to show they were victims of
 an “error or injustice.” Id.
      In the Claims Court, both sides filed cross-motions for
 judgment on the administrative record. As relevant to this
 appeal, the plaintiffs argued that the SecAF: (1) violated
 DoDI 1320.08 by changing the criteria for determining how
 officers six years from retirement (but not five) were eval-
 uated for continuation; (2) failed to properly instruct the
 Selective Continuation Board on using the best-qualified
 method to make continuation decisions; (3) violated
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 10                                   BAUDE v. UNITED STATES




 regulations prohibiting the SecAF from convening a contin-
 uation board under certain conditions; and (4) erroneously
 calculated the time at which officers needed to be five years
 from retirement to be continued based on when the Board
 convened, instead of when the Board’s results were ap-
 proved. 5 Id. at 453.
      With respect to the plaintiffs’ DoDI 1320.08 challenge,
 the Claims Court agreed with the AFBCMR, and concluded
 that the SecAF did not violate the regulation because
 (1) the SecAF had the authority to modify the regulation in
 “unusual circumstances”; and (2) there was an “unusual
 circumstance” to warrant the SecAF’s new instructions.
     The Claims Court first reasoned that the use of the
 phrase “shall normally” in the regulation indicates that the
 SecAF has discretion to modify the regulation in “unusual
 circumstances.” Id. at 455. The Claims Court rejected the
 plaintiffs’ argument that the regulation restricts the find-
 ing of “unusual circumstances” to those personal in nature.
 Id. In doing so, the Claims Court adopted the AFBCMR’s
 reasoning, agreeing that the language requiring the SecAF
 to notify USD(P&R) of his intent not to continue “larger
 pools” of officers implies that “there could be some other
 categorical basis for denying the continuation.” Id.
     Having determined that the SecAF has the discretion
 to unilaterally change the regulation, the Claims Court
 concluded that “there was an unusual circumstance that
 triggered [the SecAF’s] authority” under DoDI 1320.08.
 The Claims Court determined that the “unusual



      5  The plaintiff also argued that the Secretary vio-
 lated 10 U.S.C. § 691 by reducing manpower below certain
 minimum end strength requirements. Baude at 137 Fed.
 Cl. at 453. The Claims Court rejected this argument and
 Engle is “not pursuing the § 691 argument” here. Appel-
 lant Br. 23.
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 BAUDE v. UNITED STATES                                    11



 circumstance” was the need to “reduc[e] manpower while
 also maintaining an appropriate mix of airmen.” Id. at
 455–56. This justification was new. Indeed, the SecAF did
 not say in his memorandum of instructions that “unusual
 circumstances” justified the reduced protective threshold.
 Appx33. Nor did his notification to the USD(P&R) identify
 any such “unusual circumstances.” Appx1005. In fact, the
 only explanation for the SecAF’s actions was the first sen-
 tence of his notice, when he stated that he intended to “ex-
 ercise [his] authority contained in DoDI 1320.08, para 6.3”
 in response to “continuing efforts to manage our officer
 corps and bring us within Congressionally mandated end-
 strength.” These efforts were not characterized as abnor-
 mal. Appx1005.
     This description of an “unusual circumstance” also had
 not appeared before the AFBCMR. When considering
 whether there was an “unusual circumstance,” the
 AFBCMR relied on a memorandum submitted by the Air
 Force Personnel Center Judge Advocate, which stated:
     [T]he requirement to add to the normal force man-
     agement mix a change in the retirement window
     for twice nonselected majors to be selectively con-
     tinued does represent an unusual circumstance in-
     dicative of the more drastic measures required at
     that time.
 Appx1011 (emphasis in original). The Air Force argued
 that narrowing the retirement window was a “drastic meas-
 ure[] required at that time,” but did not explain why. Nor
 did it explain what about the normal force management
 mix drastically needed fixing. Nevertheless, on appeal, the
 government proposed that the unusual circumstance that
 permitted revision of the regulatory scheme that had long
 been in place was “the need to reduce the manpower while
 maintaining an appropriate mix of airmen.” Baude, 137
 Fed. Cl. at 455. The Claims Court agreed with the govern-
 ment, granted the government’s motion for judgment on
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 12                                   BAUDE v. UNITED STATES




 the administrative record, and denied the plaintiffs’ cross-
 motion for judgment on the administrative record.
       Importantly, to the extent the Secretary wanted or felt
 compelled to reduce force numbers, there were alternative
 mechanisms to achieve those ends, all of which provided
 certain procedural safeguards to officers. For example, the
 SecAF may use force shaping boards, as authorized under
 10 U.S.C. § 638a, to consider for early retirement or dis-
 charge regular officers on the active-duty list. 10 U.S.C.
 § 638a(b) (“Actions which the Secretary of a military de-
 partment may take with respect to officers of an armed
 force when authorized to do so under subsection (a) are the
 following . . . .”). But these types of boards may not recom-
 mend “more than 30 percent of the number of officers con-
 sidered.” See 10 U.S.C. § 638a(c)(1), (d)(2), (e)(3). The Air
 Force may also encourage voluntary separations and accel-
 erate retirements before resorting to involuntary separa-
 tion of qualified members who are not eligible for
 retirement. See Appx1006–1008 (“Incentive programs en-
 courage members to voluntarily separate from active duty
 . . . Inventive programs include the Voluntary Separation
 Benefit, Special Separation Benefit, and the 15-Year Re-
 tirement Program . . . [I]nvoluntary retirements and sepa-
 rations are reduction-in-force (RIF) and selective early
 retirement boards (SERB).”).
    Engle timely appealed. We have jurisdiction under 28
 U.S.C. § 1295(a)(3).
                       II. DISCUSSION
     We review a decision of the Claims Court granting
 judgment on the administrative record without deference,
 applying the same standard of review as the trial court.
 Barnick v. United States, 591 F.3d 1372, 1377 (Fed. Cir.
 2010). We therefore will not disturb the decision of the
 AFBCMR denying a special board to correct the decision of
 the Selective Continuation Board “unless it is arbitrary,
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 BAUDE v. UNITED STATES                                    13



 capricious, contrary to law, or unsupported by substantial
 evidence.” Id.; 10 U.S.C. § 1558(f)(2)(A)(i)–(iv).
     Engle argues that the SecAF violated DoDI 1320.08
 when he instructed the Board to narrow the continuation-
 eligibility window from six to five years and changed the
 calculation date of the protective threshold from the “date
 of continuation” to the “convening date of the [continua-
 tion] board.” Baude, 137 Fed. Cl. at 457. In particular,
 Engle argues that (1) the SecAF lacked the authority to
 modify DoDI 1320.08; (2) the SecAF’s instructions were not
 responsive to the type of “unusual circumstances” contem-
 plated by DoDI 1320.08; and (3) the SecAF’s notice to the
 USD(P&R) does not provide the department secretary with
 the authority to non-continue officers without reason. Ap-
 pellant Supp. Br. 7–8. We agree with Engle on each point. 6



     6    Before the Claims Court, the government argued
 that the plaintiffs’ challenge with respect to how the Secre-
 tary reduced manpower by modifying DoDI 1320.08 is not
 justiciable. Baude, 137 Fed. Cl. at 450. The government
 also asserted that Engle’s “‘unusual circumstances’ chal-
 lenges” should be dismissed as “nonjusticiable” because
 Engle’s arguments challenge the SecAF’s “wide discretion
 to manage [the Air Force’s] workforce.” Appellee Suppl. Br.
 13. As did the Claims Court, we disagree. Although claims
 that military decisions are substantively wrong are nonjus-
 ticiable, procedural violations underlying military deci-
 sions are generally justiciable. Godwin v. United States,
 338 F.3d 1374, 1376–79 (Fed. Cir. 2003). Engle’s case is
 justiciable because he is challenging whether the SecAF
 had authority to modify DoDI 1320.08 and whether, under
 the language of the regulation, the SecAF’s instructions
 complied with DoDI 1320.08. Engle does not challenge the
 SecAF’s general authority to reduce the Air Force’s man-
 power and does not challenge any factual assessment of his
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 14                                    BAUDE v. UNITED STATES




                A. The Secretary of the Air Force
                 Cannot Rewrite DoDI 1320.08
     DoDI 1320.08 states that military secretaries “shall”
 administer continuation boards based on “the policies and
 procedures prescribed herein.” SAppx118–19. Under this
 regulation, an officer within six years from retirement
 “shall normally be selected for continuation.” SAppx119.
 The regulation then states that, in spite of that rule, an
 individual officer might still be non-continued if there is
 some “unusual circumstance[]” in his or her case, e.g., de-
 rogatory information in his file. Id. Otherwise, the officer
 should be continued. Id. Finally, if the military secretary
 intends to non-continue several O-4 grade officers, the Sec-
 retary should notify USD(P&R), which oversees this pro-
 cess on behalf of the Secretary of Defense. Id.
     The SecAF’s instructions to the Selective Continuation
 Board directly violated DoDI 1320.08. These instructions
 decreased the protective threshold for O-4 officers both by
 increasing the required number of years of active service,
 and by modifying how that number was to be calculated.
 The threshold date was now calculated from the earlier
 “convening date of the board,” as opposed to the later “date
 of continuation” stated in the regulation.         Compare
 Appx33, with DODI 1320.08, ¶ 6.3. See also Appx23.
     In addition, although the regulation expressly states
 that an officer within six years from retirement “shall nor-
 mally be selected for continuation,” the SecAF’s instruc-
 tions did not require the Board to justify discharging Engle.
 Appx33. In fact, they said the opposite. The Secretary told



 suitability for service. See, e.g., Roth v. United States, 378
 F.3d 1371, 1385 (Fed. Cir. 2004). Accordingly, we may “de-
 cide whether the military has complied with procedures set
 forth in its own regulations.” Fisher v. United States, 402
 F.3d 1167, 1177 (Fed. Cir. 2005).
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 BAUDE v. UNITED STATES                                        15



 the Board that majors like Engle should not be continued
 unless the Board “determine[d] that continuation [was]
 clearly in the best interests of the Air Force.” Id. This is
 plainly inconsistent with the text of DoDI 1320.08, which
 provides: “[a] commissioned officer . . . shall normally be
 selected for continuation if the officer will qualify for retire-
 ment . . . within six years . . . .” DoDI 1320.08 ¶ 6.3.
     The AFBCMR and the Claims Court justified the Se-
 cAF’s disregard for the regulation, contending that the use
 of the phrase “shall normally” does not mandate an action
 but “merely establishes the norm.” Baude, 137 Fed. Cl. at
 455. But the text of the regulation does not support such a
 sweeping reading of that language. The regulation’s use of
 “shall normally” is not an invitation for department secre-
 taries to decide who deserves to be presumptively contin-
 ued. It is an instruction that an officer shall normally be
 continued absent unusual circumstances. See SAS Inst.,
 Inc. v. Iancu, 138 S. Ct. 1348, 1354 (2018) (“The word ‘shall’
 generally imposes a nondiscretionary duty.”). Applying
 this presumption is mandatory, even if continuation is not.
     Indeed, the SecAF’s instructions themselves reflect
 this same understanding. As in DoDI 1320.08, the SecAF
 used “shall normally” to tell the continuation board that it
 must presumptively continue officers within their newly-
 minted five-year window. See Appx33 (“Majors who will
 qualify for retirement within five years . . . shall normally
 be continued.”). Just as the continuation board did not
 have discretion to ignore the Secretary’s instruction to pre-
 sumptively continue officers within five years of retire-
 ment, the SecAF did not have discretion to change the DoD-
 imposed regulatory requirement that officers within six
 years of retirement should be presumptively continued.
     Kingdomware Techs., Inc. v. United States, 136 S. Ct.
 1969 (2016), on which the dissent relies, does not suggest
 that “shall normally” is permissive. In fact, the Court
 acknowledged in Kingdomware that the word “shall”
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 16                                    BAUDE v. UNITED STATES




 “normally creates an obligation impervious to judicial dis-
 cretion.” 136 S. Ct. at 1977. It has the same effect here.
 The Secretary must continue officers within six years of re-
 tirement unless there is a reason that overcomes the pre-
 sumption that he must do so. The dissent’s reading of
 “shall normally,” by contrast, does not require anyone to do
 anything. See Dissent Op. 8–9. It therefore reads “shall”
 out of the rule. Indeed, the dissent assumes that the word
 normally removes any presumption in favor of continua-
 tion and effectively turns the word “shall” into no more
 than a nonce word. Dissent Op. 9.
     In further efforts to justify its reading of the rule, the
 dissent asserts that the SecAF’s discretion to “set the crite-
 ria for continuation is confirmed in other parts of DoDI
 1320.08.” Dissent Op. 9 n.4. Here, the dissent points to
 paragraphs 6.3.1 and 6.3.2. Id. But these paragraphs—
 cited by the dissent as demonstrating the limits of the Se-
 cAF’s discretion—cap the “Continuation Period” for an of-
 ficer, i.e., how long the officer can remain in the service
 after being continued. 7 This case, however, is about
 whether the Secretary can change who should be continued
 in the first place. Limits on whether the Secretary can
 keep officers in the service beyond their continuation
 date—after they have already been continued—are there-
 fore irrelevant.



      7   See, e.g., Air Force Instruction 36-2501, Officer Pro-
 motions and Selective Continuation (Jul. 16, 2004), ¶ 7.11
 (explaining, under the heading “Determining Continuation
 Period,” that the Air Force should “[c]ontinue majors until
 the last day of the month in which he or she is eligible to
 retire as an officer (normally upon competition of 20 years
 of total active military service)” unless they “possess criti-
 cal skills,” in which case they still “may not be continued
 any longer than the last day of the month in which they
 complete 24 years of active commissioned service”).
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 BAUDE v. UNITED STATES                                      17



     Because the SecAF was obligated to follow DoDI
 1320.08 in overseeing the continuation process here, see
 DoDI 1320.08, ¶ 5.2, corrective action by the AFBCMR is
 warranted. See, e.g., Roth v. United States, 378 F.3d 1371,
 1381 (Fed. Cir. 2004) (explaining that correction boards are
 “obligated not only to properly determine the nature of any
 error or injustice, but also to take ‘such corrective action as
 will appropriately and fully erase such error or compensate
 such injustice.’”).
       B. “Unusual Circumstances” Do Not Authorize
      a Department Secretary to Modify DoDI 1320.08
     The government argues that, despite the plain lan-
 guage of the regulation, the Secretary can change the pro-
 tective window when presented with “unusual
 circumstances” and that the Secretary has complete discre-
 tion to decide what qualifies as an unusual circumstance.
 The government’s argument is unavailing.
     DoDI 1320.08 says that a department secretary
 “may . . . discharge an officer” in unusual circumstances.
 The text of the regulation is clear: unusual circumstances
 may overcome the presumption that an O-4 officer within
 the protective window shall be continued. Not only do “un-
 usual circumstances” not justify doing away with the pre-
 sumption of continuation, but when “unusual
 circumstances do come into play, they are to relate to the
 individual officer’s circumstances. Basic rules of grammar
 compel this conclusion. The “unusual circumstances”
 clause is not an invitation to the Secretary to blanketly re-
 write the regulation. See, e.g., Starry Assocs., Inc. v. United
 States, 892 F.3d 1372, 1380–81 (Fed. Cir. 2018) (“Though
 the term ‘special factor,’ standing alone, is ambiguous, Con-
 gress’s decision to include an example of a qualifying ‘spe-
 cial factor’ cabins the contextual meaning of the term.”).
 Congress vested that power in the Secretary of Defense
 alone. 10 U.S.C. § 637(e).
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 18                                    BAUDE v. UNITED STATES




      The government and the dissent contend that it is non-
 sensical to read “unusual circumstances” as “limited to the
 personal circumstances of the officer.” Appellee Supp. Br.
 17; Dissent Op. 10–11. The government insists: “nothing
 in the plain meaning of the instruction precludes the Sec-
 retary from identifying unusual circumstances that im-
 pacted the Air Force as a whole.” Id. But context and
 history suggest otherwise. As to context, the “unusual cir-
 cumstances” language in the regulation comes after the im-
 position of a presumption of continuation and is in the
 sentence referring to the non-continuation of individual of-
 ficers. The only enumerated example of an “unusual cir-
 cumstance” in the regulation, moreover, is “when an
 officer’s official personnel record contains derogatory infor-
 mation.” DoDI 1320.08, ¶ 6.3. The law is clear that, when
 interpreting statutes or regulations, the provided example,
 while not always deemed exclusive, indicates the character
 of the circumstances to be considered. See, e.g., Yates v.
 United States, 574 U.S. 528, 1085 (2015) (“[W]e rely on the
 principle of noscitur a sociis—a word is known by the com-
 pany it keeps—to ‘avoid ascribing to one word a meaning
 so broad that it is inconsistent with its accompanying
 words, thus giving unintended breadth to the Acts of Con-
 gress.’”). Accordingly, unenumerated circumstances must
 be of that same general character and not totally divorced
 from the circumstances described. Because “[a]n exception
 to a ‘general statement of policy’ is ‘usually read . . . nar-
 rowly in order to preserve the primary operation of the pro-
 vision,’” we decline the government’s invitation to interpret
 “unusual circumstances” so broadly as to “operate to the
 farthest reach of [its] linguistic possibilities” in a manner
 that “contravene[s] the statutory design.” Maracich v.
 Spears, 570 U.S. 48, 60 (2013).
     As for history, the government’s position in this case is
 inconsistent with how it has defined unusual circum-
 stances in communications to members of Congress and the
 public and what it conceded to Congress is the Air Force’s
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 BAUDE v. UNITED STATES                                       19



 long-standing policy. See, e.g., Appx1003 (“[T]he Selective
 Continuation Board had discretion to nonrecommend con-
 tinuation of officers with these special skills or more than
 15 years of service if the officer’s record did not clearly jus-
 tify continuation (e.g., derogatory information, Article
 15s/disciplinary action, referral performance reports).”);
 Appx1001 (explaining that officers are generally continued
 unless there is derogatory information in their file). See
 also Appx1009 (“In accordance with the ‘normal’ policy con-
 tained in the DoDI, the Air Force has traditionally contin-
 ued officers who are within 6 years of retirement eligibility
 until 20 years of service, absent some other reason not to
 do so, such as where the officer’s record contains derogatory
 information.”).
      Advancing new arguments on behalf of the govern-
 ment, the dissent asserts that an “unusual circumstance”
 is not limited to an individual’s circumstances because
 “Congress expressly ‘intended’ for the SecAF’s selective
 continuation authority ‘to be used sparingly and . . . pri-
 marily [as] a means of reducing the numbers in senior [of-
 ficer] grades when necessary, such as during a reduction in
 force.’” Dissent Op. 11 (quoting H.R. Rep. No. 96–1462, at
 27 (1980)). But the dissent misunderstands the context of
 the House Report for 10 U.S.C. § 637. Read in the context
 of the full report, it is clear that Congress is explaining why
 selective-continuation boards are necessary—not whether
 the need to reduce manpower itself is an “unusual circum-
 stance,” nor whether those Boards could be employed in a
 manner not contemplated by Department of Defense regu-
 lations. H.R. Rep. 96–1462, at 27 (1980). The dissent mis-
 construes Congress’s explanation for the implementation
 of selective-continuation boards as an authorization for the
 SecAF to use those Boards in a manner that violates the
 governing regulation, whenever he believes there is a need
 to reduce manpower.
     The regulation is unambiguous. A Selective Continua-
 tion Board “shall normally” continue an O-4 grade officer
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 20                                    BAUDE v. UNITED STATES




 within six years of retirement absent “unusual circum-
 stances” in an officer’s case, such as derogatory infor-
 mation.      The “shall normally” language instructs
 continuation boards what standard to apply: continue an
 officer unless there is a reason not to do so. It is not merely
 a suggestion. Under the plain language of the regulation,
 the SecAF’s instructions violated DoDI 1320.08 and misin-
 terpreted the regulation.
         C. The Secretary of the Air Force Did Not
          Identify Any “Unusual Circumstances”
      Furthermore, even if the SecAF had the authority to
 declare any circumstance to be sufficiently unusual to jus-
 tify rewriting other aspects of the regulation (which he did
 not), there simply were no “unusual circumstances” identi-
 fied here. “[A] foundational principle of administrative law
 [is] that a court may uphold agency action only on the
 grounds that the agency invoked when it took the action.”
 Michigan v. E.P.A., 135 S. Ct. 2699, 2710 (2015) (citing
 SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)). This rule
 requires agency judgments to stand on their own merit.
 Otherwise, they cannot stand at all. Chenery, 318 U.S. at
 88 (“If an order is valid only as a determination of policy or
 judgment which the agency alone is authorized to make
 and which it has not made, a judicial judgment cannot be
 made to do service for an administrative judgment.”).
 Here, that means we may only affirm based on the ra-
 tionale offered by the SecAF in changing the protective
 window.
     The government concedes that there were no “unusual
 circumstances” akin to derogatory information in Engle’s
 file that would have justified his non-continuation.
 See Oral Arg. at 20:42–51. Nor did the SecAF point to any
 such circumstance in his decision in this matter. The Se-
 cAF’s notice to the USD(P&R) and memorandum of in-
 structions, for example, mention no unusual circumstances
Case: 18-2038    Document: 39      Page: 21    Filed: 04/09/2020




 BAUDE v. UNITED STATES                                     21



 of any kind. Appx1005; Appx33. That alone should end
 the inquiry. 8 See Chenery, 318 U.S. at 88.
      In spite of this, the Claims Court concluded that “re-
 ducing manpower while also maintaining an appropriate
 mix of airmen” was an “unusual circumstance” that trig-
 gered the SecAF’s authorization to modify the regulation.
 Baude, 137 Fed. Cl. at 455. As we explained above, how-
 ever, there is no such authorization. The Air Force’s force
 management actions cannot constitute “unusual circum-
 stances” under the governing regulation because the term
 is limited to those personal in nature.
     Even accepting that the unusual circumstance contem-
 plated in the regulation need not be related to the officers’
 service, the Claims Court’s finding is unsupported by the
 record. The SecAF’s notice, spanning a single paragraph,
 does not discuss maintaining a certain mix of officers,
 much less explain why that was an unusual circumstance.
 See Appx1005. Similarly, the SecAF’s memorandum of in-
 structions to the Board does not identify the need to reduce
 manpower and simultaneously maintain an appropriate
 mix of airmen, as the Claims Court’s opinion purports. Id.;
 Baude, 137 Fed. Cl. at 456. Nor does it define what an ap-
 propriate “mix of airmen might be.” Indeed, the SecAF’s




     8    The dissent attempts to argue away the govern-
 ment’s admission, asserting that “[t]here is simply no rec-
 ord evidence to support this finding [of no unusual
 circumstances].” Dissent Op. 19. But the government’s ad-
 mission that there were no unusual circumstances in
 Engle’s personal record is not a factual finding by the court.
 It is a concession by the appellee that there were no unu-
 sual circumstances, as defined by the regulation.
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 22                                  BAUDE v. UNITED STATES




 notice does not even characterize its force management ef-
 forts as irregular or “unusual.” 9 Appx1005.
     In an attempt to justify a finding of “unusual circum-
 stances” despite the SecAF’s failure to identify any, the
 AFBCMR pulled language from a memorandum submitted
 by the Air Force Personnel Center Judge Advocate. The
 memorandum stated that “the requirement to add to the
 normal force management mix a change in the retirement
 window for twice nonselected majors to be selectively con-
 tinued does represent an unusual circumstance indicative
 of the more drastic measures required at that time.”
 SAppx1011. This argument is odd. It merely states that
 the need to change the protective window was an “unusual
 circumstance.”    But that says nothing about what
 prompted that need or how it could justify a complete dis-
 regard of the regulatory presumption in favor of continua-
 tion. Nor do the AFBCMR’s findings. See Appx109, 115.
 At most, the AFBCMR generally “adopt[ed]” the Air Force’s
 arguments without providing any further explanation
 about why the need to reduce manpower gives rise to a
 need to prematurely non-continue officers in good stand-
 ing. Appx114–15.
     Accordingly, even if the SecAF could deviate from the
 protective window defined by DoDI 1320.08 in unusual


      9  The dissent contends that the SecAF’s failure to
 identify an unusual circumstance is not a negative claim,
 but rather, “an incomplete record.” Dissent Op. 19. The
 dissent insists that the burden lies on Mr. Engle to estab-
 lish “prejudicial error.” Dissent Op. 20. But even the gov-
 ernment’s own briefing contravenes the dissent’s protests.
 The government admits that, with respect to the decision
 to non-continue a particular officer, “the plain meaning of
 DoDI 1320.08, ¶ 6.3 requires the Secretary to bear the bur-
 den to identify ‘unusual circumstances.’” Appellee Supp.
 Br. 2. The SecAF did not do so.
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 BAUDE v. UNITED STATES                                     23



 circumstances, and even if a need for reduction in force
 while maintaining a certain mix of airmen could be consid-
 ered an unusual circumstance within the meaning of DoDI
 1320.08 to justify such a deviation, there is no basis for af-
 firming his decision to do so here.
      Finally, as discussed to some extent above, we must re-
 ject the dissent’s attempts to bolster its reasoning by mak-
 ing arguments that the government has not advanced. It
 is not the job of the court, the “neutral arbiter,” to raise
 questions that are not presented by the parties. Greenlaw
 v. U.S., 554 U.S. 237, 244 (2008). “Our adversary system
 is designed around the premise that the parties know what
 is best for them, and are responsible for advancing the facts
 and arguments entitling them to relief.” Castro v. United
 States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in
 part and concurring in judgment). 10
     We find these sua sponte arguments are unpersuasive
 in any event. See supra Sections II.A–C. Neither the plain
 text of the regulation, the legislative history, nor the Se-
 cAF’s own notice support the SecAF’s decision to modify the
 protective threshold stipulated in, or reverse the presump-
 tion required by, DoDI 1320.08. The dissent’s contention
 that our conclusion “fails to give appropriate weight to this
 separation of powers” and “divests the Secretary of the Air
 Force of his authority to meet congressionally mandated
 end-strength numbers and his discretion to manage the
 U.S. Air Force’s work force” are unpersuasive. Dissent Op.
 2, 15. There is no dispute that Congress has the power to
 mandate end-strength numbers, or that the Air Force has
 “wide discretion to manage its workforce,” Allphin v.
 United States, 758 F.3d 1336, 1341 (Fed. Cir. 2014). As


     10   And, as discussed above, “a foundational principle
 of administrative law [is] that a court may uphold agency
 action only on the grounds that the agency invoked when
 it took the action.” Michigan, 135 S. Ct. at 2710.
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 24                                  BAUDE v. UNITED STATES




 noted above, the Air Force has “various force management
 tools” to help attain Congressionally mandated end-
 strength numbers. Appx18. But the SecAF’s use of
 DoDI 1320.08 as an alternative “tool” for reducing man-
 power was improper because it did not follow the require-
 ments of the regulation, and because the SecAF did not
 have authority to rewrite the regulation that he violated,
 one that emanated from the Secretary of Defense. The
 need to reach “congressionally mandated end-strength” is
 not an unusual circumstance—under the regulation or oth-
 erwise. The government itself concedes this point. Appel-
 lee Supp. Br. 18 (“[O]f course the Air Force has had
 excessive manpower in the past.”). Our holding does not
 limit the broad discretion of the military to manage its
 force. It simply stands for the rule that “government offi-
 cials must follow their own regulations, even if they were
 not compelled to have them at all, and certainly if directed
 to promulgate them by Congress.” Voge v. United States,
 844 F.2d 776 779 (Fed. Cir. 1988) (citing Service v. dulles,
 354 U.S. 363, 388 (1957)). The Air Force had a number of
 ways to reduce manpower, this was just not one of them.
      D. DoDI’s “Notification” Requirement Does Not
            Allow the Secretary of the Air Force
         to Non-Continue Officers for Any Reason
     Alternatively, the government argues that the last sen-
 tence of DoDI 1320.08 ¶ 6.3, which states the Secretary of
 a Military Department must notify the USD(P&R) before
 non-continuing “larger pools” of officers within six years
 from retirement, allows the Secretary to non-continue of-
 ficers within six years from retirement for any reason. The
 government’s reading renders the rest of the paragraph su-
 perfluous. For example, the Secretary’s power to discharge
 an officer within six years from retirement in “unusual cir-
 cumstances” becomes unnecessary if the next sentence al-
 lows him to discharge that same officer for any reason he
 chooses. Indeed, the government contends that the ques-
 tion of whether unusual circumstances existed is irrelevant
Case: 18-2038    Document: 39      Page: 25     Filed: 04/09/2020




 BAUDE v. UNITED STATES                                      25



 for this very reason. See Appellee Supp. Br. 16 (“[E]ven if
 the Secretary’s ‘unusual circumstances’ determination was
 erroneous, Engle cannot demonstrate prejudicial error, be-
 cause DoDI 1320.08 ¶ 6.3 did not require the Secretary
 reach such a determination.”); Oral Arg. at 25:55–26:06
 (“[The Court:] So, you are saying that the un-usual circum-
 stances language is irrelevant . . . [Counsel:] Yes, that is
 our primary argument.”).
      The government’s argument is not persuasive. The
 language governing non-continuance of “larger pools of of-
 ficers” stipulates an additional requirement. It is reasona-
 ble to assume that, if a department secretary determines
 that a large pool of O-4 officers should not be continued—
 even though they should normally be continued—the
 USD(P&R) would want to be apprised of this abnormality.
 Oral Arg. at 38:28–38:52 (“[Counsel for Appellant]: It is en-
 tirely reasonable to expect that the Undersecretary of De-
 fense for Personnel and Readiness would want to know if
 suddenly, a material number—a critical mass—of officers
 in a particular military branch were not going to be contin-
 ued.”) The “notification” requirement, however, does not
 allow the Secretary to depart sub silentio from the prior
 rules that apply to each individual officer. The govern-
 ment’s interpretation of the regulation “is thus at odds with
 one of the most basic interpretive canons:” that a statute or
 regulation “should be construed so that effect is given to all
 its provisions, so that no part will be inoperative or super-
 fluous, void or insignificant . . . .” Corley v. United States,
 556 U.S. 303, 314 (2009).              The SecAF effectively
 “[s]uspend[ed]” Department of Defense regulations in favor
 of his own rules. Appx1005. See, e.g., Godwin, 338 F.3d at
 1379 (“The Coast Guard’s sphere of discretion . . . does not
 extend so far that we would ignore [decisions] that are in-
 consistent with [its] own regulations.”). It seems that the
 final sentence of DoDI 1320.08 is more likely a notification
 requirement designed to guard against just what happened
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 26                                     BAUDE v. UNITED STATES




 here—the use of Continuation Boards for purposes not con-
 templated by the regulation.
                     E. Remaining Issues
     Given our finding that the Secretary of the Air Force’s
 instructions violated DoDI 1320.08 because the Secretary
 of the Air Force lacked the authority to narrow the protec-
 tive window or disregard the regulatory presumption in fa-
 vor of continuation, we do not reach Engle’s remaining
 arguments.
      In addition, Engle has requested relief in this case on
 behalf of himself and the other plaintiffs from the consoli-
 dated Claims Court case. But Engle is not an attorney, so
 he cannot represent these other plaintiffs. Federal Circuit
 Rule 47.3(a) (“An individual . . . may choose to be repre-
 sented by counsel or to represent himself or herself pro se,
 but may not be represented by a nonattorney.”). He also
 cannot rest his claim for relief on their rights and interests.
 See Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[T]his Court
 has held that the plaintiff generally must assert his own
 legal rights and interests, and cannot rest his claim to re-
 lief on the legal rights or interests of third parties.”). 11 We
 therefore dismiss the claims of the other officers.




      11 There are, of course, important exceptions to this
 rule. See, e.g., Kowalski v. Tesmer, 543 U.S. 125, 129–30
 (2004); see also Fed. R. Civ. P. 32. But none apply here.
 For example, these cases, though consolidated, were nei-
 ther asserted nor treated as a class action. See United
 States v. Sanchez-Gomez, 138 S. Ct. 1532, 1539 (2018)
 (“[C]ourts may not recognize a common-law kind of class
 action or create de facto class actions at will.” (internal quo-
 tation marks and ellipses omitted).
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 BAUDE v. UNITED STATES                                  27



                      III. CONCLUSION
     “It has long been established that government officials
 must follow their own regulations.” Voge v. United States,
 844 F.2d 776, 779 (Fed. Cir. 1988). The SecAF modified a
 regulation that is meant to protect individuals who have
 spent most of their lives in service to this country. These
 men and women deserve a system that follows its own
 rules, and a reviewing forum that does more than rubber-
 stamp the actions of military officials.
     Engle has demonstrated that the AFBCMR’s decision
 is arbitrary, contrary to law, and unsupported by substan-
 tial evidence. We therefore vacate the Claims Court’s
 grant of the government’s motion for judgment on the ad-
 ministrative record, reverse the Claims Court’s denial of
 plaintiff’s cross-motion for summary judgment, and re-
 mand, with instructions to convene a special board for re-
 consideration of Engle’s non-continuation through a
 process consistent with the plain meaning of DoDI 1320.08.
 See Baude, 137 Fed. Cl. at 446.
      DISMISSED-IN-PART, VACATED-IN-PART,
       REVERSED-IN-PART, AND REMANDED
                           COSTS
     Costs to appellant.
Case: 18-2038   Document: 39     Page: 28   Filed: 04/09/2020




    United States Court of Appeals
        for the Federal Circuit
                 ______________________

      BRIAN R. BAUDE, JOANNA L. MITCHELL,
   RANDALL E. FELTNER, JASON K. HUMPHREY,
  JEFFREY W. KERNEKLIAN, DAVID C. KIRKMAN,
     KENJI LIGON, KALE M. MOSLEY, RICHARD
  PERRON, CHRISTOPHER T. PROTT, ROBERT B.
 RUSSELL, STEVEN P. SCHREFFLER, ERIC SUCIU,
    JAMES A. TREVINO, JOSEPH WILLIAMS, JR.,
                KIRK M. SHAFFER,
                    Plaintiffs

                   JASON D. ENGLE,
                    Plaintiff-Appellant

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2018-2038
                 ______________________

     Appeal from the United States Court of Federal Claims
 in Nos. 1:16-cv-00049-EJD, 1:16-cv-00051-EJD, 1:16-cv-
 00053-EJD, 1:16-cv-00054-EJD, 1:16-cv-00055-EJD, 1:16-
 cv-00056-EJD, 1:16-cv-00057-EJD, 1:16-cv-00058-EJD,
 1:16-cv-00059-EJD, 1:16-cv-00060-EJD, 1:16-cv-00061-
 EJD, 1:16-cv-00062-EJD, 1:16-cv-00063-EJD, 1:16-cv-
 00064-EJD, 1:16-cv-00065-EJD, 1:16-cv-00066-EJD, 1:16-
 cv-00392-EJD, Senior Judge Edward J. Damich.
                  ______________________
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 2                                      BAUDE v. UNITED STATES




 WALLACH, Circuit Judge, dissenting.
     This case is about the balance between Congress’s
 power to “raise and support Armies,” U.S. CONST. art. I,
 § 8, cl. 12, and the judiciary’s authority to “say what the
 law is,” Marbury v. Madison, 5 U.S. 137, 177 (1803); see
 Fisher v. United States, 402 F.3d 1167, 1177 (Fed. Cir.
 2005) (en banc) (“A court may decide whether the military
 has complied with procedures set forth in its own regula-
 tions[.]”). The Majority, neglecting the former in exercise
 of the latter, misreads paragraph 6.3 of Department of De-
 fense Instruction (“DoDI”) 1320.08, Continuation of Com-
 missioned Officers on Active Duty and on the Reserve Active
 Status List (Mar. 14, 2007), and divests the Secretary of the
 Air Force (“SecAF”) of his authority to meet congressionally
 mandated end-strength numbers and his discretion to
 manage the U.S. Air Force’s (“Air Force”) work force. The
 Majority opinion is incorrect in substance and pernicious
 in effect. The result is a derogation of civilian control of the
 military and the good order and discipline of the armed ser-
 vices.
     Accordingly, I respectfully dissent.
                         BACKGROUND
                   I. Statutory Framework
      If an Air Force major has “failed of selection for promo-
 tion to the next higher grade for the second time” (that is,
 “twice-deferred”), the major will, with limited exception,
 “be discharged” or, if eligible, “retired” from the Air Force.
 10 U.S.C. § 632(a)(1), (2). A twice-deferred major may re-
 main in active service if he or she is selected for continua-
 tion of service by a selective continuation board. See id.
 § 611(b); see also id. § 637. If a twice-deferred major “is
 within two years of qualifying for retirement[,]” then the
 selective continuation board must continue him or her on
 active duty “until he [or she] is qualified for retirement.”
 Id. § 632(a)(3); see id. § 637(a)(5). If a twice-deferred major
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 BAUDE v. UNITED STATES                                       3



 is not within two years of retirement, the SecAF retains
 discretion over the continuation decision. Id. § 637(c)
 (“Continuation of an officer on active duty under [§ 637]
 pursuant to the action of a selection board convened under
 [§] 611(b) . . . is subject to the approval of the Secretary of
 the military department concerned.”). Majors not selected
 for continuation are “discharged” or “retired.”             Id.
 § 632(a)(1), (2).
      The Secretary of Defense promulgated DoDI 1320.08
 pursuant to, inter alia, §§ 611(c) and 637(e). DoDI 1320.08.
 The SecAF “may, when the needs of the [Air Force] require,
 convene continuation selection boards according to
 [§] 611(b).” Id. ¶ 6.3. The continuation selection board
 “shall normally” continue a major who may otherwise be
 discharged, if that officer “will qualify for retire-
 ment . . . within [six] years of the date of continuation.” Id.
 The SecAF “may, in unusual circumstances such as when
 an officer’s official personnel record contains derogatory in-
 formation, discharge an officer involuntarily in accordance
 with [§] 632.” Id. If the SecAF “intends not to continue
 larger pools of officers . . . who would qualify for retirement
 within [six] years,” the SecAF “shall notify the [Depart-
 ment of Defense Undersecretary for Defense for Personnel
 and Readiness (‘USD(P&R)’)] of the proposed course of ac-
 tion.” Id.
                II. Relevant Procedural History
      In November 2010, the Air Force briefed the
 USD(P&R) “on a number of planned measures to reduce
 officer numbers which included limiting selective continu-
 ation of various officers” in order to meet congressionally
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 4                                     BAUDE v. UNITED STATES




 mandated end-strength 1 numbers for that fiscal year. 2
 SAppx 105; see Ike Skelton National Defense Authorization
 Act for Fiscal Year 2011 (“NDAA FY11”), Pub. L. No. 111-
 383, § 401, 124 Stat. 4137, 4202 (2011); SAppx 129 (provid-
 ing the mandated end-strength numbers for the Air Force
 for Fiscal Year 2011). In December 2010, the SecAF noti-
 fied the USD(P&R) that, in furtherance of the Air Force’s
 ongoing “efforts to manage [its] officer corps and bring [the
 Air Force] within congressionally mandated end-strength,
 [he] intend[ed] to exercise [his] authority contained in
 DoDI 1320.08 ¶ 6.3 to not selectively continue large pools
 of twice-deferred [majors] . . . who would otherwise qualify
 for retirement within [six] years.” Appx 1005. The
 USD(P&R) acknowledged receipt. SAppx 105. The Air
 Force briefed “[c]ongressional subcommittee professional
 staff members” on the plan in January 2011. SAppx 105.
 The Air Force again briefed the USD(P&R) “on the final
 plan” at the end of January 2011. SAppx 105.
     In March 2011, Appellant Jason Engle, then a major in
 the Air Force, was passed over for a promotion to lieuten-
 ant colonel for the second time. See Baude v. United States,
 137 Fed. Cl. 441, 445 (2018). 3 A selective continuation



     1   “End-strength” is “the maximum number of per-
 sonnel each of the military services is authorized to have
 on the last day of the fiscal year.” SAppx 147 (citation omit-
 ted).
     “SAppx” refers to the supplemental appendices at-
 tached to the Government’s informal brief and supple-
 mental brief. “Appx” refers to the appendices attached to
 Mr. Engle’s informal brief and supplemental brief.
     2   The Federal fiscal year begins on October 1 of the
 previous calendar year. See 2 U.S.C. § 602(e).
     3   Because this is an appeal from a consolidated case,
 the administrative record is not specific to Mr. Engle, but
 rather to the lead plaintiff in the case below. See Baude,
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 BAUDE v. UNITED STATES                                     5



 board (“the Selective Continuation Board”) was convened
 to consider multiple officers, including Mr. Engle, for con-
 tinuation to retirement eligibility. Id. The SecAF in-
 structed the Selective Continuation Board to continue
 majors “who [would] qualify for retirement within five
 years of the convening date of the [Selective Continuation
 Board].” Appx 33. Mr. Engle was within six years of re-
 tirement. Baude, 137 Fed. Cl. at 445. The Selective Con-
 tinuation Board declined to recommend 157 out of 245
 individuals, including Mr. Engle, for continuation. See id.
 The SecAF approved the Selective Continuation Board’s
 determination, and Mr. Engle and the other 156 majors
 were involuntarily discharged. Id. The Air Force again
 briefed congressional subcommittee professional staff
 members in March and May 2011. SAppx 147.
      In 2013, sixteen of the 157 majors, including Mr. Engle,
 (collectively, “Petitioners”), applied separately to the Air
 Force Board for Correction of Military Records
 (“AFBCMR”) to convene a special board to correct their mil-
 itary records under 10 U.S.C. § 1558. Baude, 137 Fed. Cl.
 at 445; SAppx 104; see 10 U.S.C. § 1558 (providing for the
 “[r]eview of actions of selection boards”). They asked to be
 reinstated to active duty or, alternatively, granted pro-
 rated retirement. SAppx 102. They argued that the SecAF
 had “violated [DoDI] 1320.08” by “erroneously applying” a
 continuation eligibility window of five rather than six years
 to retirement. SAppx 102. The AFBCMR denied the ap-
 plications, finding “no basis to grant any of the relief re-
 quested.” SAppx 116.




 137 Fed. Cl. at 445 (explaining that “Major Brian R.
 Baude . . . was the first to file his complaint” and that his
 case was subsequently “consolidate[d] [with] fifteen other
 cases as they involved the same common questions of fact
 and law,” among them, Mr. Engle’s).
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 6                                     BAUDE v. UNITED STATES




      Mr. Engle and the other Petitioners then filed separate
 appeals in the U.S. Court of Federal Claims, and their
 cases were consolidated. Baude, 137 Fed. Cl. at 445. The
 Court of Federal Claims remanded the consolidated case to
 the AFBCMR, to consider the Petitioners’ request for spe-
 cial boards. Id. at 446. On remand, the AFBCMR con-
 cluded that there was “no basis to grant [Petitioners]
 consideration by a special board.” SAppx 135. The Peti-
 tioners then moved to supplement the administrative rec-
 ord before the Court of Federal Claims. Baude, 137 Fed.
 Cl. at 445. Petitioners sought to compel the Government to
 supplement the administrative record with, inter alia, “de-
 tails (copies of the brief provided, briefing materials, tran-
 scripts, and any and all correspondence) of the information
 SecAF briefed to the USD(P&R) [in January 2011] regard-
 ing SecAF’s intent to not selectively continue certain offic-
 ers”; “details (copies of the brief provided, briefing
 materials, transcripts, and any and all correspondence) of
 the information the Air Force briefed to USD(P&R) and
 [c]ongressional subcommittee staff members on January
 12, 13, and 24, 2011 regarding SecAF’s intent to not selec-
 tively continue certain officers”; and “details (copies of the
 brief provided, briefing materials, transcripts, and any and
 all correspondence) of the information the Air Force briefed
 to [c]ongressional subcommittee staff members on March
 17, 2011[,] and May 11, 2011[,] regarding SecAF’s intent to
 not selectively continue certain officers.” SAppx 147. The
 Court of Federal Claims denied Petitioners’ motion, ex-
 plaining that Petitioners’ requested “‘details’ [were] di-
 rected to the [non-justiciable] merits of the Air Force’s
 decision as to whether or not it should have reduced its
 end-strength and how it should have reduced its end-
 strength” and “that despite being before the [AFBCMR]
 twice, [Petitioners] failed to identify that this evidence was
 missing during review and, therefore, waived its supple-
 mentation rights.” SAppx 149 (emphasis in original).
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 BAUDE v. UNITED STATES                                        7



     Petitioners and the Government then filed cross-mo-
 tions for judgment on the administrative record in the
 Court of Federal Claims. Baude, 137 Fed. Cl. at 445. In
 granting the Government’s motion, the Court of Federal
 Claims determined that the SecAF “did possess the discre-
 tion not to continue a major,” and that “there was an unu-
 sual circumstance that triggered [the SecAF’s] authority”
 under DoDI 1320.08. Id. at 455–56.
                          DISCUSSION
     The Majority concludes that “[t]he SecAF’s instructions
 to the Selective Continuation Board directly violated
 DoDI 1320.08,” Maj. Op. 14, because DoDI 1320.08 ¶ 6.3
 requires that the SecAF “continue [an] officer [within six
 years of retirement] unless there is” an individualized “un-
 usual circumstance” to justify non-continuation, “e.g., de-
 rogatory information in their personnel file,” id. at 5; see id.
 at 17–20. The Majority then finds that there were no indi-
 vidual “unusual circumstances” to merit Mr. Engle’s non-
 continuation, and that, even if non-individualized “unusual
 circumstances” could justify narrowing eligibility criteria
 “there simply were no ‘unusual circumstances’ identified
 here.” Id. at 20–21.
     The Majority opinion suffers from two critical defects.
 First, the Majority misreads DoDI 1320.08 ¶ 6.3. Second,
 the Majority overreaches our standard of review to find
 facts not on the record.
        I. The Majority Misconstrues DoDI 1320.08
      A. The Majority Misreads the Plain Language of
                    DoDI 1320.08 ¶ 6.3
     “We construe a regulation in the same manner as we
 construe a statute[.]” Tesoro Haw. Corp. v. United States,
 405 F.3d 1339, 1346 (Fed. Cir. 2005). We first consider “its
 plain language” and “terms in accordance with their com-
 mon meaning.” Lockheed Corp. v. Widnall, 113 F.3d 1225,
 1227 (Fed. Cir. 1997). “In doing so, the court considers the
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 8                                     BAUDE v. UNITED STATES




 text of the regulation as a whole, reconciling the section in
 question with sections related to it.” Mass. Mut. Life Ins.
 Co. v. United States, 782 F.3d 1354, 1365 (Fed. Cir. 2015)
 (internal quotation marks and citation omitted). If the reg-
 ulation contains “clear and unambiguous” terms, “then no
 further inquiry is usually required.” Id.
     We begin with the language of the regulation itself.
 DoDI 1320.08 provides that a twice-deferred major “shall
 normally be selected for continuation” if the officer is
 “within [six] years” of retirement on “the date of continua-
 tion.” DoDI 1320.08 ¶ 6.3. The Majority concludes that the
 phrase “shall normally” creates a “presumption,” Maj.
 Op. 15, under which the SecAF must “continue [an] officer
 [within six years of retirement] unless there is a reason not
 to do so,” id. at 20. The Majority says that “applying this
 presumption is mandatory, even if continuation is not.” Id.
 at 15. This erroneously reads “normally” out of the regula-
 tion. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (ex-
 plaining a “cardinal principal of statutory construction that
 a statute” or regulation is read so that “no clause, sentence,
 or word shall be superfluous, void, or insignificant” (inter-
 nal quotation marks and citation omitted)); King v. St. Vin-
 cent’s Hosp., 502 U.S. 215, 221 (1991) (“Words are not
 pebbles in alien juxtaposition.” (quoting NLRB v. Feder-
 bush Co., 121 F.2d 954, 957 (2d Cir. 1941) (L. Hand, J.))).
 While use of the word “shall,” by itself, is generally manda-
 tory, Lexecon Inc. v. Milberg Weiss Bershad Hynes & Ler-
 ach, 523 U.S. 26, 35 (1998) (explaining that “shall”
 generally creates “an obligation impervious to judicial dis-
 cretion” (citation omitted)), “shall normally” is permissive,
 see, e.g., SKF USA Inc. v. United States, 630 F.3d 1365,
 1371 (Fed. Cir. 2011) (explaining that statutory language
 providing that an agency “shall normally” use a specified
 methodology “does not mandate” use of that methodology);
 Am. Silicon Techs. v. United States, 261 F.3d 1371, 1377
 (Fed. Cir. 2001) (interpreting the phrase “shall normally”
 as providing “a general,” not mandatory, “rule,” leaving
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 BAUDE v. UNITED STATES                                        9



 choice of methodology within the reasonable discretion of
 the agency). Accordingly, “shall normally” conveys the Se-
 cAF’s discretion to set the criteria for continuation—it cre-
 ates a norm and provides the discretion to deviate from
 that norm. See Kingdomware Techs., Inc. v. United States,
 136 S. Ct. 1969, 1977 (2016) (explaining that permissive
 language “implies discretion”); see also 10 U.S.C. § 637(c)
 (providing that continuation is “subject to the approval of
 the [SecAF]”); Maier v. Orr, 754 F.2d 973, 984 (Fed. Cir.
 1985) (“The Air Force is entitled to discharge an officer on
 grounds rationally related to the standards of fitness for
 retention in that branch of the service.” (citation omitted)). 4
      Next, DoDI 1320.08 provides that, even if an officer
 otherwise meets the criteria for continuation, the SecAF
 “may, in unusual circumstances such as when an officer’s
 official personnel record contains derogatory information,
 discharge an officer involuntarily in accordance with



     4    This discretion is confirmed in other parts of DoDI
 1320.08. Specifically, the SecAF has discretion to set the
 length of the period of continuation. 10 U.S.C. § 637(a)(5)
 (providing guaranteed continuation only for officers
 “within two years of qualifying for retirement”);
 DoDI 1320.08 ¶¶ 6.3.1–2 (setting express limits, “Mini-
 mum” and “Maximum Continuation Period[s],” thereby ac-
 knowledging the SecAF’s discretion to act within those
 limits); Air Force Instruction (“AFI”) 36-2501, Officer Pro-
 motion and Selective Continuation (July 16, 2004),
 https://static.e-publishing.af.mil/production/1/af_a1/publi-
 cation/afi36-2501/afi36-2501.pdf at ¶¶ 7.9 (providing that
 “[b]ased on the needs of the Air Force, [the] SecAF deter-
 mines [continuation] eligibility criteria”), 7.11.1 (“The Se-
 cAF determines the actual length of the continuation
 period.”), 7.18 (“The period of continuation on active duty
 may be reduced by the SecAF due to subsequent changes
 in the ‘critical skill needs’ of the Air Force.”).
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 10                                     BAUDE v. UNITED STATES




 [§] 632.” DoDI 1320.08 ¶ 6.3. From this, the Majority con-
 cludes that the SecAF must find “unusual circumstances”
 to not continue an officer and that the “unusual circum-
 stances” must “relate to the individual officer’s circum-
 stances.” Maj. Op. 18. This reading, however, fails to
 consider regulatory and statutory context. See Mass. Mut.
 Life Ins., 782 F.3d at 1365. DoDI 1320.08 ¶ 6.3’s “unusual
 circumstances” clause does not divest the SecAF of his dis-
 cretion to set continuation eligibility criteria according to
 the needs of the service. See 10 U.S.C. § 637(a)(1) (provid-
 ing that continuation is “subject to the needs of the ser-
 vice”); DoDI 1320.08 ¶ 6.3 (providing that the SecAF “shall
 normally” continue officers within six years of retirement).
 Rather, it establishes that an officer who otherwise meets
 the continuation eligibility criteria, as set by the SecAF,
 may be involuntarily discharged, rather than retired or
 continued, in “unusual circumstances.” DoDI 1320.08
 ¶ 6.3; see 10 U.S.C. § 632(a)(1), (2) (providing that an officer
 not selected for continuation may be “discharged” or, if eli-
 gible, “retired”); SAppx 1001 (Air Force Selective Continu-
 ation Fact Sheet) (explaining that “those individuals
 meeting the continuation eligibility criteria will be consid-
 ered” by the selective continuation board” and “[r]ecords
 which contain . . . derogatory information may warrant a
 ‘not fully qualified’ determination”).
      Further, even if this language did require the SecAF to
 find “unusual circumstances” before changing continuation
 eligibility criteria, nothing in the language of DoDI 1320.08
 or relevant statutes limits those “unusual circumstances”
 to individual “derogatory information.” DoDI 1320.08
 ¶ 6.3. The Majority provides that “[t]he law is clear that,
 when interpreting statutes or regulations, the provided ex-
 ample, while not always deemed exclusive, indicates the
 character of the circumstances to be considered.” Maj.
 Op. 18. “The law,” however, is not so absolute—ejusdem
 generis and noscitur a sociis cannot “be resorted to” in order
 “to obscure and defeat the intent and purpose of Congress.”
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 BAUDE v. UNITED STATES                                      11



 United States v. Alpers, 338 U.S. 680, 682 (1950) (citation
 omitted); see Gustafson v. Alloyd Co., 513 U.S. 561, 575
 (1995) (providing that we rely on “the doctrine of noscitur
 a sociis . . . to avoid ascribing to one word a meaning so
 broad that it is inconsistent with its accompanying words,
 thus giving unintended breadth to the Acts of Congress”).
 Here, when enacting 10 U.S.C. § 637, Congress expressly
 “intended” for selective continuation “to be used sparingly
 and . . . primarily [as] a means of reducing the numbers in
 senior [officer] grades when necessary, such as during a re-
 duction in force.” H.R. REP. No. 96–1462, at 27 (1980); see
 S. REP. No. 96–375, at 81 (1979) (similar). Congress’s ex-
 press purpose was to create a force management tool re-
 sponsive to congressionally mandated end-strength
 numbers. See H.R. REP. No. 96–1462 at 27 (“With the elim-
 ination of the temporary promotion system, some provision
 for forced separation is required. Otherwise there would
 be no method of thinning the force at senior grades during
 a reduction in force.”). Reading “unusual circumstances”
 so narrowly as to defeat this intent and purpose, based on
 a single, non-exclusive example, is an error. See Christo-
 pher v. SmithKline Beecham Corp., 567 U.S. 142, 163
 (2012) (declining to apply “the rule of ejusdem generis” to
 “defeat Congress’ intent”); Ali v. Fed. Bureau of Prisons,
 552 U.S. 214, 225 (2008) (explaining that “[t]he absence of
 a list of specific items undercuts the inference embodied in
 ejusdem generis [and noscitur a sociis] that [the drafter] re-
 mained focused on the common attribute when it used the
 catchall phrase”).
      Last, DoDI 1320.08 provides that when the SecAF “in-
 tends not to continue larger pools of officers . . . who would
 qualify for retirement within [six] years of the date of a con-
 tinuation, the [SecAF] shall notify the USD(P&R) of the
 proposed course of action.” DoDI 1320.08 ¶ 6.3. By its
 plain and ordinary language, the SecAF has the authority
 and discretion to not continue “larger pools of officers” even
 if they would otherwise “qualify for retirement within [six]
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 12                                    BAUDE v. UNITED STATES




 years.” Id. The Majority’s “individualized decision” re-
 quirement presumes that there are “larger pools” of senior
 officers with derogatory or similar information on their rec-
 ord waiting to be non-continued. The simpler, more realis-
 tic, explanation is that the SecAF may, when the needs of
 the service require, not continue larger pools of officers, in
 keeping with his discretion and authority. See 10 U.S.C.
 § 637(a)(5) (providing guaranteed continuation only for of-
 ficers “within two years of qualifying for retirement”); Bee-
 cham v. United States, 511 U.S. 368, 372 (1994) (“The plain
 meaning that we seek to discern is the plain meaning of the
 whole [regulation or] statute, not of isolated sentences.”). 5
 Therefore, DoDI 1320.08 ¶ 6.3 accords the SecAF the dis-
 cretion to set continuation eligibility criteria, to not con-
 tinue an officer even if he or she meets that criteria in
 unusual circumstances, and to not continue large numbers
 of officers within six years of retirement. See Lengerich v.
 Dep’t of Interior, 454 F.3d 1367, 1370 (Fed. Cir. 2006)
 (“[W]e examine the text of the regulation as a whole, recon-
 ciling the section in question with sections related to it.”).
  B. The Majority’s Reading of DoDI 1320.08 ¶ 6.3 Is Con-
        trary to Statute and Congressional Intent
      The Majority’s conclusion that the SecAF does not have
 the discretion to set continuation eligibility criteria is in
 substantial tension with DoDI 1320.08’s enabling statute
 and congressional intent. Congress provided that selective
 continuation is “subject to the needs of the service,” 10
 U.S.C. § 637(a)(1), and “subject to the approval of the [Se-
 cAF],” id. § 637(c), with guaranteed continuation only for
 officers “within two years of qualifying for retirement,” id.
 § 637(a)(5). In enacting such legislation, Congress sought
 to “[s]tandardize officer-promotion procedures among the


      5  Mr. Engle does not contest that “the SecAF had the
 authority to not continue large pools of majors within six
 years of retirement[.]” Appellant’s Supp. Br. 1 n.1.
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 BAUDE v. UNITED STATES                                    13



 service” and to “tighten[] up the allowances on the number
 of officers in the higher grades.” 126 CONG. REC. H29,886
 (Nov. 17, 1980) (statement of Rep. Mitchell). Congress ex-
 pressly “intended” for the SecAF’s selective continuation
 authority “to be used sparingly and . . . primarily [as] a
 means of reducing the numbers in senior [officer] grades
 when necessary, such as during a reduction in force.” H.R.
 REP. No. 96–1462, at 27 (1980); see S. REP. No. 96–375, at
 81 (1979) (similar); see also 126 CONG. REC. H29,886 (Nov.
 17, 1980) (statement of Rep. Mitchell) (“It is the commit-
 tee’s strong desire that [majors] be continued to [a stand-
 ardized] 20 years of service as a matter of course; only in
 unusual circumstances would this authority not be fully
 utilized.”). This demonstrates that the SecAF has the au-
 thority to use selective continuation, as necessary, for re-
 ductions in force—not just for the removal of senior officers
 with derogatory information on their record. 6 It further
 shows that the SecAF has the discretion to determine who,
 outside the congressionally mandated two-year protective
 window, may be continued, according to the needs of the
 service. 7 The Secretary of Defense is charged with


     6    Department of Defense regulation and policy re-
 flects this understanding. See DoDI 1320.08 ¶¶ 4 (“It is
 [Department of Defense] policy to retain competent and ef-
 fective commissioned officers through the selective contin-
 uation process as a cost-effective means of satisfying skill
 needs in the Military Services.”), 5.2.1 (providing that the
 “Secretaries of the Military Departments shall” “[a]dminis-
 ter the policy and procedures prescribe [in DoDI 1320.08]”),
 5.2.3 (providing that the “Secretaries of the Military De-
 partments shall” “[c]onvene continuation selection boards
 based on the needs of the Military Service concerned for
 continuation of officers on the Active Duty List”).
      7   Air Force regulation and policy reflects this under-
 standing. AFI 36-2501 at ¶¶ 7.9 (providing that “[b]ased
 on the needs of the Air Force, [the SecAF] determines
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 14                                     BAUDE v. UNITED STATES




 “prescribing regulations for the administration of [10
 U.S.C. § 637],” 10 U.S.C. § 637(e), however, those regula-
 tions cannot be contrary to the express intent of Congress,
 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
 U.S. 837, 842–43 (1984) (“If the intent of Congress is clear,
 that is the end of the matter; for the court, as well as the
 agency, must give effect to the unambiguously expressed
 intent of Congress.”); see Cuozzo Speed Techs., LLC v. Lee,
 136 S. Ct. 2131, 2142 (2016) (explaining that, to the extent
 Congress grants authority to promulgate regulations,
 those regulations must be “reasonable in light of the text,
 nature, and purpose of the statute”).
   C. The Majority’s Reading of DoDI 1320.08 ¶ 6.3 Under-
   mines the Separation of Powers and Civilian Control of
                        the Military
     Preserving the SecAF’s authority and discretion to use
 selective continuation within statutory and regulatory
 bounds is important because the SecAF must be able to
 meet congressionally mandated end-strength numbers.
 Article I of the Constitution gives Congress the power to
 “raise and support Armies,” U.S. CONST. art. I, § 8, cl. 12,
 and “provide and maintain a Navy,” id. art. I, § 8, cl. 13.


 [continuation] eligibility criteria”), 7.10 (“All officers rec-
 ommended for continuation must meet a selective continu-
 ation board that will ultimately be forwarded to [the]
 SecAF for final approval”); Appx 1001 (Air Force Selective
 Continuation Fact Sheet) (explaining that “[s]elective con-
 tinuation allows the Air Force, as determined by the [Se-
 cAF], to retain twice-deferred officers in critical skills for a
 length of time determined by the [SecAF]”); Appx 1001
 (providing that the “SecAF determines the selective contin-
 uation eligibility criteria” and that it may “change from
 board to board based on current and projected needs of the
 Air Force”); Appx 1001 (providing that the “worst case sce-
 nario” is that “continuation is not offered to anyone”).
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 BAUDE v. UNITED STATES                                        15



 Each fiscal year, Congress “authorizes appropriations . . .
 for military activities of the Department of Defense,” to, in-
 ter alia, “prescribe military personnel strengths for [that]
 fiscal year.” NDAA FY11, 124 Stat. at 4137. Neither the
 Secretary of Defense nor the SecAF has the authority to
 “make or authorize an expenditure or obligation exceeding
 an amount available in an appropriation or fund for the ex-
 penditure or obligation.” 31 U.S.C. § 1341(a)(1)(A); see
 Appx 1006–07 (Air Force Policy Directive 36-32, Military
 Retirements and Separations (July 14, 1993)) (“[T]he Air
 Force must be able to meet personnel strength levels estab-
 lished in law.”). Congress’s power to mandate end-strength
 numbers is central to civilian control of the military. See
 THE FEDERALIST NO. 41, at 225 (James Madison) (E.H.
 Scott ed., 1898) (“A standing force . . . is a dangerous, at the
 same time that it may be a necessary, provision. . . . A wise
 nation will combine all these considerations; and, whilst it
 does not rashly preclude itself from any resource which
 may become essential to its safety, will exert all its pru-
 dence in diminishing both the necessity and the danger of
 resorting to one which may be inauspicious to its liber-
 ties.”). “[J]udicial deference to . . . congressional exercise of
 authority is at its apogee when legislative action under the
 congressional authority to raise and support armies and
 make rules and regulations for their governance is chal-
 lenged.” Rostker v. Goldberg, 453 U.S. 57, 70 (1981).
      Further, the “composition of [military] forces” is
 “within the purview of the Congress and the military.”
 Maier, 754 F.2d at 980. “Subject to the authority, direction,
 and control of the Secretary of Defense,” the SecAF “is re-
 sponsible for, and has the authority necessary to conduct,
 all affairs of the Department of the Air Force, including,”
 “organizing,” “supplying,” “equipping,” “administering,”
 and “maintaining” that force. 10 U.S.C. § 8013(b). “The
 complex subtle, and professional decisions as to the compo-
 sition, training, equipping, and control of a military force
 are    essentially    professional   military   judgments,
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 16                                    BAUDE v. UNITED STATES




 subject always to civilian control of the Legislative and Ex-
 ecutive Branches.” Gilligan v. Morgan, 413 U.S. 1, 10
 (1973) (emphasis in original)). It is well “settled that re-
 sponsibility for determining who is fit or unfit to serve in
 the armed services is not a judicial province.” Heisig v.
 United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983).
     The Majority “fail[s] to give appropriate weight to this
 separation of powers,” Gilligan, 413 U.S. at 11, and the
 “wide discretion [of the SecAF] to manage [the Air Force’s]
 workforce,” Allphin v. United States, 758 F.3d 1336, 1341
 (Fed. Cir. 2014). Instead, the Majority’s reading of
 DoDI 1320.08 ¶ 6.3 effectively gives the Secretary of De-
 fense the means to make an end run around Congression-
 ally mandated end-strength numbers, by giving the
 Secretary of Defense the authority to create an entitlement
 to continued employment in the military. See Maj. Op. 5
 (explaining that the SecAF “must continue” an officer
 within the Secretary of Defense’s prescribed protective
 window absent “reason not to,” such as “derogatory infor-
 mation in [his or her] personnel file”). This is contrary to
 the “power of oversight and control of military force by
 elected representatives and officials” that “underlies our
 entire constitutional system[.]” Gilligan, 413 U.S. at 11.
 This is unquestionably in derogation of the good order and
 discipline of the armed services. See Chappell v. Wallace,
 462 U.S. 296, 300 (1983) (“In the civilian life of a democracy
 many command few; in the military, however, this is re-
 versed, for military necessity makes demands on its per-
 sonnel without counterpart in civilian life.” (internal
 quotation marks and citations omitted)). There is no right
 to remain in the military, see Maier, 754 F.2d at 980 (“No
 one has an individual right, constitutional or otherwise, to
 enlist in the armed forces[.]”), and no “liberty or property
 interest” attached to an honorable discharge “sufficient to
 invoke due process rights to notice and a hearing,” Allphin,
 758 F.3d at 1343. To the extent that an individual has any
 property interest, it is only a “reasonable expectation” in
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 BAUDE v. UNITED STATES                                     17



 continued employment—there is no reasonable expectation
 that an officer who does not meet the basic requirements
 and standards set by the SecAF for continued employment
 will be selected for continuation. See Bd. of Regents of State
 Colleges v. Roth, 408 U.S. 564, 577 (1972) (“To have a prop-
 erty interest in a benefit, a person clearly must have more
 than an abstract need or desire for it. He must have more
 than a unilateral expectation of it. He must, instead, have
 a legitimate claim of entitlement to it.”). 8




     8    The Majority faults this Dissent for considering rel-
 evant legislative history and pointing out the constitu-
 tional implications of the Majority’s opinion. See Maj. Op.
 19 (characterizing this Dissent’s consideration of legisla-
 tive history in regulatory and statutory interpretation as
 “[a]dvancing new arguments on behalf of the [G]overn-
 ment”), 23 (rejecting this Dissent’s consideration of the con-
 stitutional implications of the Majority’s opinion as
 “attempts to bolster its reasoning with arguments that the
 [G]overnment has not advanced”). The Majority misappre-
 hends the nature of our judicial process. Our role is to “de-
 cide all relevant questions of law” and “interpret
 constitutional and statutory provisions” not just “when” or
 as “presented,” but “[t]o the extent necessary to [the] deci-
 sion[.]” 5 U.S.C. § 706. Whatever the Government may ar-
 gue, it cannot obviate our “province and duty . . . to say
 what the law is.” Marbury, 5 U.S. at 177–78; see Kisor v.
 Wilkie, 139 S. Ct. 2400, 2414 (2019) (explaining that a court
 must “resort[] to all the standard tools of interpretation”
 when determining whether a regulation is “genuinely am-
 biguous”). Judges are not advocates. We do not “advance”
 arguments on behalf of the parties. Our duty is to follow
 the law as we comprehend it.
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 18                                    BAUDE v. UNITED STATES




  II. The Majority Overreaches Our Standard of Review to
               Find Facts Not on the Record
      Having misread DoDI 1320.08, the Majority then finds
 that “even if the SecAF had the authority to declare any
 circumstance to be sufficiently unusual to justify rewriting
 other aspects of the regulation . . . there simply were no
 ‘unusual circumstances’ identified here.” Maj. Op. 20. Spe-
 cifically, the Majority finds, first, that “there were no ‘unu-
 sual circumstances’ akin to derogatory information in [Mr.]
 Engle’s file that would have justified his non-continuation,”
 id., and second, that the SecAF found no broader unusual
 circumstances because neither “[t]he SecAF’s notice to the
 USD(P&R),” nor his “memorandum of instructions” to the
 selective continuation board “mention[s] . . . unusual cir-
 cumstances of any kind,” id. (citing Appx 1005; Appx 33).
 In so doing, the Majority overreaches our standard of re-
 view.
      “We review a decision of the Court of Federal Claims
 granting or denying a motion for judgment on the adminis-
 trative record without deference.” Barnick v. United
 States, 591 F.3d 1372, 1377 (Fed. Cir. 2010) (citation omit-
 ted). As such, “we apply the same standard of review” as
 the Court of Federal Claims, and “will not disturb the deci-
 sion of the AFBCMR unless it is arbitrary, capricious, con-
 trary to law, or unsupported by substantial evidence.” Id.
 (citation omitted).
      First, the Majority finds, based on what it says is a
 Government concession, that “there were no ‘unusual cir-
 cumstances’ akin to derogatory information in [Mr.]
 Engle’s file that would have justified his non-continuation.”
 Maj. Op. 20 (citing Oral Arg. at 20:42–51, http://oralargu-
 ments.cafc.uscourts.gov/default.aspx?fl=2018-2038.mp3
 (“We are unaware of any derogatory information or any de-
 cision regarding [Mr.] Engle that was personal in nature,
 that is not what the record here shows.”)); see id. 8 (stating
 that, if the SecAF had not changed the continuation
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 BAUDE v. UNITED STATES                                     19



 criteria Mr. Engle “almost certainly would have been con-
 tinued”). This may be true; however, such a finding is im-
 proper and outside our role on appeal. See Camp v. Pitts,
 411 U.S. 138, 142 (1973) (“[T]he focal point for judicial re-
 view should be the administrative record already in exist-
 ence, not some new record made initially in the reviewing
 court.”). There is simply no record evidence to support this
 finding. This is unsurprising: “The proceedings of a selec-
 tion board convened under [10 U.S.C. § 611] may not be
 disclosed to any person not a member of the board, except
 as authorized to process the report of the board.” 10 U.S.C.
 § 613a(a).
      Second, the Majority finds that the “SecAF fail[ed] to
 identify any [unusual circumstance]” in his notice to the
 USD(P&R) or instructions to the selective continuation
 board, rendering the AFBCMR’s affirmance unsupported
 by substantial evidence and the Government’s arguments
 post-hoc rationalizations. Maj. Op. 22; see SAppx 115
 (AFBCMR concluding that Petitioners had submitted “in-
 sufficient relevant evidence” to “demonstrate . . . an error
 or injustice” and that “the explanation provided by [the Air
 Force] that the [SecAF] had a reasonable basis to pursue
 the course of action he determined necessary”). The Major-
 ity concludes that this “alone should end the inquiry.” Maj.
 Op. 21 (citing SEC v. Chenery Corp., 318 U.S. 80, 81
 (1943)). The Majority mistakes an incomplete record for
 definitive proof of a negative claim. Specifically, before the
 Court of Federal Claims, Mr. Engle and the other Petition-
 ers sought to compel the Government to supplement the
 administrative record with the evidence the Majority now
 seeks. See SAppx 147 (summarizing Petitioners’ request
 that the Government “[p]rovide details . . . of the infor-
 mation [the] SecAF briefed to the [USD(P&R)] on Janu-
 ary 24, 2011[,] regarding the SecAF’s intent to not
 selectively continue certain officers,” “of the information
 the Air Force briefed to [the] USD(P&R) and [c]ongres-
 sional subcommittee staff members on January 12, 13, and
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 20                                    BAUDE v. UNITED STATES




 24, 2011[,] regarding [the] SecAF’s intent to not continue
 certain officers,” and “of the information the Air Force
 briefed to [c]ongressional subcommittee staff members on
 March 17, 2011[,] and May 11, 2011[,] regarding the Se-
 cAF’s intent to not selectively continue certain officers,” in-
 cluding “copies of the brief[s] provided, briefing materials,
 transcripts, and any and all correspondence”). The Court
 of Federal Claims, however, denied this request, because
 Mr. Engle and the other Petitioners had “waived [their]
 supplementation rights” by failing to “identify this evi-
 dence [as] missing during [administrative] review,” despite
 having been before the [AFBCMR] twice.” SAppx 149. Mr.
 Engle does not contest this determination, see generally
 Appellant’s Br; Appellant’s Supp. Br., nor does the Major-
 ity address it, see generally Maj. Op. It is, therefore, undis-
 puted that the Court of Federal Claims acted within its
 discretion when it denied Mr. Engle and other Petitioners’
 request. See Barnick, 591 F.3d at 1382 (“[We] review[] ev-
 identiary rulings [of the Court of Federal Claims] under an
 abuse of discretion standard.” (citation omitted)); id. at
 1382 (“[W]here evidence could have been submitted to a
 corrections board and was not, the evidence is properly ex-
 cluded by the Court of Federal Claims.” (citation omit-
 ted)). 9
     Before the Court of Federal Claims, the burden was on
 Mr. Engle to establish “prejudicial error.” 5 U.S.C. § 706;
 see 10 U.S.C. § 1558(f)(2). He did not. Rather, he conceded
 that the “SecAF was only required to notify [the]
 USD(P&R) of his intent to [not selectively continue larger



      9  Even if such details of the SecAF’s decision were on
 the record, it is unclear what the Majority could do with
 them. See Adkins v. United States, 68 F.3d 1317, 1322
 (Fed. Cir. 1995) (“The merits of a service secretary’s deci-
 sion regarding military affairs are unquestionably beyond
 the competence of the judiciary to review.”).
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 BAUDE v. UNITED STATES                                      21



 pools of officers].” SAppx 150. He nonetheless now argues
 this absence of evidence to his advantage. See Appellant’s
 Supp. Br. 7 (arguing that the “SecAF did not purport to
 identify any ‘unusual circumstances’ justifying the six-to-
 five-year change when making the determination not to se-
 lectively continue Mr. Engle,” and “[t]hat failure alone is
 error that requires reversal[.]”). His argument, in addition
 to being improper, is without merit. See Dodson v. U.S.
 Gov’t, Dep’t of Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993)
 (“[M]ilitary administrators are presumed to act lawfully
 and in good faith like other public officers, and the military
 is entitled to substantial deference in the governance of its
 affairs.”); see also Biddle v. United States, 186 Ct. Cl. 87,
 104 (1968) (providing for a “presumption in favor of the va-
 lidity” of official military acts, such that “in the absence of
 any evidence to the contrary, it must be presumed that the
 [secretary] performed [his] official duties properly”).
                          CONCLUSION
      The plain language of DoDI 1320.08 ¶ 6.3, read in its
 statutory and regulatory context, aligned with Congres-
 sional intent and Constitutional principles, supports the
 conclusion that the SecAF has the authority and discretion
 to narrow continuation eligibility criteria and not continue
 large pools of officers within six years of retirement eligi-
 bility. The Majority opinion misreads DoDI 1320.08 ¶ 6.3,
 and, in so doing, erodes civilian control of the military and
 the good order and discipline of the armed services. In es-
 sence, what this Court is doing today is restricting the abil-
 ity of the armed services to respond with fiscal agility to a
 continuously changing and complex global environment.
 That is clearly contrary to the Constitution, and the law,
 and to Congressional intent.
     For these reasons, I respectfully dissent.
