       In the United States Court of Federal Claims
                                     No. 11-742C
                               (Filed October 18, 2013)


************************************
                                    *
TANYA L. TOWNE,                     *
                                    *
                  Plaintiff,        *
                                    *                     10 U.S.C. § 1212(c)(1)(A),
            v.                      *                     “combat-related operations”,
                                    *                     Chevron deference.
THE UNITED STATES,                  *
                                    *
                  Defendant.        *
                                    *
*************************************

                              OPINION AND ORDER

       This is a military disability claim brought by Plaintiff, Tanya L. Towne
(“Towne”) against the United States for enhanced severance pay which was allegedly
wrongfully and unlawfully withheld by the Department of the Army (“Army”). This case
was originally assigned to Judge George W. Miller, but it was reassigned to the
undersigned on July 26, 2013.

        Currently pending before the Court are cross-motions for judgment on the
administrative record. Likewise pending is Plaintiff’s motion for leave to proceed in
forma pauperis. For the reasons that follow, the Government’s motion for judgment on
the administrative record is GRANTED and Towne’s cross-motion is DENIED. Towne’s
motion for leave to proceed in forma pauperis is GRANTED, in part, with respect to the
filings pertaining to the cross-motions and DENIED in all other respects.

       I.     Background1

              a. Towne’s Service and Injury


1
  Portions of this background have already been established in Judge Miller’s Opinion
and Order dated October 25, 2012. For purposes of consistency and ease of reading, this
Court repeats much of the background established in Judge Miller’s Opinion and
supplements it with the additional details established during remand to the Army Board
for Correction of Military Records (“ABCMR”). Where this Opinion repeats facts
established in Judge Miller’s Opinion, the Court omits citations to the administrative
record.
                                           1
         Towne began her military service when she enlisted in the New York Army
National Guard (“National Guard”) on March 17, 1993. Towne injured her back in the
line of duty while lifting and moving a computer on August 17, 2000. On June 4, 2004,
Towne suffered another back injury when she fell in full body armor through a window
to the floor approximately eight feet below during a building-clearing exercise as training
for active duty service in Operation Iraqi Freedom. This training took place in Fort
Drum, New York. Towne was then deployed to Iraq and Kuwait for ten months in 2005.
During that time, she was required to wear body armor, which aggravated her back.
Effective July 16, 2009, Towne was honorably discharged from the National Guard.

               b. Calculation of Military Disability Severance Pay

        Certain disabled former members of the armed forces are entitled to severance
pay after they are discharged from service. 10 U.S.C. §1203; see generally id. at §§1201-
1222. Typically, a disabled service member’s severance pay is determined by
multiplying twice the member’s monthly pay by the number of years the member has
served. Id. at §1212(a). The Wounded Warrior Act (the “WWA”), which became Title
XVI of the National Defense Authorization Act of 2008 (the “NDAA 2008”), amended
§1212 by adding the current subsection (c). National Defense Authorization Act for
Fiscal Year 2008, Pub. L. No. 110-181, § 1646(a), 122 Stat. 3, 472 (2008). The resulting
law ensures that disabled service members qualify for certain minimum severance
payments, even if their service time would otherwise have been insufficient to qualify
them for those payments under the general formula. 10 U.S.C. § 1212(c). All service
members are now credited with at least three years of service for the purpose of
calculating disability severance payments. Id. at § 1212(c)(1)(B). Additionally, service
members whose disability was either incurred “in line of duty in a combat zone … or
incurred during the performance of duty in combat-related operations as designated by
the Secretary of Defense” (the “Secretary”) are credited with at least six years of service
time. Id. at § 1212(c)(1)(A) (emphasis added).

       The Under Secretary of Defense for Personnel and Readiness issued a Directive-
Type Memorandum (the “DTM”) on March 13, 2008, that, inter alia, defined the phrase
“incurred during performance of duty in combat-related operations” in § 1212(c)(1)(A).
David S.C. Chu, Office of the Under Sec’y of Def. for Pers. and Readiness, Revised and
New Policies to Implement the National Defense Authorization Act (NDAA) for Fiscal
Year 2008, at 4 (2008). The DTM amended the Department of Defense Instruction
(“DoDI”) 1332.38 to add that “determination of ‘incurred during performance of duty in
combat-related operations’ shall be made consistent with criteria set forth in paragraph
E3.P5.1.2.” Id. Paragraph E3.P5.1.2 reads:

           E3.P5.1.2. Armed conflict (5 U.S.C. 3502, 5532, 6303)(Reference
           (c)). The physical disability is a disease or injury incurred in the
           line of duty as a direct result of armed conflict. The fact that a
           member may have incurred a disability during a period of war or in
           an area of armed conflict, or while participating in combat
           operations is not sufficient to support this finding. There must be a

                                             2
           definite causal relationship between the armed conflict and the
           resulting unfitting disability.

           E3.P5.1.2.1. Armed conflict includes a war, expedition, occupation of
           an area or territory, battle, skirmish, raid, invasion, rebellion,
           insurrection, guerrilla action, riot, or any other action in which
           Service members are engaged with a hostile or belligerent nation,
           faction, force, or terrorists.

           E3.P5.1.2.2. Armed conflict may also include such situations as
           incidents involving a member while interned as a prisoner of war or
           while detained against his or her will in custody of a hostile or
           belligerent force or while escaping or attempting to escape from such
           confinement, prisoner of war, or detained status.

Department of Defense, Instruction No. 1332.38, at 35 (1996). Paragraph E3.P5.1.2 of
DoDI 1332.38 had previously interpreted the statutory language “as a direct result of
armed conflict.” Because the DTM relies on paragraph E3.P5.1.2 to also interpret
“combat-related operations,” the DTM effectively defines “in combat-related operations”
to mean “as a direct result of armed conflict.”

              c. Procedural History

       After Towne returned from Iraq, she was referred to an informal Physical
Evaluation Board (“PEB”) that reviewed her back injury, found her unfit for service, and
made several findings related to her disability severance benefits. Blocks 10(C) and
10(D) of the PEB’s report included the following recommended findings:

           C. DISABILITY DID RESULT FROM A COMBAT RELATED
           INJURY AS DEFINED IN 26 USC 104 AND FOR PURPOSES
           OF 10 USC 10216(G).2

           D. DISABILITY WAS NOT INCURRED IN A COMBAT ZONE
           OR INCURRED DURING THE PERFORMANCE OF DUTY IN
           COMBAT-RELATED OPERATIONS AS DESIGNATED BY
           THE SECRETARY OF DEFENSE (NDAA 2008 [§] 1646).3

The Army Physical Disability Agency (“APDA”) adopted the PEB’s findings. Adhering
to the PEB’s finding in Block 10(D) of its report, the APDA did not credit Towne with


2
  The PEB’s finding that Towne’s injury was combat-related allowed Towne to exclude
her disability severance payments from gross income for tax purposes. See 26 U.S.C. §
101(a)(4), (b)(2)(C).
3
  “NDAA 2008 § 1646” refers to the section of the WWA in which Congress amended 10
U.S.C. § 1212 to add the current subsection (c), which contains the “combat-related
operations” language that is in dispute in this case. See § 1212(c)(1)(A).
                                             3
the six year of service time § 1212(c)(1)(A) might otherwise have allowed.4 The APDA
instead credited Towne with only her actual service time of four years, eight months, and
nine days. Based on the PEB’s finding in Block 10(C) of its report, however, APDA
agreed that Towne’s disability resulted from a combat-related injury for purposes of 26
U.S.C. §104. Towne’s counsel contacted the APDA to request that the APDA reconcile
its determinations that her injury was a combat-related injury but that it does not occur
during combat-related operations. The APDA responded that the DoD’s definition of
“combat-related operations” was different from the definition of “combat-related injury,”
and thus the APDA declined to modify the PEB’s findings.

        On January 6, 2011, Towne filed an application with the ABCMR. Towne
argued, as she does here, that the DTM is invalid because it conflicts with Congress’s
intended meaning of “combat-related operations” in the WWA and the NDAA 2008 as it
interprets “combat-related operations” §1212(c)(1)(A) more narrowly than Congress
intended by excluding conditions simulating war. Therefore, Towne argued, she should
be credited with six years of service for purposes of calculating her disability severance
pay. The ABCMR denied Towne’s application on October 4, 2011. In its decision, the
ABCMR applied the DTM without responding to Towne’s argument that the DTM is
contrary to the statute it purports to interpret.

               d. Present Action

        Following denial of her ABCMR application, Towne filed her Complaint in this
Court. The Complaint recites the facts described above and argues, as Towne did before
the ABCMR, that Congress intended the DoD’s interpretation of “combat-related
operations” to include training under conditions simulating war. Towne cites as evidence
of Congress’s intent (a) definitions of other phrases in the WWA, elsewhere in the
NDAA 2008, and in other statutes that include the term “combat-related”; (b) the need to
avoid an interpretation that renders the “combat-related operations” prong of §
1212(c)(1)(A) superfluous; (c) the need to avoid an interpretation of “combat-related”
that renders meaningless the word “related”; and (d) legislative history of the WWA.
Towne points specifically to 10 U.S.C. § 1413a(e) and 26 U.S.C. § 104(b)(3), in which
Congress defined “combat-related disability” and “combat-related injury,” respectively.
In both cases, Congress specified that injuries sustained under “conditions simulating
war” are within the scope of the definitions.5 § 1413a(e)(2)(C); § 104(b)(3)(A)(iii).

4
  Plaintiff remained eligible for severance pay based on the three-year minimum provided
by 10 U.S.C. § 1212(c)(1)(B). That provision did not provide Towne any additional
benefit, however, because her actual service time was greater than three years.
5
  Congress has referenced repeatedly the definition of “combat-related disabilities” set
forth in § 1413a(e), namely, in 5 U.S.C. § 6333(b)(2)(C)(i) (exemption of members who
have sustained a combat-related disability from exhaustion of annual and sick leave
before using transferred leave); 10 U.S.C. §§ 1074i(d)(3) (travel expense reimbursement
for care of combat-related disabilities), 1175a(h)(2)(B) (no reduction in combat-related
disability pay due to receipt of additional voluntary separation benefits), 1414(d)(1)
(retirement pay cannot be combined with combat-related disability pay), 10216(g)(1)
                                            4
Likewise, in paragraph E3.P5.2.2 of DoDI 1332.38 relating to tax benefits under 26
U.S.C. § 104, the DoD defines “combat-related” to include disabilities resulting “[u]nder
conditions simulating war.” As relief, Towne requests the additional disability severance
pay she would have received upon a determination that her disability occurred during the
performance of duty in combat-related operations. See 10 U.S.C. § 1212(c)(1)(A).

        The Government filed a motion for judgment on the administrative record
pursuant to Rule 52.1 of the Rules of the Court of Federal Claims (“RCFC”). For each
piece of evidence Towne cites, the Government argues that such evidence is not
dispositive of Congress’s intent. In short, the Government argues that none of Towne’s
evidence is sufficient to demonstrate Congress’s intent, and therefore the definition of
“combat-related operations” is “entirely up to the discretion of the Secretary of Defense.”
Towne responded by filing a cross-motion for judgment on the administrative record.

               e. Judge Miller’s Opinion and Remand to the ABCMR

        On October 25, 2012, Judge Miller issued an Opinion and Order deferring his
ruling on both the Government’s motion and Towne’s. In that Opinion, Judge Miller
determined that, “[a]ssuming the DTM was not issued arbitrarily or capriciously, the
Court would utilize the Chevron6 framework to interpret §1212(c)(1)(A) and the DTM.”
(Docket No. 16 at 7). However, Judge Miller concluded that he could not ascertain the
basis for the DTM and, therefore, he could not determine whether the DTM was arbitrary
or capricious. In order to determine the basis for the DoD’s definition of “combat-related
operations,” Judge Miller remanded the case to the ABCMR with instructions that the
ABCMR provide the DoD “an opportunity to explain the reasons for its interpretation of
‘combat-related operations’ in the DTM, particularly its decision to exclude ‘conditions
simulating war’ from its definition of ‘combat-related operations.’” Id. at 10.

        On February 15, 2013, the DoD issued an advisory opinion (“DoD Opinion”)
explaining its interpretation of §1212(c)(1)(A) and why “combat-related operations” do
not include injuries incurred during service training. See Supplement to the
Administrative Record (Docket No. 23-2) (“Supp. AR”), at 25-27. The DoD provided a
rather detailed explanation of its decision to exclude service training from its definition of
“combat-related operations.”

        On April 16, 2013, the ABCMR again heard Towne’s case, this time with the
benefit of the DoD Opinion. The ABCMR concluded that the DoD had provided a
“reasonable interpretation” of §1212(c)(1)(A). See Supp. AR at 11-12. Based on its
review, the ABCMR affirmed its previous decision to deny Towne relief. Id. The details
of both the DoD Opinion and the ABCMR’s decision are addressed below.



(retaining certain former dual-status military technicians with combat-related
disabilities); and 37 U.S.C. § 303a(e)(3)(E) (entitlement of members with combat-related
injuries to previously earned or paid special pay).
6
  See infra, Sec. III.a.
                                              5
       The parties informed the Court of the ABCMR’s decision and Judge Miller
ordered supplemental briefing in light of the new ABCMR. Briefing was concluded on
July 19, 2013. Both parties filed their supplemental briefs on the same day, so the
arguments presented in each are not necessarily responsive to the opposing side’s
arguments. The case was then reassigned to the undersigned on July 26, 2013.

                 f. The DoD Opinion and ABCMR Decision

         After a brief discussion of NDAA 2008, the DoD Opinion describes the
considerations that went into the DoD’s definition of “combat-related operations.” The
DoD Opinion explains that DoD’s analysis started at the DoD Dictionary of Military
Terms (the “Dictionary”).7 The Dictionary defines “operations” as “[a] series of tactical
actions with a common purpose or unifying theme” or “[a] military action or the carrying
out of strategic, operational, tactical, service, training or administrative military mission.”
(emphasis added). These definitions are derived from Joint Publication (“JP”) documents
that set forth joint doctrine to govern activities and performance of the Armed Forces of
the United States in joint operations. See Supp. AR at 26.

       The DoD Opinion observes that JP 3, from which the second definition is derived,
groups the term “Operations” into three areas. These areas are:

          (1) Military Engagement, Security Cooperation, and Deterence – these are
              ongoing routine activities that establish, shape, maintain, and refine relations
              with other nations and domestic civil authorities (e.g., state governors or local
              law enforcement);
          (2) Crisis Response and Limited Contingency Operations – these can be small-
              scale, limited duration operations such as strikes, raids, and peace
              enforcement, which might include combat depending on the circumstances;
              [and]
          (3) Major Operations and Campaigns – these are extended-duration, large-scale
              operations that usually involve combat.

See Supp. AR at 26. Thus, the DoD Opinion states that operations under the first
grouping do not qualify because they are not combat-related. The DoD concluded that
“DoD activities[,] such as service training, would not qualify because it is neither an
operation nor combat-related.” Id.

        The DoD’s construction centers around an ideal that it calls “the tip of the spear.”
The DoD Opinion states that it intended its definition to secure entitlement to enhanced
severance pay to service members “at the tip of the spear,” i.e., “those service members
taking the greatest risks and waging the war at risk of death or serious injury.” Id. The
DoD’s conclusion to provide enhanced payment to those “at the tip of the spear” was
bolstered by other sections of NDAA 2008 (§§ 511a, 641, 1632, 1675), all of which
apply to “combat-related disabilit[ies]” and all of which cross-reference the statutory

7
    The Dictionary is available at http://www.dtic.mil/doctrine/dod_dictionary/.
                                                6
definition of “combat-related disability” in 10 U.S.C. § 1413a. The DoD Opinion notes
that combat-related disabilities under that definition can be incurred during activities
other than “combat-related operations,” such that “‘combat-related operations’
contemplated something more, and that the ‘enhanced’ severance pay for combat-related
operations would be a ‘special’ benefit for those injured at the ‘tip of the spear.’” Id.

        Next, the DoD Opinion cites the provisions of DoDI 1332.38, quoted above, that
define “armed conflict.” The DoD Opinion explains that the DoD intended to limit its
definition of “combat-related operations” to disability or injury incurred in the line of
duty as a direct result of armed conflict. Such a definition was deemed to ensure that
service members at the “tip of the spear” would receive enhanced benefits.

        The ABCMR Decision is largely a summary of the DoD Opinion. It recognized
Towne’s arguments, which generally mirror the same arguments she makes at this Court.
The ABCMR Decision summarily concluded that the DoD “has articulated a reasonable
interpretation of [combat-related operations].” Supp. AR at 11. Equally summarily, the
ABCMR rejected Towne’s arguments. It affirmed its previous decision to deny Towne
relief.

       II.     Standard of Review

         A motion for judgment upon the administrative record is governed by RCFC 52.1.
In considering such motions, a court asks “whether, given all the disputed and undisputed
facts, a party has met its burden of proof based on the evidence in the record.” A&D Fire
Protection, Inc. v. United States, 72 Fed. Cl. 126, 131 (2006) (Bush, J.) (citing Bannum,
Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005)). A reviewing court must
make fact findings where necessary. Bannum, 404 F.3d at 1356. As such, the resolution
of cross-motions brought pursuant to RCFC 52.1 is akin to an expedited trial on the paper
record. Id. The precise standards and criteria governing the Court’s review may vary
depending upon the specific law to be applied to a particular case. See RCFC 52.1 Rules
Committee Note (2006).

       III.    Discussion

        Essentially, the dispute in this case boils down to whether or not the DoD’s
regulation pertaining to “combat-related operations” is arbitrary and capricious. For this
reason, the Court first discusses the standard under which the regulation is to be
reviewed. Then, it turns to the arguments over the DoD’s construction of the statute.
Finally, it addresses Towne’s argument that the DTM had expired, and was therefore not
controlling, when her claim was before the ABCMR.

               a. The Court Reviews the DoD’s Regulations under the Chevron
                  Framework.

        Judge Miller stated in his Opinion that, “[a]ssuming the DTM was not issued
arbitrarily or capriciously, the Court would utilize the Chevron framework to interpret

                                             7
§1212(c)(1)(A) and the DTM.” (Docket No. 16 at 7). The Chevron framework was
established by the Supreme Court in Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837
(1984). There, the Supreme Court observed that, “[w]hen a court reviews an agency’s
construction of the statute which it administers, it is confronted with two questions.” Id.
at 842. The Supreme Court instructed courts to consider first “whether Congress has
directly spoken to the precise question at issue.” Id. If Congress has done so, the Court
(and the agency) must give effect to the “unambiguously expressed intent of Congress.”
Id. at 843. However, when Congress has not unambiguously expressed its intent, a court
should “not simply impose its own construction on the statute.” Id.

        These ambiguous statutes give rise to the second question identified in Chevron:
whether the agency’s construction is based on a permissible construction of the statute.
Id. “The power of an administrative agency to administer a congressionally created …
program necessarily requires the formulation of policy and the making of rules to fill any
gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231
(1974). Where Congress has explicitly delegated authority to an agency, the agency’s
regulations “are given controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute.” Chevron, 467 U.S. at 844.

               b. Congress has not “directly spoken to the precise question at issue.”

       The “precise question at issue” here is whether Congress has spoken to the
meaning of “combat-related operations.” The lion’s share of the parties’ briefing is
dedicated to parsing this phrase and to applying canons of statutory construction to it.
Unsurprisingly, the parties sometimes apply different canons and arrive at diametrically
opposed conclusions.8

         Despite Towne’s best arguments, Congress has clearly not provided a definition
of “combat-related operations.” In arriving at this conclusion, the Court begins with the
Supreme Court’s admonition that, “in interpreting a statute a court should always turn
first to one, cardinal canon before all others. We have stated time and again that courts
must presume that a legislature says in a statute what it means and means in a statute
what it says there.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992). In
this case, this canon moves the ball a long way for the Government.

       What the statute says is plain: Congress has delegated to the Secretary of Defense
the duty of defining the scope of “combat-related operations.” See 10 U.S.C. §
1212(c)(1)(A) (providing for enhanced severance pay for disabilities “incurred during the
performance of duty in combat-related operations as designated by the Secretary of
Defense.”). To the extent that Congress has “directly spoken to the precise question” of

8
  The Court calls this outcome unsurprising because there are a number of canons and
“counter-canons” of statutory construction which, if applied, will often lead to opposite
interpretations of the same statute. See Karl N. Llewellyn, Remarks on the Theory of
Appellate Decision and the Rules of Canons About How Statutes are to be Construed, 3
Vand. L. Rev. 395 (1950), republished with permission in 5 Green Bag 297, 302 (2002).
                                             8
what constitutes a “combat-related operation,” it has spoken only so far as to delegate
authority to the Secretary of Defense.

       Although not put expressly in these terms, one undercurrent to Towne’s entire
argument is that Congress has repeatedly used the phrase “combat-related disability”,
which is defined in 10 U.S.C. §1413a. That section’s definition includes “the
performance of duty under conditions simulating war,” § 1413a(e)(2)(C), which
encompasses training exercises. Notably, Congress has referenced this definition of
“combat-related disability” in a number of other statutes. See, e.g., 5 U.S.C. §
6333(b)(2)(C)(i) (exemption of members who have sustained a combat-related disability
from exhaustion of annual and sick leave before using transferred leave); 10 U.S.C. §§
1074i(d)(3) (travel expense reimbursement for care of combat-related disabilities),
1175a(h)(2)(B) (no reduction in combat-related disability pay due to receipt of additional
voluntary separation benefits), 1414(d)(1) (retirement pay cannot be combined with
combat-related disability pay), 10216(g)(1) (retaining certain former dual-status military
technicians with combat-related disabilities); and 37 U.S.C. §303a(e)(3)(E) (entitlement
of members with combat-related injuries to previously earned or paid special pay).

         Despite these numerous references, the Court cannot conclude that Congress has
spoken to the specific issue of what constitutes “combat-related operations.” First, unlike
all of the other statutes, § 1212(c)(1)(A) does not cross-reference §1413a. Second, unlike
all of the other statutes, § 1212(c)(1)(A) does expressly delegate authority to the
Secretary of Defense to designate what constitutes a “combat-related operation.” Thus,
the clear intent of Congress was to leave to the Secretary the authority to define that term.
The Court, therefore, must proceed to the second Chevron question.

               c. The DoD’s construction is not arbitrary, capricious, or manifestly
                  contrary to the statute.

        While the first Chevron question can be dealt with in a summary manner, the
second is much more difficult. Here, the question becomes whether the Secretary’s
definition is “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467
U.S. at 844. The Court concludes that it is not. Because Towne has presented several
extensive arguments in support of her assertion that the DoD Opinion is arbitrary or
capricious, the Court addresses each argument separately.

                       i. The DoD’s Interpretation of “Combat-Related Operations”
                          was not Contrary to Ordinary Rules of Statutory Construction

        Towne first claims that by interpreting “combat-related operations” to mean
“armed conflict,” the DoD failed to follow ordinary rules of statutory construction.
Towne takes issue with the DoD’s conclusion that the absence of a cross-reference in §
1212(c)(1)(A) to § 1413a’s definition of “combat-related disability” must mean that a
“combat-related operation” means something else. Towne concludes that the DoD, and
the ABCMR, must have applied the canon that holds that when “Congress includes
particular language in one section of a statute but omits it in another section of the same

                                             9
Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983).
Instead, Towne argues that the correct reading of the statute requires that the DoD
recognize that the term “combat-related” is the same in both statutes.

        The Court finds that the DoD’s interpretation of the statute was not contrary to
ordinary rules of statutory construction. As Towne herself recognizes, Russello speaks
directly to the issue: the “combat-related operations” provision does not contain the
cross-reference that other “combat-related” provisions do, and the Court cannot ignore
that fact. “[W]here there is an absence of any explicit connector between the two
statutes, the Supreme Court has declined to read a definition from one statute into
another, finding the absence of a cross-reference to be revealing.” In re Princo Corp.,
486 F.3d 1365, 1368 (Fed. Cir. 2007) (internal quotations omitted) (citing United States
v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 220 (1996)). “Even when
the definition appears in a single statute, our sister courts have also held that definitions
limited to one section should not be applied to another section.” Princo, 486 F.3d at
1368.

        The language of the statute also undermines Towne’s position: She claims that the
definition of “combat-related disability” must be used to inform the interpretation of
“combat-related operations,” but the term “disability” is itself used in § 1212(c)(1)(A):
the enhancement is applied to members “separated from the armed forces for a disability
incurred in line of duty in a combat zone (as designated by the Secretary of Defense for
purposes of this subsection) or incurred during the performance of duty in combat-related
operations as designated by the Secretary of Defense.” If, as Towne argues, “Congress
plainly knew how to deploy adjectives,” and it intended to grant enhanced payments to
members suffering from combat-related disabilities, it could have easily said that
members are entitled to enhanced payments if they were “separated from the armed
forces for a combat-related disability.” It did not do so.

        There is, however, a more fundamental, if not so obvious, point to be made with
respect to these statutes. The relevant term of art is not “combat-related.” Instead, the
term of art relevant to this case is “combat-related operations.” This distinction is borne
out by one factor which Towne conveniently ignores: the “combat-related operations”
provision is the only “combat-related” law cited by the parties in which Congress
explicitly granted authority to the Secretary to define. It is not unreasonable to conclude,
as the DoD did, that this unique factor sets the “combat-related operations” language
apart from other combat-related provisions.

        These unique factors—different language and an express delegation of
authority—tell the Court that there is something different about the “combat-related
operations” provision. Although Towne’s explanation is reasonable, the Court cannot
say that the DoD’s interpretation is unreasonable. This statutory argument is not
persuasive.




                                             10
                      ii. The Term “Combat-Related” in Different Provisions of the
                          WWA Can Be Interpreted Differently

        Towne next argues that because the term “combat-related” was used in two
provisions of the WWA, it must be construed the same way in each provision. Towne
relies upon another canon of statutory interpretation which holds that “identical words
used in different parts of the same act are intended to have the same meaning.” See
Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932); see also Taniguchi
v. Kan Pac. Saipan, Ltd., --- U.S. ---, 132 S.Ct. 1997, 2004-05 (2012) (“[I]t is a normal
rule of statutory construction that identical words used in different parts of the same act
are intended to have the same meaning.”) (internal quotations omitted). Because the
WWA included two provisions which use the term “combat-related,” Towne argues that
they must be construed the same way.

        As the Court just stated, the obvious implication of the unique language and
delegation is that Congress intended “combat-related operations” to be construed
separately from “combat-related disability.” The DoD’s use of the definition of “combat-
related disability” in 10 U.S.C. § 1413a as instructive, but not controlling, is in accord
with the cardinal canon under these circumstances. The Court cannot, therefore,
conclude that the DoD interpretation is arbitrary or capricious based on this argument.

                     iii. The Term “Combat-Related Operations” is not Used in Other
                          Statutes, so the Doctrine of In Pari Materia Does Not Apply

        Towne next argues that the term “combat-related” must be construed following
the canon of in pari materia, which directs courts to interpret statutes with similar
language, and which address the same general subject matter, “as if they were one law.”
See Erlenbaugh v. United States, 409 U.S. 239, 243-44 (1972) (citations omitted). In
support of her position, Towne observes that Congress has applied a similar definition to
“combat-related” terms other than “combat-related disability.” See 26 U.S.C. § 104(b)(3)
(defining “combat-related injury”). The definition of “combat-related injury” in 26
U.S.C. § 104(b)(3) mirrors the definition contained in 10 U.S.C. § 1413a.

        Once again, the Court is not persuaded by Towne’s argument. Her argument
continues to ignore the very real differences between § 1212(c)(1)(A) and other “combat-
related” statutory provisions. This argument is not sufficient to show that the DoD
interpretation is contrary to law.

                      iv. The WWA is Not Made Incoherent by Interpreting “Combat-
                          Related Operations” Differently than “Combat-Related
                          Disability”

        Towne next argues that the DoD failed to consider “combat-related operations” in
the context of the WWA. Specifically, she asserts that the DoD failed to recognize that
the WWA is a “coherent and consistent statutory scheme to enhance benefits for all
injured members of the armed forces, regardless of the court of their injuries.” (Docket

                                            11
No. 25 at 9). The Government counters this point directly in its supplemental brief,
arguing instead that the DoD did adequately consider the context of the provision in the
WWA.

         As this Court has already established, the failure to apply a single definition to
two different but similar statutory provisions is not in and of itself incorrect. See Princo,
486 F.3d at 1368. Thus, the DoD’s decision to interpret two similar-sounding provisions
differently is not itself legal error. The fact that “combat-related” appears twice in the
statute is not persuasive on its own.

        Towne also argues that the DoD’s narrow interpretation of “combat-related
operations” undermines the WWA’s purpose of providing enhanced benefits to all
injured members of the armed forces. She claims that construing that phrase similarly to
“combat-related disability” harmonizes the provisions of the WWA. The Government, in
its supplemental brief, observes that its definitions does not create an inconsistent statute.

        The Government’s position here is reasonable. Towne cites the Congressional
Record as evidence of her position, noting that Senator Levin observed that “[t]his wide-
ranging legislation will improve the provision of health care and benefits to injured
military personnel and make the system much more efficient as well.” See 153 Cong.
Rec. S9858 (daily ed. July 25, 2007). That statement does not require, as Towne seems
to argue, that all injured members of the armed forces are entitled to enhanced benefits.
Instead, it indicates Congress’s desire to improve benefits and streamline the system.

        Even with that point in mind, the DoD’s narrow interpretation of “combat-related
operations,” does not undermine the statutory scheme embodied in the WWA. 10 U.S.C.
§ 1212(c)(1) contains two provisions, the second of which provides that all disabled
members are entitled to a calculation based on a minimum of three years of service. The
DoD’s interpretation of “combat-related operations” does not dictate a result that some
injured service members are unable to obtain disability severance payments; instead, it
means that a service member is only entitled to enhanced payments in certain extenuating
circumstances. This result does not undermine the purposes of the WWA.

                       v. The DoD’s Interpretation Does Not Render Meaningless the
                          “Combat-Related Operations” Prong of § 1212(c)(1)(A)

        Towne next relies upon the canon that no statute should be construed in a manner
than would render any part of it “superfluous, void, or insignificant.” See TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001). Towne argues that limiting the provision of enhanced
benefits to injuries that arise only from “armed combat,” the DoD has rendered
meaningless the word “related” in “combat-related.” As she states it, the “DoD’s
interpretation of the statutory language rendered insignificant the combat-related
operations prong of [the statute], because any disability incurred as a result of armed
conflict will typically be incurred in a combat zone and will fall within the combat zone
prong of [the statute].” (Docket No. 25 at 11).



                                             12
       This point is Towne’s most persuasive, but even so, it does not carry her burden.
The Government refers to DoDI 1332.38, ¶ E3.P5.1.2, quoted above, in contradiction of
Towne’s argument. It observes, for example, that the raid against Osama Bin Laden’s
compound did not occur within a designated combat-zone, but ¶ E3.P5.1.2 ensures that
people injured in such an operation would be entitled to enhanced severance payments.
Towne counters this point by observing that operations like the assault on the Bin Laden
compound arise in “relatively few or unique situations,” such that the “combat-related
operations” prong of the statute is rendered insignificant. (Docket No. 25 at 12).

        The Government is, once again, correct. While the Bin Laden example proves the
point that the DoD’s construction extends beyond the confines of designated combat
zones, there is another example of “armed conflict” in a non-combat zone: the attack on
the U.S. Embassy at Benghazi, Libya. Libya was not designated as a combat zone at the
time of the attacks. See www.irs.gov/uac/Combat-Zones. Yet this particular conflict
would clearly fall under the DoD’s definition of “combat-related operations,” as it would
qualify as either a “riot, or any other action in which service members are engaged with a
hostile or belligerent nation, faction, force, or terrorists.” See DoDI 1332.38, ¶
E3.P5.1.2.1. In addition, ¶ E3.P5.1.2.2 covers situations where a service member is
imprisoned or detained—which situations clearly do not need to arise in a combat zone.

       Although these situations may be uncommon, they suffice to show that the
“combat-related operations” prong of § 1212(c)(1)(A) is not meaningless. Circumstances
can, and do, arise outside of designated combat zones which nevertheless necessitate
armed conflict. The DoD’s construction of the statute ensures that, when such
circumstances do arise, the participating service members are eligible for enhanced
severance payments. This result is a reasonable reading of the statute.

         Towne’s final point to this argument is that the DoD’s construction effectively
results in treating “combat-related operations” only as “combat operations.” This reading
construes the DoD’s construction too narrowly. To this Court’s reading, DoDI 1332.38
allows for receipt of enhanced payments in non-combat (i.e., combat-related) situations.
The extensive list of operations that fall under “armed conflict” in ¶ E3.P5.1.2.1 includes
a number of operation types which require, for example, scouting, planning, transport,
and any number of other activities that are not inherently combative and need not take
place in a designated combat zone. Once again, the DoD’s construction of “combat-
related operations” appears to include these activities, and as such, its definition cannot
be construed as strictly limited to “combat operations.”

        Although Towne has once again put forth an argument for why another
construction might be reasonable, it has not demonstrated to this Court that the DoD’s
construction is unreasonable. In light of the DoD’s careful consideration of the statute,
the Court cannot say that Towne’s arguments render the DoD’s decision arbitrary,
capricious or otherwise contrary to law.




                                            13
                      vi. The DoD’s Interpretation is Not Inconsistent with the
                          Legislative History of the WWA

        Towne next attacks the DoD’s interpretation on the basis of the legislative history
of the WWA. She argues that this history is necessary to understanding the WWA and
that the DoD’s interpretation of the law is inconsistent with that history. Towne directs
this Court to the statements of Senator Mark Pryor, who stated that “the section on
disability severance pay … expands the population that is eligible for the enhancement of
disability severance pay to include injuries incurred during performance of duty in
support of combat operations” including “in training exercises before they are sent into
theater.” 153 Cong. Rec. S9198 (daily ed. July 13, 2007) (statement of Senator Pryor)
(emphasis by Plaintiff). The Government, for its part, claims that there is no reason to
consider the legislative history because the statute is unambiguous. Alternatively, the
Government argues that if the Court does consider the legislative history, the DoD’s
construction is consistent with the legislative history of the WWA.

        This Court sees no reason to consult the legislative history of the WWA because
the language of the statute is unambiguous. See DeCosta v. United States, 987 F.2d
1556, 1558 (Fed. Cir. 1993) (“If the language of the section is unambiguous and the
legislative history does not show that congressional intent was clearly contrary to the
section’s apparent meaning, that meaning of the statute controls, and there is nothing else
for us to review.”) (citing Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 395 (Fed.
Cir. 1990); see also Indian Harbor Ins. Co. v. United States, 704 F.3d 949, 954 (Fed. Cir.
2013) (“When the statutory language is ambiguous, legislative history can be useful in
determining Congressional intent.”). Here, the language of the statute unambiguously
delegates to the Secretary of Defense the authority to define “combat-related operations.”
See 10 U.S.C. § 1212(c)(1)(A). Thus, the legislative history is unnecessary to understand
the plain meaning of the statute.

        Even if the Court found it necessary to consult the legislative history, the single
reference uncovered by Towne is not persuasive. This is one statement out of many on
the subject. Towne has not demonstrated to the Court that Senator Pryor’s sentiments
were held across the Senate, and even so, the language of the statute—the language
adopted by the entire Congress—does not state what Senator Pryor indicates. Thus,
again assuming that the statute is ambiguous, the Court would follow the Federal
Circuit’s guidance in observing that, “[i]f, however, the statutory language is ambiguous
and the legislative history does not answer the precise question at issue, we must defer to
the administrating agency’s interpretation if it is reasonable.” DeCosta, 987 F.2d at 1558
(citing Chevron, 467 U.S. at 842-44).

        For these reasons, the Court does not believe that the legislative history dictates a
finding that the DoD’s interpretation is unreasonable. First, the statute is unambiguous in
its delegation of authority. Second, even if it is ambiguous, the Court would not be
persuaded by the statement of a solitary senator when his statement is not embodied in
the statutory language.



                                             14
               d. The DoD’s Definition of “Combat-Related Operations” Does not
                  Conflict With its Definition “Combat-Related Disability”

        Instead of relying upon statutory canons, Towne’s next argument takes a different
tack. She argues that the DoD has created conflicting regulatory definitions of “combat-
related,” and that it has failed to explain its reasoning. Therefore, she asserts that the
DoD’s construction of “combat-related operations” is arbitrary and capricious. See FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 549 (2009) (“Unexplained inconsistency is
a reason for holding an interpretation to be an arbitrary and capricious change from
agency practice.”) (internal quotation omitted) (emphasis in original).

        Towne notes that, in the case of combat-related disabilities, the DoD has
interpreted “combat-related” to mean disabilities that arise due to (1) armed conflict, (2)
hazardous service, (3) under conditions simulating war, or (4) caused by an
instrumentality of war. DoDI 1332.38, ¶ E3.P5.2.2. Meanwhile, the DoD interpreted
“combat-related operations” to mean “armed conflict.” See id. at ¶¶ 5.5.8.1, E3.P5.1.2.
This, she argues, is precisely the kind of conflict addressed in Fox.

         Once again, the Court notes that the term at issue is not simply “combat-related.”
It is “combat-related operations.” Moreover, the DoD did not actually do any
interpreting in reaching its definition of “combat-related disability”: that definition is
drawn directly from 10 U.S.C. § 1413a(e), because the statute did not grant any
interpretive authority to the DoD. Meanwhile, the statute at issue in this case explicitly
granted the Secretary interpretive authority.

        Even if one accepts Towne’s assertion that the DoD’s interpretation of “combat-
related” with respect to disabilities and injuries is in conflict with its interpretation of
“combat-related operations,” the DoD has adequately explained why it determined that
the operations provision should have a narrower definition. First, the Court
acknowledges Towne’s point that the Dictionary includes “training” in one of its
definitions of “operations.” However, that definition’s source is the JP 3, upon which the
DoD relied in its analysis. The DoD Opinion explains how the DoD looked to the JP 3 in
order to determine the definition of “operations,” and it excluded the one subset of
operations, “Military Engagement, Security Cooperation, and Deterrence,” which are not
combat-related. Thus, the DoD concluded that service training “would not qualify
because it is neither an operation nor combat-related.” Supp. AR at 26.

       Towne claims that this conclusion is flatly contradictory to the DoD’s Dictionary,
which it is, and the JP 3, which it is not. The JP 3, as the authoritative source upon which
the DoD’s analysis rests, says little about training activities. 9 Thus, DoD was not

9
  The Court notes that Towne submitted additional exhibits with her supplemental brief.
One of these, a printout of JP 3, does refer to training as a type of operation. See
Plaintiff’s Supp. App. at 5. This reference states that “Operations generally involve
military action or the accomplishment of a strategic, operational, or tactical, service,
training, or administrative military mission.” Id. This reads as two lists: “strategic,
                                             15
patently incorrect in concluding that training activities do not constitute a “combat-
related operation.” Even so, the Court reads the DoD’s statement as concluding that, if
anything, training activities fall under the “Military Engagement” subset of operations,
which are clearly not combat-related.

       The DoD Opinion next explains that, while the DoD already had a definition for
“combat-related disability,” it didn’t believe that § 1212(c)(1)(A) was intended to
encompass that definition. Its reasoning largely mirrors the Court’s reasoning above:
Congress explicitly delegated authority over “combat-related operations,” while it
affirmatively defined “combat-related disability.” Based on this distinction, the DoD
concluded that “combat-related operations” requires “something more” than the standards
embodied in 10 U.S.C. § 1413a.

        The DoD Opinion goes on to explain that, by aligning the definition of “armed
conflict” in DoDI 1332.38 with “combat-related operations,” the DoD was explaining
that “something more.” It is implicit in the DoD Opinion that the DoD believed that the
DoDI definition of “armed conflict” covered the remaining operations described in the JP
3.

        Towne relies upon SKF USA Inc. v. United States, 265 F.3d 1369 (Fed. Cir.
2001), in support of her argument that these two differing constructions necessitate
finding that the DoD’s construction of “combat-related operations” was arbitrary or
capricious. That case dealt with two differing constructions of “foreign like product”
used by the Department of Commerce (“Commerce”). SKF, however, is distinguishable
on one obvious point: the statutory language in that case was identical. See SKF, 263
F.3d at 1372 (noting that the phrase “foreign like product” appears in the two statutes at
issue). Here, “combat-related operations” appears nowhere else in the law. Even so, the
Federal Circuit did not find that the two differing constructions were necessarily arbitrary
and capricious; instead, it remanded for an explanation of why Commerce had applied
two differing constructions. Id. at 1383.

        The Court finds that the DoD’s explanation is more than sufficient to explain the
DoD’s differing regulatory definitions. Even if one disregards the distinction between
the statutory terms “combat-related operations” and “combat-related disability,” as
Towne has, the DoD’s explanation is well-reasoned and not at all arbitrary. Thus, while
the Court finds that there is in fact no conflict between the DoD’s regulatory definitions
of the two complete terms, the DoD has adequately explained why these two similar
terms are defined differently. The DoD has, therefore, overcome the Supreme Court’s
concern in Fox about unexplained differences.




operational, or tactical,” which may be combat-related, and “service, training, or
administrative,” which are not.
                                            16
               e. The ABCMR Considered Towne’s Arguments

        Towne’s final argument in her supplemental brief is that the ABCMR failed to
adequately explain its reasons for denying her relief after its consideration of the DoD
Opinion. Although the ABCMR acknowledged seven arguments presented by Towne,10
Towne argues that its failure to substantively analyze each argument renders arbitrary and
capricious the ABCMR’s decision to deny her relief.

         The Court cannot agree. As the Court’s Opinion makes clear, the ultimate flaws
in all of Towne’s arguments are that they ignore the plain meaning of the statute and the
readily-apparent distinction between “combat-related operations” and the other statutes
she points to: “combat-related operations” is not defined via a cross-reference to § 1413a.
Instead, Congress expressly delegated interpretive authority to the Secretary of Defense.
These points are expressly raised by the ABCMR. See Supp. AR at 12-13. Those two
points are sufficient to explain why the DoD’s construction of the statute was a
reasonable exercise of its discretion, and that sufficiency is not negated simply because
the ABCMR offered a more detailed rebuttal to one of Towne’s arguments.

               f. The DTM Had Expired When the PEB, APDA and ABCMR Made
                  Their Determinations, but Towne Waived This Argument by Failing to
                  Raise it Before Those Entities

         As a final point, the Court notes that the Government asserted, in its opening
brief, that by failing to raise the issue below, Towne waived her argument that the DTM
had expired. This argument arises from Paragraph 16 of Towne’s Complaint. While it
appears that she abandoned this argument in her supplemental brief, the Court briefly
considers it.

       In her Complaint, Towne argues that the findings and decisions of the PEB,
APDA and ABCMR were invalid because “the DTM was no longer in force or effect in
June 2009 when the PEB made its determination regarding Ms. Towne’s disability
proceeding or when the APDA declined to modify that determination.” Compl. at ¶ 16.

        The Court concludes that she did, in fact, waive this argument. The facts of this
case are very similar to those in Gramling v. United States, 2009 WL 4020266, Civ. No.
09-86 (Fed. Cl. 2009) (Merow, J.). There, the plaintiff received similar findings that his
disability resulted from a combat-related injury, but that his disability was not the result
of combat-related operations. In Gramling, the Government moved to dismiss the case
based on the assertion that the plaintiff waived certain arguments. Relying on Metz v.
United States, 466 F.3d 991 (Fed. Cir. 2006), as the Government does here, Judge Merow
concluded that the plaintiff’s failure to raise an argument below barred that argument at
the Court of Federal Claims.



10
   These seven arguments are the same arguments that the Court analyzed in Sections
III.c. and III.d. of this Opinion.
                                            17
        Towne appears to attempt to salvage this argument by quoting an argument that
the “DTM is invalid because it is inconsistent with existing statutory and regulatory
authority…” Pltf. Mot. at 37 (quoting AR 16) (emphasis in brief). She then claims that
this argument “lies squarely within the ambit” of her original challenge before the
ABCMR. (Docket No. 11 at 38). Towne’s argument relies heavily upon the DoD’s
combat-related disability regulations, such that the only reasonable reading of that
argument below would have been that her reference to “regulatory authority” addressed
the DoDI, not the expiration of the DTM. How this unfathomably broad statement was
supposed to give the ABCMR any hint of Towne’s expiration argument is beyond this
Court. Thus, the Court agrees with the Government and Gramling in holding that Towne
waived her expiration argument by failing to actually raise it below.

       IV.     Conclusion

        For all of the reasons stated above, the Court concludes that the Army’s denial of
payment to Towne of enhanced disability severance payments was not arbitrary,
capricious or contrary to law or regulation. The Government’s motion for judgment on
the administrative record is, therefore, GRANTED. Conversely, because Towne has
failed to show that the Army’s denial was arbitrary, capricious or contrary to law or
regulation, her motion for judgment on the administrative record is DENIED. The Clerk
is directed to enter judgment accordingly.



                                                            s/ Edward J. Damich
                                                            EDWARD J. DAMICH
                                                            Judge




                                            18
