OPINION AND ORDER

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE.

This matter is before the Court for consideration of Defendant Secretary of the Army's (the "Secretary") Motion for Summary Judgment (ECF No. 11), Plaintiff Kathleen Mary Mills' ("Mrs. Mills") Cross-Motion for Summary Judgment (ECF No. 17), and the Secretary's Reply (ECF No. 18). For the reasons below, the Court DENIES Mrs. Mills' Cross-Motion for Summary Judgment (ECF No. 17) and GRANTS the Secretary's Motion for Summary Judgment. (ECF No. 11).

I.

A. Background

Mrs. Mills is the widow of late Chief Warrant Officer Herbert Mills ("Officer Mills"). Mrs. Mills filed this suit against the Secretary seeking reconsideration of the Army Board of Correction of Military Records' decision, which denied her requests to correct Officer Mills' DD Form 93. That form designated beneficiaries to his death gratuity.

B. Undisputed Facts

On February 5, 2005, Officer Mills filed a DD Form 93, designating beneficiaries to receive death gratuity benefits in the event of his death while on active duty. AR 11. Officer Mills listed his wife, Mrs. Mills, as the sole beneficiary and set her allowance at 100 percent. Pl.'s Memo. in Opp. to Def.'s Mot. for S.J., Ex. 17. Officer Mills listed his grandson as the sole beneficiary of his death gratuity, if no spouse or child survived him. Id.

In August 2005, Officer Mills filed for divorce in Ashtabula County, Ohio, and separated from Mrs. Mills. AR 5, 37-38. At Officer Mills' request, an attorney drafted a customized Court Restraining Order of Financial Assets, prohibiting Officer Mills and Mrs. Mills from:

AR 5, 34-36, 39-41; Pl.'s Memo. in Opp. to Def.'s Mot. for S.J., Ex. 12. Thereafter the divorce proceedings remained pending. AR 42-43.

On March 7, 2009, Officer Mills filed an updated DD Form 93 in which he designated his death gratuity benefits in the following allotments: 25% to his mother, 25% to his brother, 25% to his sister, and 12.5% each to two private organizations. AR 6, 29. Mrs. Mills was not named. AR 29. The Secretary never notified Mrs. Mills of Officer Mills' updated DD Form 93. Id.

While conducting an airborne operation on October 24, 2010, Officer Mills died due to a military training accident. AR 6, 32-33. At the time of his death, the court had not finalized the divorce filing between Officer Mills and Mrs. Mills. AR 42-43. Thereafter the court dismissed the divorce filing due to Officer Mills' death. Id.

Upon learning she was not a beneficiary to Officer Mills' death gratuity, Mrs. Mills contacted the Deputy Chief of Casualty and Mortuary Affairs (the "Deputy Chief") of U.S. Army Human Resources Command. AR 6, 83. After reviewing Officer Mills' DD Form 93, the Deputy Chief concluded that Officer Mills' two designations to private organizations, which totaled $ 25,000, violated 10 U.S.C. § 1477 because those private organizations are not living "persons" under the statute. AR 6, 83. Due to the two unlawful designations, the Deputy Chief disbursed the $ 25,000 to Mrs. Mills, as Officer Mills' surviving spouse. AR 6, 83, 108. The Deputy Chief also informed Mrs. Mills that the Defense Finance and Accounting Service (the "DFAS") had disbursed $ 25,000 to each of Officer Mills' other beneficiaries.

In response, Mrs. Mills filed a congressional inquiry which contested the payments to Officer Mills' named beneficiaries. AR 6. Mrs. Mills pointed out that Officer Mills improperly designated his family in percentage increments of five, rather than the required ten. AR 6, 83. For that reason, Mrs. Mills argued, the DFAS erred by disbursing the remaining $ 75,000 to Officer Mills' family members in accordance with his flawed DD Form 93. Mrs. Mills concluded that she was entitled to the full benefit. AR 6.

Upon reviewing her inquiry, the DFAS paid Mrs. Mills an additional $ 15,000 to account for the erroneous $ 5,000 surplus payments to each family member which exceeded the statutory increment. AR 7, 17-18, 83. According to the DFAS, despite this additional payment, Mrs. Mills was not entitled to the family members' full $ 75,000 because only portions of those designations were improper. The DFAS concluded that the $ 15,000 it paid to Mrs. Mills corrected the erroneous allotments and that neither the statute nor the Department of Defense (the "DoD") Financial Management Regulation ("FMR") invalidated all the members' elections. AR 9, 83, 108. On that basis, DFAS paid Mrs. Mills the additional $ 15,000 and closed her case. AR 13, 108.

In September 2013, Mrs. Mills applied for relief from the Army Board for Correction of Military Records ("ABCMR"), asserting that she should have received the full death gratuity as the surviving spouse due to Officer Mills' erroneous designations and because the Secretary never notified her that Officer Mills updated his DD Form 93. AR 84-86. The ABCMR denied Mrs. Mills relief, concluding that she did "not demonstrate the existence of a probable error or injustice." AR 56. Specifically, the ABCMR found that "the law does not state that failure to notify the spouse invalidates any other valid election," and that there was insufficient evidence to grant her relief since "[t]he Solider is not obligated to name a spouse" and "[t]he Army is not obligated to change the election even if the spouse was notified and disagreed." AR 56.

For those reasons, the ABCMR concluded that Mrs. Mills was "only entitled to the portion of the death gratuity not appropriately designated." AR 56. The ABCMR determined that:

AR 56.

After the ABCMR's finding, Mrs. Mills requested reconsideration. AR 21-27. Again, Mrs. Mills argued that the law required her to receive the full $ 100,000 gratuity for the same reasons that she had raised in her initial application. AR 23-25. Mrs. Mills also posited that the 2009 DD Form 93 violated the restraining order related to the divorce proceedings since she had a vested property interest in Officer Mills' death gratuity due to her status as a statutory beneficiary in February 2005. AR 26, 30.

In September 2017, the ABCMR reviewed Mrs. Mills's request for reconsideration and denied her relief. AR 18. The ABCMR quoted and then addressed the four issues Mrs. Mills raised for reconsideration as follows:

AR 18-19.

Mrs. Mills then filed this action under the Administrative Procedure Act ("APA"), challenging the ABCMR's decision. Pl.'s Compl. at 7-9 (ECF No. 1).

II.

Both parties agree, and are correct, that the ABCMR's decision is a final agency action subject to review under the APA, 5 U.S.C. § 701 et seq., which confines this Court's review to the administrative record. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). "The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court." Little Traverse Lake Property Owners Assoc. v. National Park Service, 883 F.3d 644, 657 (6th Cir. 2018) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985)). Because the ABCMR's decision is an informal agency adjudication, the APA's "arbitrary and capricious" standard applies. 5 U.S.C. § 706(2)(A).

The arbitrary and capricious standard requires the district court to review "whether the decision was based on consideration of the relevant factors and whether there has been a clear error of judgment." Snyder Computer Sys., Inc. v. U.S. Dept. of Transp., 13 F.Supp.3d 848, 860 (S.D. Ohio 2014) (quoting Citizens to Preserve Overton Park, Inc., 401 U.S. at 416, 91 S.Ct. 814 (1971)). "Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id. Instead, the court must determine that "the agency [articulated] a rational connection between the facts found and the choice made, and [provided] something in the way of documentary support for its action." GTE Midwest, Inc. v. F.C.C., 233 F.3d 341, 344-45 (6th Cir. 2000) (internal citations and quotation marks omitted). When reviewing military correction board decisions, courts use "an `unusually deferential application of the arbitrary and capricious standard' of the APA." Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (quoting Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)).

III.

Prior to amendment in 2007, Title 10 of the United States Code designated service members' beneficiaries under a rigid survivorship scheme. Under the current statute, however, service members designate their own beneficiaries of a $ 100,000 death gratuity, which helps defray the costs incurred after a service member's death. 10 U.S.C. §§ 1475-1478. Title 10 states:

10 U.S.C. § 1477(a)-(b).

There is no dispute that Officer Mills was a service member covered by section 1477. The parties also agree that Officer Mills violated the statute by designating only a portion of the amount payable. Further, the parties agree that the Secretary violated the statute by failing to notify Mrs. Mills when Officer Mills designated other family members as beneficiaries. Finally, there is no dispute that section 1477 is silent about the consequences of a violation.1

This case presents two issues. First, whether the ABCMR abused its discretion by concluding that a service member's benefit designation is not entirely invalidated when a service member fails to designate his beneficiary portions in 10% increments. Second, whether the ABCMR abused its discretion by concluding that a service member's designation is not entirely invalidated when the Secretary fails to notify a surviving spouse that the service member designated someone other than the surviving spouse. For the reasons below, the Court concludes that the ABCMR did not abuse its discretion in either instance.

A. The ABCMR's Conclusion that Non-Conforming Portions of Designations Do Not Invalidate the Entire Designation was Not Arbitrary or Capricious.

As the Supreme Court has stated, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Section 1477 is silent about the consequences of violations to the statute, and therefore, the ABCMR was tasked with constructing a reasonable interpretation of section 1477.

In Mrs. Mills' view, "[t]he Secretary['s] decision was arbitrary, capricious, and contrary to law because there was a clear error and injustice that was only partially remedied when DFAS mailed Mrs. Mills its self-described `appropriate remedy.'" Id. In response, the Secretary argues the ABCMR was correct in reducing the designations only by the erroneous amounts because those corrective measures "compl[ied] with the intent of the law and as well as [Officer Mills'] intentions to leave a partial death gratuity to his family members...." Def.'s Mot. for Summ. J. at 13 (quoting AR 18). In the Secretary's view, this determination complied with the statute or, at a minimum, was the agency's interpretation of an ambiguous statute that is entitled to deference." Id. The Court agrees.

With the 2008 amendments to section 1477, Congress intended to allow a service member to determine—with flexibility— who would ultimately receive his death gratuity. Further, Congress limited the amount of flexibility to ten-percent increments. Although Congress did not provide consequences for service members who exceeded the statute's limited flexibility, the ABCMR reasonably allowed the Secretary to reduce the infringing designations to comply with Congress's explicitly flexible standards. By doing so, the ABCMR sensibly interpreted section 1477's ambiguous portions in a manner consistent with its unambiguous portions. On that basis, the ABCMR was not arbitrary or capricious by refusing to entirely invalidate Officer Mills' designations due to minor departures from section 1477.

B. The ABCMR's Conclusion that the Secretary's Failure to Notify Mrs. Mills Did Not Invalidate the Entire Designation Was Neither Arbitrary Nor Capricious.

Mrs. Mills argues that the ABCMR unreasonably erred by finding that Officer Mills' 2009 DD Form 93 was valid despite the Secretary's failure to notify Mrs. Mills that Officer Mills designated individuals other than her. On this issue, the ABCMR concluded that:

AR 18. Mrs. Mills concedes that section 1477(a) does "not provide any repercussions for failure of the Secretary of the Military Department to notify the spouse." Pl.'s Memo. in Opp. at 8. Mrs. Mills contends, however, that the lack of notice precluded her from raising a claim for acquiring spousal support arrears and tax debts incurred by Officer Mills. In response, the Secretary points out that even if the Secretary had notified Mrs. Mills that Officer Mills removed her as a beneficiary, Mrs. Mills would have no basis to challenge his election. For that reason, the Secretary argues, "Mrs. Mills has provided no persuasive reason why the Board should apply a remedy after Officer Mills' death that would have been unavailable to Mrs. Mills while Officer Mills was alive." Def.'s Mot. for Summ. J. at 18. Additionally, the Secretary argues that the ABCMR's interpretation is reasonable given that Congress required the Secretary— not the service member—to notify the spouse about the service member's beneficiary change. With that in mind, the Secretary contends, it would be unjust to invalidate a service member's statutory right to name beneficiaries due to an omission about which he had no control or obligation to act.

The Court agrees. Section 1477(b) requires the Secretary to notify a spouse if the service member designates any portion to someone other than the spouse but does not provide any repercussions for failing to do so. The ABCMR was reasonable to conclude that the statute did not provide a non-notified surviving spouse the right to completely invalidate the service member's designations.2 In fact, section 1477(b) does not provide a surviving spouse—whether notified by the Secretary or not—the ability to protest a service member's designation. Therefore, the ABCMR was reasonable to conclude that the Secretary's failure to notify Mrs. Mills did not invalidate Officer Mills' DD Form 93.

IV.

In conclusion, the Court DENIES Mrs. Mills' Cross-Motion for Summary Judgment (ECF No. 17) and GRANTS the Secretary's Motion for Summary Judgment (ECF No. 11), thereby AFFIRMING the Decision of the Army Board for Correction of Military Records. The Court DIRECTS the Clerk to enter judgment accordingly.

IT IS SO ORDERED.