Free Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WILLIAM A. CLARK, et. al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 00-644 (Judge Firestone)

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL WITH ACCOMPANYING APPENDIX Pursuant to Rule 37 of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully submits this response, opposing plaintiffs' motion to compel discovery.1 As we explain below, the United States Department of Defense, the United States Army, the United States Air Force, and the United States National Guard Bureau have been searching for, and producing, responsive documents to plaintiffs since 2004. The produced documents were the result of an exhaustive search effort by hundreds of Department of Defense military and civilian personnel. Indeed, we are unaware of any military pay case in this, or any other Federal court, where DoD has undertaken such efforts to produce documents. Furthermore, the Department of Defense could have raised valid objections to almost all of plaintiffs' discovery requests during this litigation because plaintiffs' discovery requests are vague, burdensome, or outside the scope of discovery.2 However, instead of seeking numerous

In this response, we will refer to plaintiffs' motion to compel, which was filed electronically on December 7, 2007, as "Pl. Mot." or "plaintiffs' motion." Given that the sole issue that plaintiffs were allowed to take discovery upon is what, if any, correspondence courses the Secretary of Defense required members of the state militia to complete, and given that is now beyond dispute that plaintiffs' have admitted that they base their
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protective orders with the court, defendant has tried to work with plaintiffs' counsel in an attempt to understand and respond reasonably to plaintiffs' discovery requests. Moreover, agency counsel, when reviewing search efforts with subordinate service commands and agencies who were searching for responsive documents, told command and agency personnel to err upon the side of production when a question of whether a document was responsive to one of plaintiffs' discovery requests. In sum, the United States believes it has reasonably searched for and produced all responsive documents that it found in its possession. We have contacted numerous agencies within the Department of Defense on several separate occasions to inquire about potential responsive documents. Whenever a responsive document was produced to us, we turned it over to plaintiffs. Plaintiffs' motion to compel should be denied, and if discovery is extended, it should be for only a minimum amount of time. DoD has delayed the implementation of critical new training initiatives pending the outcome of this case, and further delay negatively impacts upon training men and women in the Reserve component of our armed forces. Accordingly, we respectfully request that the Court deny plaintiffs' motion, and if discovery is extended, that the period be for as short of period as possible.3

claims upon their belief that the Secretary of Defense required members of the state militia to complete correspondence courses solely by military regulation, it is difficult to see how any of plaintiffs' request are not objectionable, given that plaintiffs had access to these regulations all along. Submitted with this brief is defendant's appendix ("DA __") which contains documents that we reference in our response. 2
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ARGUMENT I. The Government Has Conducted A Thorough Search For Responsive Documents And Has Produced Everything Within Its Control Plaintiffs allegation that the United States has "not conducted a reasonable search to comply with plaintiffs' discovery requests" is without merit. Pl. Br. pp. 14-22. The United States has been searching for documents for nearly four years now, and as we have explained to plaintiffs' counsel upon numerous occasions, we have produced all responsive documents we located during our searches that are within our control. Current and former agency counsel have set forth the search techniques that they have used to ensure that their agencies have reasonably searched for and produced responsive documents. See DA 01-09 (Declaration of Major Dunlap), DA 10-13 (Declaration of Major Rockenbach), DA 14-52 (Declaration of Mr. Gonzalez), DA 53-55 (Declaration of Lieutenant Colonel Roou), and DA 56-58 (Declaration of Captain Brown). The declarations submitted by agency counsel show that each service searched offices and organizations at the strategic, operational and tactical levels of their agency to obtain potentially responsive documents. Moreover, given that plaintiffs' discovery requests were so broad and vague, agency personnel instructed everyone they contacted to err on the side of production if the person searching for documents was not sure if a document was responsive to a particular discovery request. It is simply not true that plaintiffs "have been able to obtain only minimal discovery from the government." Pl. Mot. p. 14. Indeed, the record shows that plaintiffs have admitted that we have been vigilant in searching for and producing responsive documents. DA 60 (Joint Status Report dated December 13, 2004 noting Government production); DA 62-77 (various e-mails showing Government's cooperation and production). 3

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Plaintiffs' allegation at page 15of their motion that the Government "has not complied with its obligation to make reasonable inquiries in response to Plaintiffs' discovery requests" because Air Force regulations were not available when plaintiffs were given access to the Pentagon Library for a second time is equally with merit. See also Pl. Mot. p. 9. While plaintiffs are correct that Air Force regulations were not available for inspection when they again, recently, visited the Pentagon library,4 plaintiffs fail to mention that they were granted access to both the Pentagon and the Maxwell Air Force base library on previous occasions. Plaintiffs were given access so that they could have unfettered access to all Air Force regulations. Moreover, plaintiffs were told that after their inspection, they should identify all the regulations or documents that they viewed and that we would copy and produce them. Furthermore, plaintiffs fail to mention that at the conclusion of their previous visits, plaintiffs told Government counsel that they were receiving all the regulations they identified and given that plaintiffs have not complained since, we justifiably assumed that they had access to all the regulations they needed. DA 66, 71 (e-mails of February 23, 2005 and March 4, 2005 from plaintiffs' counsel showing Government's cooperation with providing all requested Air Force documents from Maxwell Air Force Base.). Nevertheless, despite this previous understanding,

Plaintiffs were recently told that the Pentagon Library possessed Air Force regulations. However, we have since learned that these regulations are now stored at Maxwell Air Force Base in Alabama. At the time plaintiffs were told that we would work to get them renewed access to the Pentagon Library, we also told them that they could have access to the Maxwell Air Force Base library if they so desired. This offer regarding access to Maxwell Air Force base was extended again to plaintiffs' counsel prior to the deposition of plaintiff James Davern. However, to date, plaintiffs have not affirmatively responded to our offer. Nonetheless, the offer remains open. 4

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we believe we have made available all of the regulations plaintiffs now state that they need and produced them to plaintiffs.5 Similarly, plaintiffs allegation that we have failed to produce state guard documents in our possession is without merit. Pl. Mot. p. 16. We have consistently explained that these documents are within the control of each state's national guard and not the Department of Defense. Nevertheless, we have worked with each state from the outset of discovery in an effort to get them to voluntarily comply with plaintiffs' discovery request. Every document that a state sent to us was produced to plaintiffs. However, to ensure plaintiffs have everything that we have, we have copied these state records again and have produced these duplicate sets to the plaintiffs. Finally, plaintiffs' concerns that the United States is deliberately obstructing the discovery process is a scandalous accusation made without any support. See Pl. Mot. p. 16. First, as mentioned above, we have been working with the states for nearly four years now to get them to voluntarily cooperate. We also have been urging plaintiffs to subpoena state guard bureaus if they believed they were not receiving documents that they needed. Despite our urging, it was not until November 2007, nearly a month after written discovery closed, that plaintiffs took any steps to obtain information within the control of the states.6 See DA 21-37. It was plaintiffs' failure to timely request these documents from the states, and not any failure by

If plaintiffs disagree with this statement, we will continue to work with plaintiffs' counsel on this matter. Plaintiffs' failure to seek timely discovery directly from each state's national guard, as it may now belatedly wish it had, does not provide an appropriate basis either to compel the Government to produce additional documents or to justify an extension of the discovery the period. 5
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the United States, that caused this issue. Nevertheless, as before, we have continued to urge the states to comply with plaintiffs' untimely request, and now believe plaintiffs are in possession of all the documents that they recently requested. Plaintiffs' argument that the United States has not made a complete production of documents responsive to several alleged "key questions" is also without merit. Pl. Mot. pp. 1619. As the declarations from agency counsel explain, the military has reasonably searched for and produced all responsive documents to the plaintiffs. See DA 5-7, 10-13, 17-19, 53-55. Moreover, the United States has searched for, and produced documents, without consideration that "the burden or expense of the proposed discovery outweighs its likely benefit." For example, plaintiffs have asked for documents from 1970 to the present. However, given that plaintiffs now admit that the authority that they allege as the basis for them to complete correspondence courses is regulatory, the Government maintains that any document that is not regulatory in nature has no benefit in this case. Furthermore, because plaintiffs' complaint was filed in 2000, even if plaintiffs could show that a regulation issued by the Secretary does require members of a state's militia to complete correspondence courses, any requirement before 1994 has no benefit to this litigation because the Court's six-year statute of limitations would preclude recovery. 28 U.S.C. § 2501. Similarly, because plaintiffs maintain that an amendment to 37 U.S.C. § 206 enacted on December 28, 2001 precluded compensation for completing correspondence courses after that date, any regulation that is issued after December 28, 2001 also has no effect in this case. See Pl. Br. in Opp. to Def. MSJ, footnote 11, page 9 (filed under seal June 13, 2005); PACER Document 108-2, page 17 of 48; Plaintiffs' Third Amended Complaint, PACER Doc. 169-2, ¶¶ 50-53.

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In regards to plaintiffs' specific allegations set forth at pages 19 through 21 of their motion, the Government has informed plaintiffs that we have searched, and gone back and searched again, those tenant organizations that we believe would have responsive documents to a specific discovery request. DA 7-8, 18-19. After each inquiry, we produced those documents that were found. The Government simply does not believe it has any additional documents to produce. The Department of Defense cannot produce documents it does not have, and military counsels' declarations cannot state this fact any more fully. Hagemeyer North America, Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594 (E.D.Wis. 2004)("A party need not produce documents or tangible things that are not in existence or within its control." citing Norman v. Young, 422 F.2d 470 (10th Cir.1970)). Additionally, it is sufficient that counsel for the agency responded by declaring in their affidavits that a document or tangible thing is not in existence. Id. Citing 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil § 2213 (2d ed.1994). Agency counsel for the Department of Defense, the United States Army and Air Force, and the National Guard Bureau have provided sworn testimony that they supervised the gathering of all records, including all documents and electronic media, from all departments within the Department of Defense that were reasonably known or suspected to have material that was responsive to plaintiffs' discovery requests. Agency counsel have made multiple requests to their agency's various commands and offices as plaintiffs provided necessary focus regarding their specific requests, and all materials located in response to those requests were delivered to plaintiffs' counsel. Moreover, in their declarations, counsel for the Department of Defense go even further and specifically rejects plaintiffs'

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inference that the agencies within the Department of Defense improperly withheld or destroyed responsive documents. These statements clearly address the concerns plaintiffs raise here, i,e. that the Department of Defense did not conduct a full and complete search of its records. At bottom, senior attorneys within the Department of Defense have unequivocally testified that all responsive documents were reasonably searched for, gathered, and produced for plaintiffs. It is long-settled that Government officials, like Lieutenant Colonel Roou, Major Rockenbach, Major Dunlap, Captain Brown, and Mr. Gonzalez are presumed to have carried out their duties in an appropriate manner. See United States v. Chem. Found., Inc., 272 U.S. 1 (1926) ("The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties."); see also Schism v. United States, 316 F.3d 1259, 1302 (Fed. Cir.2002) (citations omitted) ("This presumption of regularity is the supposition that public officers perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations, and is valid and binding unless `well-nigh irrefragable proof rebuts or overcomes it.'"). Plaintiffs have not produced any, let alone "well-nigh irrefragable" proof that these men and women were acting in any other manner when overseeing the Department of Defense's search. Accordingly, this baseless aspect of plaintiffs' motion should be denied. II. The Government's Production Complies With All Applicable Discovery Rules Plaintiffs next argue that the Government's production fails to comply with discovery rules because, among other things, the production was not organized and documents were not bate-stamped. Pl. Mot. 22-23. We disagree with this allegation, and note that we have been producing documents without bates-numbers upon searchable compact discs for the past three

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years without complaint. Nevertheless, we have gone ahead and bate-stamped all of the documents that we have previously produced to plaintiffs in response to plaintiffs' second request for documents and have sent these to plaintiffs' counsel, as well. III. Discovery Schedule As previously stated, we oppose extending the discovery period for any length of time. Plaintiffs have had access to all applicable regulations for at least the past three years, and given that the basis for each plaintiff's claim is that, solely pursuant to regulation, the Secretary of Defense required each of them to complete correspondence courses, there is no need for additional discovery. Furthermore, new training initiatives are being impacted upon pending decision of this case. However, if the Court rejects our request that discovery not be extended, we respectfully request that the time that discovery is extended is brief so that plaintiffs' counsel is allowed to take limited7 discovery of the Government's proposed RCFC 30(b)(6) witnesses. CONCLUSION For the foregoing reasons, defendant respectfully requests that this Court deny plaintiffs' motion to compel production of documents. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

Plaintiffs' counsel has submitted to the United States a list of over 60 topics that it wants the Government to produce 30(b)(6) witnesses who are capable of responding to matters concerning plaintiffs' proposed topics. The topic areas cover extremely broad subject areas, and we repeatedly have asked plaintiffs' counsel to streamline these topic areas. Otherwise, the Government would have to produce dozens of 30(b)(6) witnesses just to ensure defendant was producing witnesses possessing responsive information covering these broad topic areas. 9

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JEANNE E. DAVIDSON Director

s/ Bryant G. Snee BRYANT G. SNEE Deputy Director

OF COUNSEL: MAJOR JERRETT DUNLAP United States Army Litigation Division

TIMOTHY MALLOY LT COL BRIAN ROOU United States Air Force General Litigation Division MAXIMINO GONZALEZ National Guard Bureau Office of Chief Counsel

s/ Douglas K. Mickle DOUGLAS K. MICKLE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel. (202) 307-0383 Fax (202) 353-7988

Attorneys for Defendant January 4, 2008

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on January 4, 2008, a copy of the foregoing "DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL WITH ACCOMPANYING APPENDIX" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's System.

s/Douglas K. Mickle Douglas K. Mickle

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INDEX TO DEFENDANT'S APPENDIX Declaration of Major Dunlap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Declaration of Major Rockenbach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Declaration of Mr. Gonzalez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Declaration of Lieutenant Colonel Roou . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Declaration of Captain Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Joint Status Report, December 13, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 E-mail string from March 4, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 E-mail string from March 7, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 E-mail string from March 21, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

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OF UNITED STATES COURT FEDERAL CLAIMS

WILLIAM A. CLARK, et al., Plaintiff,
V.

THE UNITED STATES Defendant.

) (Judge Firestone) ) ) ) )

) ) ) ) ) ) No. 00-644C )

DECLARATION OF MAJOR JERRETT W. DUNLAP~ JR. I, Jerrett W. Dunlap, Jr., declare and state the following: 1. I am an officer in the U.S. Army Judge Advocate General's Corps, currently assigned to

the U.S. Army Legal Services Agency, Litigation Division, Military Personnel Litigation Branch. I am an attorney duly admitted to the bar of the Court of Federal Claims, currently assigned as agency counsel for the Department of the Army. I am a major in the Regular Army. This declaration is made on personal knowledge of factual matters known to me and if called upon as a witness, I could and would testify competently to them. 2. I have been responsible for coordinating the Army's response to Plaintiffs' June 22, 2006

Second Set of Docurnent Requests. Upon receipt of plaintiffs' document request, I coordinated and conducted a broad and thorough search for the requested documents within the Department of the Arrny, as well as within the Department of Defense. I determined I could best conduct the search for documents that were responsive to plaintiffs' document request by undertaking a two pronged approach. This approach would include both a top-down search for responsive documents, as well as a grass-roots search for responsive docurnents from the subordinate Army units responsible for administering and conducting training.

DA O1

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3.

I conducted a top-down search for responsive documents by contacting officials

responsible for training and training policy at the Pentagon in the Department of Defense as well as Headquarters, Department of the Army. These Pentagon officials helped me identify the individuals and organizations that would have documents and information related to plaintiffs' document production request. In addition to numerous telephonic discussions with Pentagon officials, I also visited the officials and went through their files with them in order to identify all responsive documents. 4. In addition to contacting Pentagon officials, I conducted the top-down search for

responsive documents by contacting officials at the U.S. Army Training and Doctrine Comlnand ("TRADOC"). TRADOC is responsible for recruiting, training, and educating the Anny's Soldiers; developing its leaders; supporting training in units; developing Army doctrine, standards, and building the future Army. I began by contacting the TRADOC Staff Judge Advocate, the senior legal advisor in TRADOC, who facilitated the document production search by contacting TRADOC officials involved in administering correspondence course training and policy and ensuring they cooperated with the document production request. I then contacted the TRADOC officials that had been identified as being involved in administering correspondence course training and policy in order to identify all responsive documents. 5. Simultaneous with conducting the search for responsive documents through Pentagon and

TRADOC officials, I contacted each of the A~any's schools responsible for providing training. Although these schools fall under TRADOC, a two pronged approach was employed to ensure all responsive documents were identified and produced. The various Army schools are located on several different installations throughout the United States. I also employed a two pronged approach with regard to each individual school. In addition to contacting the school directly, I

DA 02

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also contacted the office of the Staff Judge Advocate on each installation to ensure all relevant officials were located and to facilitate identification and production of documents. 6. Use of this multi-pronged approach resulted in the redundant identification and

production of many documents. Nevertheless, this method was employed to provide a thorough search in response to plaintiffs' document production request. My records indicate that I communicated with at least fifty-eight Department of Defense and Army officials in my efforts to produce responsive documents. While not all of these officials possessed information regarding plaintiffs' document production request, they assisted in identifying those individuals who could provide assistance. The United States has already informed plaintiffs of the approximately twenty-five Army or Department of Defense officials who were identified as either producing responsive documents or having searched for responsive documents. 7. The responses fi'orn Army officials clearly indicated the broad wording of plaintiffs'

document production requests resulted in a truly burdensome requirement to search through files for such an expansive range of documents over such a lengthy timeframe. It was also noted that there were not officials available who had sufficient longevity and background to competently speak to the availability of documents back to 1970. Although the Army officials indicated the broad wording of the document production requests made it impossible to provide documents that satisfied all of plaintiffs' document production requests, the Army officials nevertheless conducted an exhaustive and reasonable search for documents responsive to plaintiffs' various requests for discovery, and have now produced these documents that they identified as falling within the broad parameters of plaintiffs' document production requests. 8. On August 1, 2006, Christina Fal~ny and Allan Sutton reviewed all responsive, non-

privileged, documents that had been collected from Department of Defense and Army officials,

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as well as the responsive, non-privileged, documents produced by the United States Air Force and the National Guard Bureau, which were forwarded to my office. Our records indicate that 275 responsive documents were made available to plaintiffs. This is in addition to the numerous documents that were previously produced by the United States and provided to plaintiffs on fourteen CDs with documents in 2004 and 2005 in accordance with the Court's July 15, 2005 order. The documents provided to Mr. Sutton and Ms. Fahmy did not have identification numbers. After Ms. Fahmy and Mr. Sutton had examined the documents, Mr. Sutton asked how the documents would be made available; specifically stating plaintiffs would not require the Army Correspondence Course Catalogs. I informed him that I would have the documents copied and delivered via courier. Mr. Sutton also indicated he was going to send me a letter clarifying plaintiffs' response to the Government's objections regarding plaintiffs' document production request. Mr. Sutton indicated he would send the clarifying letter the next day. I determined that I would wait until Mr. Sutton's clarifying letter arrived before I forwarded the documents, incase the clarifying letter impacted on the nature of the document production. 9. Upon receipt of Mr. Sutton's clarifying letter, I personally copied all documents, less the

Army Correspondence Course Catalogs, that had been reviewed by Mr. Sutton and Ms. Fahmy in our office and had those documents delivered via courier. I did not include the approximate 3,950 pages from the Army Correspondence Course Catalogs, consistent with Mr. Sutton's request. In order to speed the production of the documents, I did not affix document identification numbers. Mr. Sutton's clarifying letter did not mention the need for identifying numbers, even though the documents contained no such identifying numbers at the time of inspection.

DA 04

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10. I also contacted Major Chris Soucie, who was responsible for document production for the Army pursuant to the Court's July 15, 2005 order, who stated document identification numbers had not been required under the previous document production request, in order to speed production. Major Soucie indicated that our practices for searching for documents were consistent with the practice he employed under the Court's July 15, 2005 order, although the instant document production requests were broader, requiring a broader search. 11. I continued to search for responsive documents and to consolidate them as they were received fiom officials in the Department of Defense and its subordinate agencies. Plaintiffs' counsel also communicated their belief that there were deficiencies in the Government's document production. Ms. FaNny stated during a phone ca!! that the lack of identifying number on the documents made it difficult for them to identify the alleged deficiencies. While we were in the process of attempting to resolve the alleged deficiencies, plaintiffs' counsel proposed that discovery be stayed pending enactment of the 2007 National Defense Authorization Act. The Court granted the parties joint motion and stayed discovery on September 8, 2006. 12. After the Court reopened discovery, I directed a legal technician employed by the Army's Litigation Division to attach identification numbers to our copies of the responsive documents and to put them in binders. All of the documents that were in our control that had been provided to plaintiffs were included in the binders. During a teleconference with plaintiffs' counsel on November 29, 2007, I offered to send plaintiffs a copy of the binders with the document identification numbers. During this same teleconference, Plaintiffs' counsel accepted our offer to grant them access to the Pentagon library. 13. On December 3, 2007, and again on December 6, 2007, our paralegal staff escorted Ms. FaNny and her colleague to the Pentagon library. Our paralegal staff assisted Ms. Fal~rny and

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her colleague to copy numerous regulations at the Pentagon library. This was the second and third time that Ms. Fahmy had been escorted to the Pentagon library, as our paralegal staff had previously escorted Mr. Sutton and Ms. FaNny to the Pentagon library to find documents under the Court's July 15, 2005 order. After discussing this issue with Major Soucie and then reviewing his case notes, it is apparent that plaintiffs' counsel also were given full access to United States Air Force documents contained at Maxwell Air Force Base in 2004. 14. After our two paralegal staff members had finished escorting Plaintiffs' counsel to the Pentagon library, they scanned the contents of the numbered documents contained in the binders. 15. On December 21, 2007, plaintiffs' counsel indicated that identification numbers alone would not be sufficient and requested that each individual page be numbered. This required our paralegal staff to again scan the documents in order to attach an identification number. This process took almost two weeks to accomplish. Once the documents had been scanned, they were transferred to a CD-ROM and were delivered to plaintiffs. All responsive Army documents have been provided to plaintiffs. 16. The Army has specifically conducted an exhaustive and reasonable search for documents responsive to plaintiffs' document production request 8, and have now produced these documents. For example, the Am~y has provided the members of a General Officer Steering Committee chartered to address the way ahead for Army distributed learning. The members of this committee are detailed in a memorandum for Reserve Component Coordination Council (RCCC), dated October 10, 2003, a copy of which was provided to plaintiffs. See Exhibit D to plaintiffs' motion to compel, (publication matrix, document 49). While this document was not a "roster or organization chart" as requested, it nevertheless lists committee members. A specific "roster or organization chart" was not provided, as no such document was discovered. This is

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only one example of the numerous responsive documents provided by the Army to plaintiffs. I personally contacted officials at the Pentagon, TRADOC, as well as Army schools requesting all documents responsive to request 8, who_conducted an exhaustive and reasonable search for documents responsive to plaintiffs' various requests for discovery, and have now produced these documents. 17. Regarding requests 12-15, 27, 36, and 37, the Army has conducted an exhaustive and reasonable search for documents responsive to these requests for discovery, and has now produced these documents. I personally contacted officials at the Pentagon, TRADOC, as well as Army schools requesting all documents responsive to requests 12-15, 27, 36, and 37. The majority of responsive documents are contained in Army Regulations, which are publicly available through the Library of CongTess. Nevertheless, the Army has provided all documents identified as responsive to requests 12-15 in its possession, as well as assisting plaintiffs on three separate occasions, beginning in 2004, to conduct legal research at the Pentagon library. 18. Regarding requests 41 and 49, I personally requested information relating to these document production requests from officials at the Pentagon, TRADOC, as well as Army schools. After conducting an exhaustive and reasonable search for documents responsive to these requests for discovery, these officials provided no responsive documents. Plaintiffs now refer to an article that is publicly available. The content of the article is not the official position of the Army. This article does not appear to be responsive to plaintiffs' request. Request 41 states: "All documents to, from or relating to the Distance Learning/Training Technology Applications Subcommittee to the Secretary of the Army that relate to its function, mission, and responsibilities, or the approval and/or use of correspondence courses to satisfy mission and!or training needs." While this document does mention the Distance Learning/Training Teclmology

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Applications Subcommittee, it is not "to the Secretary of the Army." Moreover, the article is not "to or by" the subcommittee, as requested in request 49. 19. Plaintiffs' request 42 seeks documents related to the Directorate, Common Leader Training. I spoke with the former director of the Directorate, Common Leader Training, who indicated the organization no longer exists. Nevertheless, the Army has conducted an exhaustive and reasonable search for documents responsive to this request for discovery, and have now produced the identified documents relating to the organization's function, mission, and responsibilities. The former director of the Directorate, Common Leader Training, indicated the organization was not involved in correspondence courses, as its mission was to provide instructors for training. 20. Plaintiffs' request 59 seeks "all documents relating to DOD's justification for its policy and practice of refusing to pay compensation to National Guard members for completion of correspondence courses." It is not DOD's practice to create documents justifying payments it does not make. For example, National Guard Soldiers regularly conduct physical training in their civilian status in order to meet the Anny's physical fitness standards. Nevertheless, the Army does not produce documents justifying why these Soldiers are not compensated for running or doing pushups in their civilian status. Similarly, it is not surprising that DOD has not drafted documents to justify its policy to not pay servicemembers for the completion of correspondence courses while not in federal service. I personally contacted officials at the Pentagon and TRADOC requesting all documents responsive to request 59. These officials conducted an exhaustive and reasonable search for documents responsive to these requests for discovery. No responsive documents were discovered.

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I declare under penalty of perjury that the foregoing is tree and correct in accordance with 28 U.S.C. § 1746. Executed on this 4th day of January 2008.

Major, U.S. Army

DA 09

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UNITED STATES COURT OF FEDERAL CLAIMS WILLIAM A. CLARK, et al., Plaintiff,
V.

THE UNITED STATES Defendant.

) ) ) ) ) ) ) ) ) ) ) )

No. 00-644C (Judge Firestone)

DECLARATION OF MAJOR TRACEY R. ROCKENBACH

I, Tracey R. Rockenbach, declare and state the following: 1. I am an officer in the U.S. Air Force Judge Advocate General's Corps, currently assigned

to the Air Force Legal Operations Agency, Civil Law and Litigation Directorate. I was assigned as agency counsel for the Department of the Air Force from January 2006 through April 2007. I am a major in the Regular Air Force. This declaration is made on personal knowledge of factual matters known to me and if called upon as a witness, I could and would testify competently to them. I was responsible for coordinating the Air Force's response to Plaintiffs' June 22, 2006 Second Set of Document Requests. Upon receipt of Plaintiffs' document request, I coordinated and conducted a broad and thorough search for the requested documents within the Department of the Air Force. 3. I contacted officials in the Air Force Directorate of Manpower and Personnel at the

Pentagon. These Pentagon officials helped me identify the individuals and organizations that would have documents and information related to Plaintiffs' document production request. I personally visited the subordinate office within Directorate of Manpower and Personnel which

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deals with Enlisted Professional Military Education and searched through their files. All responsive documents were produced. 4. In addition to contacting Pentagon officials, I conducted Air Education and Training

Command (AETC). AETC is responsible for recruiting, training, and educating the Air Force's Airmen. I began by contacting the AETC Commander's orderly room. When I indicated that I was searching for information related to specific correspondence course training, they directed me to Air University. Air University (AU) provides the full spectrum of Air Force education, from pre-commissioning to the highest levels of professional military education, including degree granting and professional continuing education for officers, enlisted and civilian personnel throughout their careers. The university's Professional Military Education (PME) programs educate airmen on the capabilities of air and space power and its role in national security. I contacted several offices within AU; the history office ultimately provided the responsive documents. 5. Simultaneous with conducting the search for responsive documents through Pentagon and

AETC/AU officials, I contacted each of the Air Force's schools responsible for providing training. Although these schools fall under AU, a two pronged approach was employed to ensure all responsive documents were identified and produced. I also employed a two pronged approach with regard to each individual school. In addition to contacting the school directly, I also contacted the office of the Staff Judge Advocate for AETC and AU to ensure all relevant officials were located and to facilitate identification and production of documents. 6. In addition to contacting Pentagon officials and AETC officials, I also contacted the Air

Force Historical Studies Office. The historian conducted a search of all of their holdings using keywords from the document production request. The results of that search were produced to

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plaintiffs. Plaintiffs were informed that the documents were all located at Maxwell and that the Air Force would provide access to the documents. The plaintiff responded by providing the call numbers of twenty-four documents and asking us to produce those documents. I went to the Air Force Historical Studies Office at Bolling Air Force Base, Washington, DC, and pulled the twenty-four documents from microfilm. 7. My records indicate I communicated with at least twenty Air Force offices in my efforts

to produce responsive documents. While not all of these offices possessed information regarding Plaintiffs' document production request, they assisted in identifying those individuals who could provide assistance. The United States has already informed Plaintiffs of the approximately fifteen Air Force officials who were identified as either producing responsive documents or having searched for responsive documents. 8. The responses from Air Force officials clearly indicated the broad wording of Plaintiffs'

document production requests resulted in a truly burdensome requirement to search through files for such an expansive range of documents over such a lengthy timeframe. It was also noted that there were not officials available who had sufficient longevity and background to competently speak to the availability of documents back to 1970. Although the Air Force officials indicated the broad wording of the document production requests made it impossible to provide documents that satisfied all of Plaintiffs' document production requests, the Air Force officials nevertheless produced all documents in their control that they identified as falling within the broad parameters of Plaintiffs' document production requests. 9. All documents located during this expansive search were provided to Maj Chris Soucie and!or Maj Jerrett Dunlap of the U.S. Army Litigation Division. In November 2007, I was notified that Plaintiff's indicated they had not received a long list of documents identified on the document

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production matrix. I personally searched through the Air Force's copy of the documents and found each of the missing documents. Some documents were duplicated on the matrix. I only produced them once. 9. 10. The Air Force has always maintained that Air Force regulations are maintained at

Maxwell AFB, AL and that plaintiff's may visit the library there and search. I personally searched the online catalogue of Air University and produced all responsive documents which I found. In addition, as mentioned in paragraph 6, I had the Air Force Historical Research Office search the Maxwell holdings for any responsive documents. A listing of approximately 125 documents and synopsis of those documents were provided to plaintiff; twenty-four of the documents were retrieved and provided to plaintiff. Each page of the document had to be individually printed from the microfilm. For any documents which were large (over 20 pages), I printed the cover page, table of contents, and any pages which contained enough information to assist the plaintiff's in determining whether they wanted us to produce the entire document. Until the plaintiff's filed this motion to compel, I was never informed that the plaintiff's wanted the entire document produced. Also, plaintiffs were again informed that the documents were available for review at Maxwell AFB, Montgomery, Alabama. Furthermore, I did not produce any Air Force instructions which the plaintiff's previously cited in motions as I was under the impression they had been previously produced in the first document production since plaintiff's had copies of them and were citing to them in motions. I declare under penalty of perjury that the foregoing is true and correct in accordance with 28 U.S.C. § 1746. Executed on this 28th day of December 2007.

Tracey~enbach, Maj, USAF

4

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UNITED STATES COURT FEDERAL CLAIMS OF WILLIAM A. CLARK, et al., Plaintiff,
V.

THE UNITED STATES Defendant.

) ) ) ) ) ) ) ) ) ) )

No. 00-644C (Judge Firestone)

DECLARATION OF MAXIMINO GONZALEZ~ JR. I, Maximino Gonzalez, Jr., declare and state the following: 1. I am a Department of the Army Attorney Advisor, cm~ently assigned to the National

Guard Bureau (NGB), Office of the Chief Counsel, Litigation and Employment Law section (NGB-JA). The National Guard Bureau is not a command or headquarters, but is the channel of communications on all matters pertaining to the National Guard, the Army National Guard of the United States, and the Air National Guard of the United States between the Department of the Army and Department of the Air Force, and the several states. I am an attorney duly admitted to the bar of the state of New York. I am also a judge advocate officer in the District of Columbia Army National Guard (DCARNG) and the Army National Guard of the United States (ARNGUS). This declaration is made on personal knowledge of factual matters known to me and if called upon as a witness, I could and would testify competently to them. 2. Since March, 2006, I have been responsible for coordinating the National Guard Bureau's

efforts in assisting the Departments of the Army and Air Force in defense of this action, including assisting the United States in its response to Plaintiffs' second set of document requests dated June 22, 2006. In this capacity, I would receive requests for responsive documents from

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the Department of Justice (Do J), and Army and Air Force and then I would communicate with the various NGB Directorates in an effort to gather all responsive documents and provide them to the Do J, and the Army and Air Force. 3. Fulfilling our role as a communications channel, I also relayed the active-component's

requests for responsive documents to the state Judge Advocates assigned as full time Active Guard & Reserve Judge Advocates (AGR-JA) in the various state National Guards of the named plaintiffs. I did not have the capacity to order the states to comply with the discovery request since the state National Guards are not in federal service (ARNGUS) and are only under the command and control of their respective governors and adjutant generals. However, the states AGR-JAs have historically been responsive to our requests for assistance in this matter without the need for a subpoena. 4. Immediately upon my assignment to this case, I also reviewed the disclosures provided to

the plaintiffs' counsel by my predecessor, Major Christopher Brown, to ensure their completeness and to ensure that we met all of our continuing obligations to supplement our prior discovery responses under the applicable rules. I found that MAJ Brown had disclosed a large amount of material, encompassing ninety seven categories of documents, both in hard copy and electronically via CD-ROM. I reviewed plaintiff's first request for documentary discovery, which were very general, and found that MAJ Brown's responses were thorough, complete and that there was no new information which required supplemental disclosures. 5. During my review of the prior disclosures, I noticed that a many of the prior disclosures

included Army and Air National Guard regulations which were readily available in the public domain. These documents can be easily obtained via the intemet or the Pentagon or Maxwell Air Force Base Libraries. DA 015

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6.

After I was notified of plaintiff's second set of document requests, I coordinated and

conducted a broad and thorough search for all requested documents within the directorates of NGB and the National Guards of the various states of the named plaintiffs. 7. As a result, twenty three categories of documents were provided in response to plaintiffs'

second request. This is in addition to the previous ninety-seven categories of documents provided to plaintiff in response to their first set of document requests. 8. On November 8, 2007, plaintiffs' served subpoena duces tecum upon the adjutants

general of the states of North Carolina, Pennsylvania, Alabama, Hawaii, and Minnesota. Attached to each of these non-party subpoenas was a nine page itemized list of definitions and document requests. (See attachment 1 to this declaration). Additionally, the subpoenas each had another four page attachment in which the plaintiff's requested the adjutant general identify 30b(6) witnesses to discuss twenty seven different categories of information. (See attachment 2 to this declaration) 9. In order to avoid unnecessary duplication, the state judge advocates requested that I

provide them with an accounting of the documents which they had previously provided to our office voluntarily. On November 27, 2007, I provided them a matrix of all the documents which the states had previously, voluntarily, provided in response to our prior requests to date. (See attachment 3 to this declaration). The documents listed in the matrix had been previously provided to plaintiffs with the exception of supplemental Alabama yearly training guides, which I had just received from Alabama days prior to November 27th. 10. However, later in the day on 27 November I received a message from LTC Donald McKinney, the state judge advocate for Hawaii, who said that plaintiffs' counsel had informed him that they had not received any documents pertaining to Hawaii. I found this surprising

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because I knew that all documents pertaining to Hawaii were previously provided to plaintiff. However, out of an abundance of caution, I immediately provided to plaintiff's counsel, all information and documentation pertaining to the Hawaii National Guard (See attachment 4). 11. Furthermore, on November 28, 2007, I provided plaintiff with the recently received Alabama supplemental training guides. (See attachment 5). 12. On November 29, 2007, Mr. Jack Wallace, of the Alabama Attorney General's Office, sent the plaintiffs a copy of the November 27tu matrix. (see plaintiffs' exhibit 3) As stated above, our office had previously provided all the items listed on the matrix to plaintiffs' counsel, either in the response to plaintiff's first requests for documents, second requests for documents or in our continuing obligation to provide updated records. However, now in a motion to compel, for the first time plaintiffs' counsel allege NGB-JA failed to provide twenty three documents listed on the November 27th matrix (see page 11 of plaintiffs' motion to compel). 13. Prior to filing their motion to compel, plaintiff did not call me or communicate with me in an effort to resolve the perceived ambiguity regarding the alleged non-production of the twenty three documents mentioned on page eleven of their motion to compel. If they had made the effort to call me prior to filing their motion, I would have informed them that the twenty three documents in question were provided by DoJ in electronic CD-ROM format in response to the first request for documents in Nov-Dec 2004. 14. However, in the spirit of cooperation I provided again on December 21, 2007, via email attachments, the alleged twenty-three categories of missing documents noted in plaintiff's motion to compel (see attachment 6). 15. Regarding plaintifff s request for documents, number 19, the original request was general in nature and stated as follows: "All documents reflecting the use and!or need for individual

4

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training or self development training to support mission and./or deployment requirements". In response, the defendants provided thirty one categories of documents pertaining to the "use and/or need for individual training." As stated, the original request did not ask for state Unit Status Reports. It is only in plaintiff's motion that they clarify, for the first time that request 19 is for state Unit Status Reports. However, state Unit Status Reports pursuant to AR 220-1, para 2-7 are classified Secret~oForn at the state level. 16. Plaintiff's request number 35 seeks information "given to new enlistees, new noncommissioned officers, new warrant officers, new commissioned officers and new field grade officers regarding training and training requirements." I requested of NGB-ART (Training), any additional documents beyond what had previously been provided in the first documentary requests which did encompass regulations and All State Memos which referenced training and was informed that there were no additional documents. Then plaintiff' s counsel recently provided me with a portion of the booklet entitled "How to Succeed in the National Guard by Really Trying" indicated this was the type of document they were seeking. I then inquired of the NGB Directorates in particular NGB-ART (Training), NGB/A-1 and Mr. Thomas McNamara regarding the portion of the booklet provided and similar documents. I received negative responses on the origins of the booklet other than a recollection of it from the early 1990's or 1980's by Mr. Thomas McNamara. To date no similar publications have been discovered. 17. Regarding request number 50, in the original response to plaintiff's first request for documents, then CPT, now MAJ Brown provided from NGB twenty four CNGB All State Memorandums as well as a copy of NGR 351-1, Individual Military Education Training which were responsive to this request. I inquired again of NGB-J5 and NGB-ART if there were any additional documents to satisfy this request and was informed there were none. I also reviewed

5

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the NGB database of all NGB Policy Memorandums, All State Memorandums and NGB Information Memorandums from 2000 to 2007. 18. Regarding requests for state documents including Yearly Training Guides and Mission Essential Task Lists, I contacted the following AGR-Judge Advocates: COL Bryan Morgan (ALARNG), COL Richard Fay (NCARNG); LTC Robert Spinelli (PAARNG); LTC Duncan Aukland (OHARNG); LTC John Brossart (MNARNG); LTC Timothy Tomocho (CTARNG), Lt Col Donald Mckinney (HIANG); MAJ Timothy Ryan (PAARNG); MAJ Mathew Christian (MNARNG). I have been given to date and provided to plaintiffs, Yearly Training Guides for the Alabama, North Carolina, Connecticut, Pennsylvania and Ohio National Guards. Also, I have received and provided the Mission Essential Task List for the 151 st Band of the ALARNG and the 711 Signal Battalion of the ALARNG. 19. Therefore, based on my review of the non-public and public documents produced by NGB Directorates and voluntarily provided by the state National Guards, I believe that the NGBJA has conducted an exhaustive and reasonable search for documents responsive to plaintiffs' various requests for discovery, and have now produced these documents to plaintiffs. 20. Further, I have spoken with several AGR-JAs who received subpoenas duces tecum and have been informed that plaintiffs' counsel have not requested any additional records at this time in response to the subpoenas other than what has previously been provided to date. I declare under penalty of perjury that the foregoing is true and correct in accordance with 28 U.S.C. § 1746. Executed on this 4th day of January 2008.

alez, rql/zJ. ~ttorney Advisor, NGB-JA

6

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William. A. Clark, et. aL.

SUBPOENA I_N A CIVIL CASE

United States of America TO: Pennsylvania National Guard ATTN: Maj. Gen: Jessica L. Wright PermsyNania National Guard Joint Force Headquarters Bide S-0-47, Fort. !ndiantown Gap. : Aimvit!e, PA 17003

Case Number:1 00-644C (United States Ct_ of FederalClaims)

[~ YOU.ARE COIv~ED. to appear in the United. States District court at the place, date, and. time specified below to testify in the above ease.
PLACE OF TESTIMONY 1COURTROOM

~
PLACE OF D.EPOSrP!ON -.- ¯

DATE A--~ ~-ME

[] YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. Rh0ads:&:S~o~ LLP M&T Bank Building Twelfth Floor One South Market Square Harrisburg, PA 17t08-1

:~TZ ,~ND TTME !.10 a.m. December 7, 2007

¯ *Please see attached Schedule B for the matters on which examination is ~requested. [] YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at th~ place, date, and time specified below (list documents or objects):
*Please see attached Schedule A for specific documents requested.
PLACE DATE .aND TIME

10 a.m. Rhoads & Sinon, LLP December 7, 2007 M&T Bank Building ¯ Twelfth Floor One South Market Square Harrisburg, PA t7108-_1 !46 [] YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

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~. AO88 (Roy, !2106~_Subpoena in a Civil Case PREMISES

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f

DATE AND TIME

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more. officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify.. Federal Rules of Civil Procedure, 30(b)(6).
ISS~FtCER'S $IGNATUP~ AND TITLE (INDICATE IF ATFORNEY FOR PLAINTIFF OR DEFENDANT)

November 8, 2007 I

ISSUING OFFICEt~ S iAME, A@S ~ND PHONE ~b~M B ~-

"

"

Helen Michel, Esq. Ho~ey LLP 1299 Pe~sylv~ia Ave. ~ W~hin~on, DC 20004 202-783-0800
(See Rule ~5. F~e~l Rules oFCivil.P~du~. SuMivMo~ (c). (d), ~ (el, on next page)

~ If action is pending in district other than district of issuance, state district under case number.

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..A__O88 (Rev. 12/06) Subpo~a in a Civil Case

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DATE

PLACE

SERVED
SERVED ON (PRINT NAME)

November 8, 2007 Btdg S-0-47, Fort Indiantown Gap Annville, PA 17003
MANNER OF SERVICE

Pennsylvania National Guard
SERVED BY (PRINT NAME)

FedEx
TITHE

Helen Michael, Esq.

Attorney DECLARATION OF SEKVER

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct.

Executed on November 8, 2007
DATE SIGNATURE OF SERVER

Helen Michael, Esq.
.M)DRESS OF SERVER

Howrey LLP 1299 Pennsylvania Ave. NW Washinffon, DC 20004
Rule 45, Federal Rules of Civil Procedure, Subdivisions (c), (d), and (e), as amended on December 1, 2006:

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I.

DEFINITIONS For the purposes of this subpoena, terms not specifically defined shall be given their ordinary meaning. Use of the singular is also to be taken to include the plural, and vice-versa. The terms "and" and "or" have both conjunctive and disjunctive meanings. The terms "any" or "each" shall be construed to include and encompass "al!" and the use of the word "the" shatl not be construed as limiting the scope of any request. 1. "North Carolina National Guard" means a!! agencies, units, organizations, and instrumentalities of the North Carolina National Guard, and includes both the North Carolina Air National Guard and the North Carolina Army National Guard and all of the, agencies, units, organizations, and instrumentalities thereof. 2. "Correspondence course" means any type Of training, instruction or education that is currently or was formerly offered by any means of a self-directed program of study, taken without the presence of an instructor or teacher. 3. "Document" is defined to be synonymous and equal in scope to usage of this term in Federal Court of Claims Rule 34(a). A document refers to a complete original or a true, correct, and complete copy and any non-identical copies of any written, graphic, typed, printed, filmed, recorded or electronic information in the custody and control of the United States or its agencies and instrumentalities no matter how produced, recorded, stored or reproduced, including computer generated or stored data (together with any instructions, pro~ams, or passwords necessary to search and retrieve such data), as well as, without limitation, any writing, letter, telegram, electronic mai! or message, statement, book, report, study, analysis, digest, record, handwritten note, working paper, chart, graph, diagram, drawing, photograph, videotape, audio recording, diary, notes of interviews or communications, as welI as aiI applicable statutes, regulations, policy guidance,

1

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directives, pamphlets, field manuals, memoranda, or impIememing correspondence or instructions issued by any organization. 4. The term "functional trainin-g" has the same meaning it does in Field Manual 7-0, section 1-29. 5. The term "individual military education'' encompasses the educational progams offered by the Army to which certain of the Specified Courses belong, which include, but are not timited to the following: the Officer Education System ("OES"); the Non Commissioned Officer Training System ("NCOES"); the Warrant Officer Education System ("WOES'); Professional Mititary Education ("PME"); and functional ~aining. 6. The term "in-residence" when used to modify the terms "course, .... instruction," or "training" refers to the type of "course," "instruction," or training" that is provided at an approved military training institution where students attend in the presence of an instructor, who conducts the training while in an active duty or inactive duty status. 7. The acronym "METL" stands for "Mission Essential Task List" and refers to the list that defines a particular military unit's operational capabilities. The METL defines the tasks that a unit must perform, the conditions under which the tasks might take place, and the standards to which the tasks must be accomplished in order to complete a mission. The tasks describe activities or objectives to be achieved; the conditions define the environment under which the tasks have to be accomplished; and the standards provide measures of effectiveness for determiaing whether tb_e tasks have been accomplished successfully. 8. The term "'mili'uary education system" refers to the education systems or series of courses offered by the Army to which certain of the Specified Courses belong, specifically, the Officer Education System ("OES"); the Non Commissioned

2

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Officer Training System ("NCOES"); and the Warrant Officer Education System

9. "National Guard" refers to the National Guard of the several states, which is governed by Title 32 of the U.S. Code. The term is defined to include the Air National Guard and Army National Guard. 10. "National Guard of the United States" refers to the National Guard of the United States, which is governed by Title i0 of the U.S. Code. The term is defined to include the Air National Guard of the United States and the Army National Guard of the United States. 11. °'Plaintiffs" refers collectively to the parties listed in the Amended Complaint, including William A. Clark, James P. Davern, Robert E. Freeburg, Willie R. Johnson, Robert A. Mustin, Carol Risser, John Does 1 through 4 and Jane Does 2 and 3. At times herein, the term °'Plaintiffs" is also used to mean each respective Piaintiffnamed and listed in the amended complaint. 12. The term "prerequisite" has the same meaning as it does in DA PAM 351-20, Army Correspondence Course Catalog. 13. "Relating to" or "related to" mean addressing, constituting, containing, concerning, discussing, describing, identifying, involving, analyzing, reflecting, regarding, referring to, showing, mentioning, stating, or pertaining to a given subject in whole or in part. I4. "Specified courses" refer to the correspondence courses or any subcourse thereof enrolled in by plaintiffs, which incIude, but are not timited to the following: ¯ ® ® ~, ¯ Advanced Enlisted Professional Development Course ("AEPDC") Advanced Non-Commissioned Officer Course ("ANCOC") A.rmy War Cottege; Associate Logistics Executive Development course; Automated Logistical Specialist course; 3

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¯ o

Aviation Maintenance Management course; Aviation Warrant Officer Advanced Course (or any other Officer Advanced Course)

¯ o , ~ ¯

Basic Non-Commissioned Officer Course ("BNCOC"); Basic Enlisted Professional Development Course ("BEPDC") Command and General Staff Officer Course ("CGSOC'); Mechanical Maintenance NCO Course; Ordnance Officer Advanced Course (or any other Officer Advanced Course.)

15. "Subcourse" has the same meaning as it does in DA PAM 351-20, Army Correspondenc