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then applied for the "Welcome Home Bonus," which Massachusetts provides to residents who served in the United States armed forces after September 11, 2011. To be eligible for the Welcome Home Bonus, the service member must have been "discharge[d] or release[d] under honorable conditions from such service," among other criteria. Relying on the characterization of their final enlistment period as "under other than honorable conditions," the defendants, Deborah Goldberg, in her official capacity as Treasurer and Receiver General ("Treasurer"), and the Veterans' Bonus Appeal Board ("Board"), the governmental entity within the treasury which aids in administering the Welcome Home Bonus, denied the plaintiffs' requests. The plaintiffs challenge these denials.

Presently before the court are four sets of motions:

Docket No. 17, 17‑2056: Machado and Espinosa's Motion for Judgment on the Pleadings as to Counts I and II of their Amended Complaint under G.L. c. 30A and Motion for Summary Judgment as to Counts III to VIII alleging constitutional and class claims;

Docket No. 20, 17‑2056: Defendants' Cross‑Motion for Judgment on the Pleadings as to Counts I and II of Machado and Espinosa's Amended Complaint;

Docket No. 8, 18‑1310: Santos' Motion for Judgment on the Pleadings as to Count I of his Complaint under G.L. c. 30A and Motion for Summary Judgment as to Counts II to VI alleging constitutional and class claims; and

No Docket Number, 18‑1310: Defendants' Cross‑Motion for Judgment on the Pleadings as to Count I of Santos' Complaint.

For the reasons discussed below, and in light of the arguments made by counsel, the Court rules as follows:

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Docket No. 17, 17‑2056: Machado and Espinosa's Motion for Judgment on the Pleadings as to Counts I and II of their Amended Complaint is ALLOWED and their Motion for Summary Judgment as to Counts III to VIII is DENIED AS MOOT;

Docket No. 20, 17‑2056: Defendants' Cross‑Motion for Judgment on the Pleadings as to Counts I and II of Machado and Espinosa's Amended Complaint is DENIED;

Docket No. 8, 18‑1310: Santos' Motion for Judgment on the Pleadings as to Count I of his Complaint is ALLOWED, and his Motion for Summary Judgment as to Counts II to VI is DENIED AS MOOT; and

No Docket Number, 18‑1310: Defendants' Cross‑Motion for Judgment on the Pleadings as to Count I of Santos' Complaint (no paper number) is DENIED.

The Court REMANDS these matters back to the Board for reconsideration in light of this decision.

STATUTORY BACKGROUND

The Welcome Home Bonus statute ("Bonus Law") grants post‑9/11 veterans monetary payments in amounts that vary depending on the location of their military service. The Veteran's Bonus Division, under the direction of the Treasurer, administers the Bonus Law.

The Bonus Law provides:

(a) Notwithstanding any general or special law to the contrary, upon application, ..., there shall be paid to each person who shall have served in the armed forces of the United States in active service as part of part of Operation Enduring Freedom, Operation Iraqi Freedom, Operation Noble Eagle, Operation Inherent Resolve, Operation Freedom Sentinel or any successor or related operation and who was discharged or released under honorable conditions from such service, the sums specified in this section; if the domicile of every person on account of whose service the application is filed, shall have been in the commonwealth for a period of not less than 6 months before the time of his entry into the service.

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(1) $1,000 to each such veteran who performed active service outside the continental limits of the United States in the Afghanistan or Iraq area as those areas are described by proper federal authority.

(2) $500 to each such veteran who performed active service within the continental limits of the United States or outside the continental limits of the United States other than in the Afghanistan or Iraq areas for a period of 6 months or more.

St. 2005, c. 130, ' 16 as amended by St. 2005, c. 167, ' 4.[1] A service member who "is eligible to receive benefits under [the Bonus Law] may receive such benefits; provided, however, that an eligible resident shall receive the full bonus allowed by said [Bonus Law] upon return after his first deployment to [a qualifying military operation]. ... He shall thereafter receive 50 per cent of the bonus ... after each subsequent return from deployment to [a qualifying military operation]." St. 2011, c. 171, ' 3. Applications for a bonus under the Bonus Law "shall be filed with the state treasurer, upon forms to be furnished by [her]." St. 2005, c. 167, ' 4. Then the

adjutant general shall certify to the state treasurer the dates of service and any other military information necessary to carry out the provisions of this act. The state treasurer shall furnish to the adjutant general a copy of Form DD‑214 or equivalent documentation as determined by the adjutant general for the permanent record of the military division of the commonwealth.

St. 2005, c. 167, ' 4.

The form mentioned above, the Form DD‑214, is a document issued by the military when an active‑duty service member is discharged. See Department of Defense Instruction 1336.01, ' 4.3(a) (Aug. 20, 2009) ("The DD Form 214 will provide an accurate and complete summation of active military personnel service. It will provide the Military Services with an authoritative source of personnel information for administrative purposes, and for making enlistment or reenlistment eligibility determinations."); see also Army Regulations 635‑8, 5‑1 (Feb. 10, 2014)

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[1]Until 2018, the Bonus law was found in session laws. As of November 7, 2018, the law is contained in G. L. c. 10, ' 78. As the Board decided these matters before November 7, 2018, the Court will refer to the session laws in this decision and specifically, the session laws of 2005, as the Board relied on the 2005 session laws in making its determinations.

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("The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty."). Form DD‑214 is the "authoritative source of information required for the administration of State and Federal laws applicable to personnel who have been discharged." Department of Defense Instruction 1336.01, ' 4.3(f) (Aug. 20, 2009).

When an active‑duty military member decides to reenlist, the military discharges that service member from his or her current enlistment, and then the service member enters a new enlistment contract. See Department of Defense Instruction 1332.14, Enclosure 3, ' 2(a)(4) (Jan. 27, 2014) (enlisted service member may be separated for immediate reenlistment). The military does not issue Form DD‑214 when discharging an active‑duty service member for purposes of immediate reenlistment. See Army Regulations 635‑8, ' 5‑2(f) (Feb. 10, 2014). Rather, it issues Form DD‑256, "Discharge Certificate, Honorable." A military member who seeks to reenlist can only do so if his or her discharge from the prior enlistment was honorable. $ee 10 U.S.C. ' 508(a) ("No person whose service during his last term of enlistment was not honest and faithful may be reenlisted in an armed force. However, the Secretary concerned may authorize the reenlistment in the armed force under his jurisdiction of such a person if his conduct after that service has been good."); Department of Defense Instruction 1332.14, Enclosure 3, ' 2(a)(4) and 2(b) (Jan. 27, 2014); Department of Defense Instruction 1332.14, Enclosure 4, ' 3(b)(2)(a) (Jan. 27, 2014). When that service member is separated from active service and returns to civilian status, the Form DD‑214 is completed as follows:

The date entered in Block 12a shall be the date of enlistment for the earliest period of continuous active service for which a DD Form 214 was not previously issued. For Service members who have previously reenlisted without being issued a DD Form 214, and who are being separated with any discharge characterization except 'Honorable,' the following statement shall appear as the first entry in Block 18 on the DD Form 214: 'CONTINUOUS HONORABLE ACTIVE SERVICE FROM (applicable date) UNTIL (applicable date).'

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(1) The 'from' date shall be the date of initial entry into active duty, or the first day of service for which a DD Form 214 was not previously issued, as applicable.

(2) The 'until' date shall be the date before commencement of the current enlistment.

Department of Defense Instruction 1336.01, Enclosure 3, ' 3(j) (Aug. 20, 2009); Army Regulations 635‑8 ' 5‑6(r)(4)(b) (Feb. 10, 2014).

Under the Bonus Law, any person aggrieved by a decision of the Treasurer in the matter of payments provided under the Bonus law may appeal to the Board. St. 2005, c. 167, ' 4.

FACTUAL BACKGROUND

Espinosa served on active duty in the United States Army from November 9, 2004 until February 19, 2016, including a tour of duty in Afghanistan as part of one of the operations identified in the Bonus Law.[2] Espinosa was honorably discharged on January 31, 2008 and February 10, 2015, and after each of these discharges, he immediately reenlisted. Espinosa was finally discharged on February 19, 2016, "under other than honorable conditions," as reflected in his Form DD‑214.

Machado served on active duty in the United States Army from March 7, 2011 until September 12, 2014. On December 18, 2012, he was deployed to Afghanistan until August 23, 2013 as part of one of the operations identified in the Bonus Law. In order to deploy, Machado elected to extend his Army enlistment. While in Afghanistan, Machado re‑enlisted. Machado was finally discharged on September 12, 2014, "under other than honorable conditions," as reflected in his Form DD‑214.

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[2]The Court understands the term "enlistment' refers to be the period of time during which a military member commits himself to military service in an enlistment agreement. The phrase "tour of duty," by contrast, means the period of time spent by a service member in combat or in a hostile environment.

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Santos served on active duty in the United States Army from September 15, 2004 until February 10, 2012, including a deployment in Afghanistan as part of one of the operations identified in the Bonus Law. Santos was discharged honorably on April 23, 2007 and October 8, 2007, and after each, immediately reenlisted. Santos was finally discharged on February 10, 2012, "under other than honorable conditions," as reflected in his Form DD‑214.[3]

All three plaintiffs applied for benefits under the Bonus Law. The Board denied the plaintiffs' applications because the plaintiffs' Form DD‑214s stated that they were discharged "under other than honorable conditions." The Board concluded that to receive benefits under the Bonus Law, a veteran must demonstrate service "under honorable conditions"; that where the military has issued a Form DD‑214, the description provided in the "character of service" section is dispositive for purposes of providing any benefits under the Bonus Law;[4] that the "character of service" designation applies to whatever period of service is printed in the "Record of Service" section of the form; and that the characterization in "character of service" box supersedes any prior characterizations made by the military during the period of service reflected in the "Record of Service." In support, the Board cites to Department of Defense Instruction 1332.14, Enclosure 4, ' 3(b)(3), which states that "characterization will be determined solely by the enlisted Service member's military record during the current enlistment or period of service to which the separation pertains" (emphasis added). Despite this language, the Board determined that "the period of service to which the separation pertains" is that entire period listed in the

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[3]Under the Department of Defense Instruction 1336.01, Enclosure 3, ' 3(j) (Aug. 20, 2009) and Army Regulations 635‑8 ' 5‑6(r)(4)(b) (Feb. 10, 2014) cited above, Santos' Form DD‑214 correctly lists his continuous honorable active service as being from September 15, 2004 to October 8, 2007. Machado's Form DD‑214 fails to note the period of his honorable service. Espinosa's Form DD‑214 states an incorrect "until" date for his continuous honorable service.

[4]The Board cites Department of Defense Instruction 1336.01, ' 4.3(f), which states that Form‑DD 214 is the "authoritative source of information required for the administration of State and Federal laws applicable to personnel who have been discharged."

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"Record of Service" section of Form DD 214, and that therefore the military had characterized the entirety of plaintiffs' service, including any reenlistment terms, as "other than honorable." Based on this, the Board concluded that the plaintiffs' earlier honorable discharges were not relevant for purposes of determining whether the plaintiffs were entitled to benefits under the Bonus Law.

The adjutant general played no role in making these determinations.

DISCUSSION

The Court may set aside a state agency's decision only on the grounds enumerated in G.L. c. 30A, ' 14. See Howard Johnson Co. v. Alcoholic Beverages Control Comm'n, 24 Mass. App. Ct. 487, 490 (1987). The Court thus reviews the decision to determine whether it was not supported by substantial evidence, was arbitrary or capricious, or was based on an error of law. G.L. c. 30A, ' 14(7); see also, ex., The Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010). A moving party bears a heavy burden of establishing that an agency's decision is invalid. See Merisme v. Board of Appeals on Motor Vehicle Policies and Bonds, 27 Mass. App. Ct. 470, 474 (1989); Mass. Ass'n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 263‑64 (2001). In is review, the Court gives due weight to the "experience, technical competence, and specialized knowledge of the agency" and the discretionary authority conferred upon it, see G. L. c. 30A, ' 14(7), and will not substitute its judgment for that of the agency. Southern Worcester Cnty. Reg'l Coy. Sch. Dist. v. Labor Relations Comm'n, 386 Mass. 414, 420‑21 (1982).

As to issues of law, the Court "grant[s] deference to the interpretations administrative agencies make of the statutory scheme that they administer, "but "generally review[s] an agency's interpretation of law de novo." Trustees of Health & Hosps. of the City of Boston. Inc.

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v. Massachusetts Comm'n Against Discrimination, 65 Mass. App. Ct. 329, 333 (2005) (citations omitted), aff=d sub nom. Trustees of Health & Hosps. of City of Boston, Inc. v. Massachusetts  Comm'n Against Discrimination, 449 Mass. 675 (2007); see also Buchanan v. Contributory Ret.  Appeal Bd., 65 Mass. App. Ct. 244, 246 (2005) (citations omitted). The applicable principle is one of deference, not abdication, and the Court may overrule an agency's interpretation of the law when it is contrary to the plain language of a statute and its underlying purpose. Leopoldstadt, Inc. v. Commissioner of Div. of Health Care Finance and Policy, 436 Mass. 80, 91 (2002), citing Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997); see also Goldberg v. Board of Health, 444 Mass. 627, 633 (2005); Town of Wakefield v. Labor Relations Comm'n, 45 Mass App. Ct. 630, 633 (1998).

The primary issues in this case concern the Board's determinations that (1) the "character of service" designation on Form DD‑214 supersedes any prior characterizations made by the military, such as honorable discharges; and (2) if the service member has Form DD‑214, the Board will consider only that form when determining whether a service member was honorably discharged and therefore eligible for a bonus.

The core factual claims are not disputed. Each plaintiff served one or more enlistments that appear to qualify each plaintiff for benefits under the Bonus Law. At the end of at least one such enlistment, each plaintiff was, under military procedure, honorably discharged, but immediately re‑enlisted. No DD‑214 was issued following these discharges. None of the plaintiffs applied for bonuses at the time, largely C and critically C because they were overseas, and perhaps in the midst of a combat tour, when they re‑enlisted. After one or more further enlistments, each plaintiff was less than honorably discharged from their final enlistment with the military, and then applied for benefits. For instance, Espinosa was honorably discharged in

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December 2008 and December 2015 from evidently bonus‑qualifying enlistments for which he applied, immediately re‑enlisted, and was finally discharged on less than honorable terms in 2016, after a final enlistment. Despite the apparent, prior bonus‑qualifying enlistments from which Espinosa was honorably discharged, the Board denied all benefits for all enlistments.

The Board argues that because the plaintiffs were less than honorably discharged at the end of their final enlistment, they are ineligible under the Bonus Law for any benefits for any prior enlistment. The Board asserts that this Court must defer to its judgment that it only considers the DD‑214, and to the Board's interpretation of it, as the final word on whether a serviceperson was honorably discharged, and since the DD‑214's reflects a less than honorable discharge, the plaintiffs are ineligible for any bonus benefits arising from any enlistment. The Board's position is in error, for at least three reasons.

First, the Board's all‑or‑nothing approach to benefits under the Bonus Law C that a service member who has served a qualifying tour of duty in combat or otherwise cannot receive any benefits for any prior enlistment if he or she was dishonorably discharged at the end of the last one C is not found in the statute, but rather conflicts with it. St. 2005, c. 130, ' 16 as amended by St. 2005, c. 167, ' 4, provides benefits if three conditions are met: that the applicant (1) served in one of the named operations; (2) was domiciled in Massachusetts for at least six months before entry into service; and (3) was "discharged or released under honorable conditions for such service." "Such service" is not defined, but the Bonus Law on its face authorizes bonuses for service during one of the named military operations from which a service member was honorably discharged. Further, in 2011, the Legislature amended the Bonus Law to make it clear that the Legislature intended that each enlistment be considered as a separate qualifying event under the Bonus Law. That statute, St. 2011, c. 171, ' 3, states that a service member who

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is eligible to receive benefits under [the law] may receive such benefits; provided, however, that an eligible resident shall receive the full bonus allowed by said [law] upon return after his first deployment to the [qualifying military operation]. ... He shall thereafter receive 50 per cent of the bonus ... after each subsequent return from deployment to the [qualifying military operation].

St. 2011, c. 171, ' 3 (emphasis added). The Legislature provided for varying levels of payments per deployment C full benefits upon return from the first deployment and half‑benefits "after each subsequent return from deployment" C and thus plainly intended that the Board apply the Bonus law on a per‑enlistment basis, and not a per‑career basis. The Board's interpretation of the Bonus Law to prohibit payment for a deployment that ended in honorable discharge simply because the final deployment ended in a less‑than‑honorable discharge conflicts with this direction. This is particularly so considering nothing in the Bonus Law requires a service member to apply for the Bonus immediately upon an honorable discharge from an enlistment C and here, doing so was impossible for the plaintiffs because each was still serving the country as service members overseas. Further, the Board's argument that the benefits are only payable "upon application" does not make the final determination of veteran's status in the DD‑214 determinative, even were the Board's interpretation of the DD‑214 correct. That language simply means that a veteran [5] must apply to get benefits, but it does not prohibit him or her from arguing that earlier enlistments qualify for payment of benefits under the statute. If it meant what the Board claims, then a military person who enlists while overseas faces a hurdle in having to apply for benefits as soon as the enlistment ends to protect his/her interests, a requirement not

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[5]The Board also erroneously argued that the term "veteran" as used in the Bonus Law should be defined as it is under G.L. c. 4, '7, clause 43, which requires an honorable discharge. The Bonus Law provides benefits to "each person who shall have served in the armed forces of the United States in active service as part of part of Operation Enduring Freedom, Operation Iraqi Freedom, Operation Noble Eagle, Operation Inherent Resolve, Operation Freedom Sentinel or any successor or related operation." Its subsequent use of the phase 'such veteran" refers to these individuals. "Veteran" under G.L. c. 4, '7, clause 43, means service member who provided "wartime service," defined to include service during other conflicts C but not those operations identified in the Bonus Law. The Board's reading, then, would eviscerate the Bonus Law.

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found in the statute. That erroneous reading would yield unjust results. A service member who is discharged from an enlistment and returns home from a combat duty could apply for and receive benefits, even if he or she later re‑enlists and is subsequently less than honorably discharged. By contrast, a service member C like the plaintiffs here C who are discharged while serving in a hostile environment but remain in that environment and immediately re‑enlist, and who therefore delays applying for benefits for the just‑completed enlistment, lose the opportunity to ever receive benefits for that qualifying enlistment if they are later less than honorably discharged. The Bonus Law was designed to reward service to the country. The Board's reading would penalize such service for military members who voluntarily remain in combat, a result at odds with the Legislature's intent.

Second, the Board's determination that the DD‑214, and the Board's interpretation of it, is final also conflicts with the Bonus Law. The Bonus Law expressly states that the DD‑214 "or equivalent documentation as determined by the adjutant general" is to be provided to the adjutant general in determining eligibility, and that it is the adjutant general, and not the Board, who is authorized under the Bonus Law to certify relevant military information to the Board. See St. 2005, c. 167, ' 4 ("adjutant general shall certify to the state treasurer the dates of service and any other military information necessary to carry out the provisions of this act."). The DD‑214 is therefore not the final word on eligibility for benefits under the Bonus Law, and in these cases, the adjutant general made no certification as to any of the military information on which the Board relied. When asked about this provision of law at argument, counsel for the Board argued that Court should "ignore" the law. It is highly inappropriate for any lawyer, much less the Attorney General, to suggest a Court to ignore the law. It is fatal when a state agency takes such a position. The Board's position on this point was also arbitrary and capricious. In its brief and

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in its decision in Machado's case, the Board recognized that there would be no DD‑214 when a service member was discharged and then re‑enlisted, but such a person could still apply for benefits without this supposedly‑necessary and determinative document. See Memorandum, at 15‑16, n. 15; AR, at 297, 299. The Board's concession that other military forms can substitute for the DD‑214 demonstrates that insistence on that form in these cases was arbitrary and capricious. For all of these reasons, the Board erred as a matter of law when it determined, on its own, that it would rely solely on the DD‑214 and its own reading of it.