Kenneth Haselwander v. John McHugh ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2014 Decided December 19, 2014
No. 12-5297
KENNETH HASELWANDER,
APPELLANT
v.
JOHN M. MCHUGH, SECRETARY OF THE ARMY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01190)
Michael D.J. Eisenberg argued the cause and filed the
briefs for appellant.
R. Craig Lawrence, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and John J. Gowel, Assistant
U.S. Attorney.
Before: GRIFFITH, Circuit Judge, PILLARD, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
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EDWARDS, Senior Circuit Judge: Appellant Kenneth
Haselwander is a veteran of the United States Army, who
served during the Vietnam War and was honorably discharged
in 1974. During his tour of duty in Vietnam, Haselwander was
wounded and knocked unconscious when an enemy rocket
exploded near his sleeping quarters. He was picked up by
medical personnel and treated for shrapnel wounds. He was
then called back to duty as soon as he had been bandaged, so
those who attended to his wounds never had a chance to fill
out any medical paperwork for Haselwander. As a result,
Haselwander’s Army records do not show that he was
wounded in hostile action.
In March 2007, Haselwander filed an application with the
Army Board for Correction of Military Records (“ABCMR”
or “Board”) to correct his military records so that he could
receive the Purple Heart. This military decoration is awarded
in the name of the President of the United States to any
member of the Armed Forces who is wounded or killed in
action. A service member is entitled to the Purple Heart, i.e.,
without being recommended, upon meeting specific criteria.
Army Reg. 600-8-22 ¶¶ 2–8(c), 2–8(k)(3) (2006) (providing
that a service member will be awarded the Purple heart if (1)
wounded, injured, or killed in hostile action, terrorist attack,
or friendly fire, (2) the wound or injury required medical
treatment, and (3) “the records of medical treatment . . . have
been made a matter of official Army records”). Haselwander
has never been given the Purple Heart because his Army
medical records do not show that he was wounded in hostile
action. His application to the ABCMR sought to remedy this
situation.
In his initial application to the Board, Haselwander
provided references who could corroborate his story, along
with photographs taken at the time when he was wounded
3
showing him with bandages on his face and shoulder and
wearing a dispensary-issued scrub top. The Board rejected the
application, stating that Haselwander had failed to show that
he had been “treated for a wound that was sustained as the
result of enemy action.” ABCMR R. of Proceedings in the
Case of Haselwander, Kenneth R. at 4 (Sept. 13, 2007) (the
“2007 Decision”), reprinted in J.A. 66–70. Haselwander then
filed a petition for reconsideration, which included a letter
from another veteran who was also wounded and treated at
the same time and official reports from his Brigade and
Platoon units detailing the events on the day when he was
wounded. The Board denied Haselwander’s application for
reconsideration. ABCMR R. of Proceedings in the Case of
Haselwander, Kenneth R. (Oct. 6, 2009) (the “2009
Decision”), reprinted in J.A. 42–44. The Board’s decision on
reconsideration contains two critical findings: (1) “The letters
of support submitted with [Haselwander’s] request for
reconsideration clearly state that the applicant was wounded
in action”; (2) “The photographs that reportedly show the
applicant’s wounds bandaged are insufficient as a basis for
award of the Purple Heart. There is no available medical
record to corroborate the photographs.” Id. at 44 (emphasis
added). On the basis of these findings, the Board concluded
that the evidence was insufficient to support Haselwander’s
claims for relief. Id.
Haselwander sought review in the District Court.
Haselwander v. McHugh, 878 F. Supp. 2d 101, 103 (D.D.C.
2012). On cross-motions for summary judgment, the District
Court granted the Secretary’s motion and denied
Haselwander’s motion. Id. Haselwander now appeals. He
points out that the undisputed evidence in the record shows
that he was injured in an enemy attack on June 6, 1969, and
that he was treated for his wounds by members of the Army
medical staff. On the basis of this evidence, Haselwander
4
claims that his medical records should be corrected and he
should be awarded the Purple Heart. The Secretary’s response
rests on two contentions: First, the Secretary asserts that
Haselwander has waived his request for correction of his
medical records because he “did not identify medical records
to be changed, how those documents should be changed, nor
indicate what treatment the documents should say he received
or what medical officer treated him.” Br. for Appellee at 31.
Second, the Secretary argues that the Board’s decision that
Haselwander is not entitled to the Purple Heart should be
upheld because he has no medical records of his injury and
treatment.
The Secretary’s waiver argument is a red herring. This
claim was never raised with the District Court, so it has been
forfeited. Furthermore, the Board’s decision rejecting the
petition for reconsideration did not rest on any finding that
Haselwander had asked for the wrong record to be corrected
or that he failed to raise a request for correction to his medical
records. In sum, the Secretary’s waiver argument is
groundless.
On the merits, we find that the Board’s decision defies
reason and is devoid of any evidentiary support. We therefore
vacate the decision because it is arbitrary and capricious.
Morall v. DEA, 412 F.3d 165, 180 (D.C. Cir. 2005). The
Board held that the photographs submitted by Haselwander,
without more, were insufficient to support his claim.
Haselwander’s claim, however, does not rest exclusively on
photographs. Indeed, the Board specifically found that “[t]he
letters of support submitted with [Haselwander’s] request for
reconsideration clearly state that the applicant was wounded
in action.” 2009 Decision at 3, J.A. 44 (emphasis added). And
the Board did not otherwise discredit any of the evidence
submitted by Haselwander. Thus, it is apparent that the sole
5
basis for the Board’s rejection of Haselwander’s claim is its
finding that “[t]here is no available medical record to
corroborate the photographs.” Id. (emphasis added).
The Board misapprehends its powers and duties as a
record correction body when it denies an application because
the applicant’s records are incomplete. The void in
Haselwander’s medical records is the very error that he seeks
to have corrected so that he can secure the Purple Heart to
which he is entitled. The Board’s reasoning in this case is
utterly illogical, United States v. Morgan, 393 F.3d 192, 200
(D.C. Cir. 2004), and patently unfair; therefore, the Board’s
judgment against Haselwander is “unworthy of any
deference.” Coburn v. McHugh, 679 F.3d 924, 926 (D.C. Cir.
2012). Haselwander’s requests for a correction of his military
record and an award of the Purple Heart are supported by
uncontested, creditable evidence. We therefore reverse the
judgment of the District Court and vacate the decision of the
Board. The case will be remanded to the District Court with
instructions to remand the case to the ABCMR “for a prompt
disposition of this matter consistent with this opinion.”
Morall, 412 F.3d at 184.
I. BACKGROUND
A. The ABCMR
The Secretary of the Army, acting through the ABCMR,
is authorized to correct any Army military record when he
“considers it necessary to correct an error or remove an
injustice.” 10 U.S.C. § 1552(a)(1). “Military record” is
defined broadly to include:
[A] document or other record that pertains to (1) an
individual member or former member of the armed
6
forces, or (2) at the discretion of the Secretary of the
military department concerned, any other military matter
affecting a member or former member of the armed
forces, an employee or former employee of that military
department, or a dependent or current or former spouse of
any such person.
Id. § 1552(g).
An application for correction of a military record is
considered by a panel of at least three Board members.
32 C.F.R. § 581.3(e)(3)(i). The Board members are charged
with the responsibility to first “[r]eview all applications that
are properly before them to determine the existence of error or
injustice.” Id. § 581.3(b)(4)(i). The Board will recommend a
correction if it determines that “the preponderance of the
evidence shows that an error or injustice exists” in an
applicant’s records. Id. § 581.3(e)(3)(iii)(A). A denial of an
application is a final action of the Board.
Id. § 581.3(g)(2)(i)(A). An applicant may request
reconsideration of a denial within one year of the Board’s
original decision. Id. § 581.3(g)(4)(i).
B. The Purple Heart Decoration
As noted above, an Army veteran is entitled to the Purple
Heart when he or she suffers a
[1] wound, injury or death [as a] result of enemy or
hostile act; . . . [2] the wound or injury . . . required
treatment by medical officials; and [3] the records of
medical treatment . . . have been made a matter of official
Army records.
7
Army Reg. 600-8-22 ¶ 2–8(k)(3). The Army Regulations
define “wound” as:
[A]n injury to any part of the body from an outside force
or agent sustained under one or more of the conditions
listed above. A physical lesion is not required, however,
the wound for which the award is made must have
required treatment by medical personnel and records of
medical treatment for wounds or injuries received in
action must have been made a matter of official record.
Id. at ¶ 2–8(e). An example of an injury that “clearly
justif[ies] award of the Purple Heart” is “[i]njury caused by
enemy bullet, shrapnel, or other projectile created by enemy
action.” Id. at ¶ 2–8(g)(1).
C. Facts and Procedural History
1. Haselwander’s Military Service
The record evidence proffered by Haselwander in support
of his requested record correction was as follows: In March of
1968, Haselwander commenced his military service with the
Army. In January 1969, he deployed to Vietnam as a
veterinarian specialist and was assigned to the 49th Infantry
Scout Dog Platoon of the 199th Light Infantry Brigade. On
June 6, 1969, at Camp Frenzell-Jones, a rocket exploded next
to his tent as he slept. Haselwander was blown through the
walls of his tent and knocked unconscious. He regained
consciousness on the ground outside and then ran to a bunker
for cover. Two medics saw him and – as he was apparently
covered in blood – immediately took him to the dispensary.
Once there, they began removing shrapnel from his wounds.
8
As Haselwander’s wounds were being cleaned and
bandaged, members of his scout dog platoon found him and
told him that some of their dogs had also been injured in the
blast. Haselwander left immediately after being treated by the
medical personnel to attend to the dogs. Because he left
promptly after receiving treatment, members of the medical
staff did not fill out any paperwork on Haselwander’s injuries
and treatment. He flew with one of the seriously injured scout
dogs to the veterinary hospital at Tan Son Nhut Airbase,
where he stayed for a few days before returning to Camp
Frenzell-Jones.
Haselwander continued his service until he was released
from active duty and returned to the United States on January
1, 1970. He was honorably discharged on March 1, 1974.
Haselwander has never received the Purple Heart for the
wounds he suffered from enemy fire. Another member of his
unit, however, who was also wounded as a result of the rocket
blast and who was treated alongside Haselwander, was
awarded the Purple Heart.
2. Haselwander’s Application to the ABCMR
Haselwander filed an application with the ABCMR
through his U.S. Senator on March 16, 2007. Appl. for
Correction of Military R. Under the Provisions of Title 10,
U.S. Code, Section 1552, Kenneth Haselwander (Mar. 16,
2007) (“Haselwander Application”), reprinted in J.A. 76–77.
The application is a one-page form questionnaire with limited
space to provide answers. Haselwander filled out and
submitted the form without the assistance of counsel. Br. of
Appellant at 19. In response to the form question, “I request
the following error or injustice in the record to be corrected,”
he wrote: “I need my 00214 [military discharge form]
corrected to reflect that I received a purple heart.”
9
Haselwander Application, J.A. 76. Haselwander attached a
statement describing “[t]he particular circumstances of [his]
being wounded.” Id. at 77. The statement describes the events
of the rocket attack and Haselwander’s medical treatment, and
it further explains that “the medics never got the chance to fill
out any paperwork on me.” Id. Haselwander also stated that
another member of his unit, Jim VanSyckle, was wounded
and treated in the dispensary at the same time, and that Mr.
VanSyckle received a Purple Heart for his wound. In addition
to his statement, Haselwander provided the names of three
fellow veterans, including Mr. VanSyckle, who could
corroborate his statement, and photographs taken of him
shortly after the explosion. The photographs show
Haselwander with bandages on his cheek, chin, and shoulder.
J.A. 53.
The Board denied Haselwander’s application. 2007
Decision at 4, J.A. 69. In its decision against Haselwander,
the Board concluded that, “[u]nfortunately, there is no
available evidence of record to show that the applicant was
treated for a wound that was sustained as the result of enemy
action. Therefore, there is no basis for award of the Purple
Heart.” Id.
3. Haselwander’s Request for Reconsideration
Haselwander timely filed a request for reconsideration of
the Board’s decision. He also provided additional evidence:
two letters from fellow soldiers corroborating that
Haselwander was injured in the rocket blast and treated by
medical personnel, a Form 1594 Daily Staff Journal or Duty
Officer’s Log of the 199th Infantry Brigade dated June 6,
1969 (“Daily Staff Journal”), and a USARV Form 382,
Monthly Report of Scout Dog Operations dated July 7, 1969
10
(“Monthly Report”). His original application and statement
were incorporated by reference.
One letter accompanying the application for
reconsideration is authored by Mr. James VanSyckle, the
member of Haselwander’s unit who was medically treated at
the same time as Haselwander. The letter states:
I was a dog handler with the 49th Scout Dog Platoon
when we were hit with a 122 mm rocket round on June 6,
1969. The rocket hit at the front of our living quarters in
which Ken Haselwander and myself were both injured
and taken to the 199th Clinic for treatment. If I remember
right Ken was wounded in the face and neck area and
treated and released at the 199th Clinic, I was taken to the
hospital.
J.A. 45. The second letter is from Mr. Richard Hullender, also
a member of Haselwander’s Scout Dog Platoon. He was
present on June 6, 1969, when the rocket hit their compound.
His letter reiterates that Haselwander was “blown from his
bunk and was injured.” Id. at 47.
The Daily Staff Journal of the 199th Infantry Brigade,
dated June 6, 1969, provides the “facts concerning the
rocketing of Camp Frenzell-Jones and Ho Nai Village.” Id. at
50. The entry states that Camp Frenzell-Jones received three
122mm rocket rounds. Id. It lists as among the U.S. injuries:
two from the 49th Scout Dog Platoon wounded in hostile
action, though neither one seriously; one was evacuated to the
hospital. Id. It also notes that the 49th Scout Dog Platoon had
two dogs wounded. Id. It does not give the names of the
injured. The Monthly Report of Scout Dog Operations for the
month of June, dated July 7, 1969, states that it had two
handlers wounded in action during the month. Id. at 52.
 11
On October 6, 2009, the Board denied Haselwander’s
application for reconsideration. 2009 Decision at 3, J.A. 44.
After recounting the evidence, the Board rendered the
following decision:
1. The applicant contends that he should be awarded the
Purple Heart for wounds received as a result of enemy
action.
2. The letters of support submitted with this request for
reconsideration clearly state that the applicant was
wounded in action.
3. The photographs that reportedly show the applicant’s
wounds bandaged are insufficient by themselves as a
basis for award of the Purple Heart. There is no available
medical record to corroborate the photographs.
4. Unfortunately the available evidence is not sufficiently
substantiating to show that the applicant was wounded as
the result of hostile action, that he received medical
treatment for any such wound, and that such medical
treatment was made a matter of official record.
5. In view of the above, the applicant’s request should be
denied.
Id.
Haselwander then filed suit in the District Court seeking
review of the Board’s decision. Haselwander, 878 F. Supp. 2d
at 103. On cross-motions for summary judgment, the District
Court granted the Secretary’s motion and denied
Haselwander’s motion. Id.
12
II. ANALYSIS
A. Standard of Review
Three principles guide our review of this appeal. First,
“[o]n review of a district court’s grant of summary judgment
in connection with the appeal of a decision of the ABCMR,
we review the ABCMR’s decision de novo,” and with “no
particular deference to the judgment of the District Court.”
Coburn, 679 F.3d at 929 (alteration in original) (citation and
internal quotation marks omitted).
Second, under section 706(2) of the Administrative
Procedure Act (“APA”), this court shall “set aside” the
ABCMR’s “action, findings, and conclusions” regarding the
correction of military records if they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see also Kreis v.
Sec’y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)
(“decisions of the Board are reviewable under the APA, albeit
by an unusually deferential application of the ‘arbitrary or
capricious’ standard”). The Secretary has broad discretion in
administering the correction of military records. Kreis, 866
F.2d at 1514. However, the Board’s action must be supported
by “reasoned decisionmaking.” Allentown Mack Sales &
Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998) (quoting Motor
Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 52 (1983) (internal quotation marks
omitted)). If the Board’s “explanation for its determination
. . . lacks any coherence,” the court “owe[s] no deference to
[the Board’s] purported expertise because we cannot discern
it.” Tripoli Rocketry Ass’n, Inc. v. Bureau of Alcohol,
Tobacco, Firearms, & Explosives, 437 F.3d 75, 77 (D.C. Cir.
2006); see also Coburn, 679 F.3d at 926 (finding that because
13
the Board’s decisions were “largely incomprehensible,” they
were “unworthy of any deference”).
Third, “when a [military records] correction board fails to
correct an injustice clearly presented in the record before it, it
is acting in violation of its [statutory] mandate [under
10 U.S.C. § 1552]. And such a violation, contrary to the
evidence, is arbitrary and capricious.” Yee v. United States,
512 F.2d 1383, 1387 (Ct. Cl. 1975); see also Caddington v.
United States, 178 F. Supp. 604, 607 (Ct. Cl. 1959) (“We feel
that the Secretary and his boards have an abiding moral
sanction to determine, insofar as possible, the true nature of
an alleged injustice and to take steps to grant thorough and
fitting relief.”).
Applying these principles to the case at hand, we
conclude that the Board failed to fulfill its statutory mandate
and that the denial of Haselwander’s application was arbitrary
and capricious.
B. Haselwander’s Request for Correction of His Medical
Records Was Properly Raised Before the Board
The Secretary argues in his brief on appeal that,
“[b]ecause Mr. Haselwander never requested that the
ABCMR amend his medical records, it is improper for him to
raise this issue here.” Br. for Appellee at 28; see also id. at
28–29 (citing Coburn, 679 F.3d at 930–31). We disagree. The
error and injustice in Haselwander’s record – the omitted
documentation of his wounds sustained in hostile action and
medical treatment of those wounds – were clearly before the
Board. See Yee, 512 F.2d at 1386–87 (identifying the Board’s
duty to remove injustices when they are clearly evidenced in
the record, even if not specifically requested by the applicant).
14
There is “a general rule that courts should not topple over
administrative decisions unless the administrative body not
only has erred but has erred against objection made at the
time appropriate under its practice.” United States v. L.A.
Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952). However,
even if specific arguments are not expressly made to an
agency, they may still be raised on appeal if the agency
“reasonably should have understood the full extent of [the
petitioner’s] argument.” Customs and Border Prot. v. Fed.
Labor Relations Auth., 751 F.3d 665, 669–70 (D.C. Cir.
2014) (citing NetworkIP, LLC v. FCC, 548 F.3d 116, 122
(D.C. Cir. 2008) (stating that, although an agency must have
an “opportunity to pass” on an issue prior to judicial review,
the “issue need not be raised explicitly; it is sufficient if the
issue was ‘necessarily implicated’ in agency proceedings”));
see also Yee, 512 F.2d at 1386 (finding that the Board
“misse[d] the true intent of plaintiff’s appeal” where it only
addressed the specific request made and failed to fully correct
the injustice clearly in the record before it).
Furthermore, the name of the Board – the Army Board for
Correction of Military Records – speaks volumes. As the
name suggests, the Board’s members have the duty to
“[r]eview all applications that are properly before them to
determine the existence of error or injustice.”
32 C.F.R. § 581.3(b)(4)(i) (emphasis added). The Secretary
seeks to avoid this duty here by arguing to this court that
Haselwander never requested the ABCMR to correct his
Army records. This contention is groundless. First, because
the argument was never raised with the District Court, it has
been forfeited. See Singleton v. Wulff, 428 U.S. 106, 120
(1976) (holding that “[i]t is the general rule . . . that a federal
appellate court does not consider an issue not passed upon
below”). Second, the Board’s decision rejecting the petition
for reconsideration does not rest on any finding that
15
Haselwander failed to request that the ABCMR amend his
medical records. Third, the record before the Board, including
Haselwander’s application and supporting materials, makes it
clear that Haselwander’s application sought to correct his
military records so that he could receive the Purple Heart.
Although the Secretary’s so-called “waiver” argument has
been forfeited, we will address it because it is inextricably
tied to Haselwander’s claim on the merits.
There is no doubt that Haselwander needed a correction
to his medical records in order to be eligible for the Purple
Heart, and there is no doubt that he knew this when he filed
his application with the Board. The supporting statement that
he filed with his application quite clearly indicates that an
error in his medical record was preventing him from receiving
the Purple Heart. The statement says, in pertinent part: “The
medics took me to the camp’s dispensary where they treated
my wounds, pulling out the shrapnel and cleaning out my
wounds, and bandaging me up. . . . [T]he medics never got the
chance to fill out any paperwork on me.” Haselwander
Application, J.A. 77 (emphasis added). In other words,
Haselwander plainly stated that his medical records were
insufficient as they stood to allow him to receive the Purple
Heart. Therefore, it was obvious that he needed his medical
records corrected in order to get the Purple Heart.
In the materials accompanying his application and his
petition for reconsideration, Haselwander gave the Board the
information that it needed to correct his medical records. He
provided a letter from Mr. James VanSyckle, which
corroborates Haselwander’s statement that he suffered
wounds in hostile action, and that his wounds required
medical treatment. See J.A. 45 (“Ken Haselwander and
myself were both injured and taken to the 199th Clinic for
treatment.”). The letter’s description of Haselwander’s
16
injuries also corroborates the photographs, which show him
with bandages on his face. He also submitted official reports
from his Brigade and Platoon units detailing the events on the
day when he was wounded.
In light of Haselwander’s application, statement, and
supporting documentation, the Board “reasonably should have
understood” that the error in his records was the missing entry
of his medical treatment for wounds sustained in enemy
action. Customs and Border Prot., 751 F.3d at 669–70.
Indeed, given the record in this case, it is inconceivable that
the Board did not comprehend that Haselwander’s application
included a request to correct his medical record so that he
would be eligible for the Purple Heart. The Board has been
sanctioned “to determine, insofar as possible, the true nature
of an alleged injustice and to take steps to grant thorough and
fitting relief,” Caddington, 178 F. Supp. at 607, and its
principal function is “to correct an injustice clearly presented
in the record before it,” Yee, 512 F.2d at 1387. In light of
these statutory responsibilities, the Secretary’s arguments to
this court cannot possibly justify the action under review.
Finally, the Secretary’s reliance on Coburn v. McHugh is
misplaced. In that case, the court merely refused to address
one of Coburn’s claims because it had not been raised in the
first instance with the ABCMR. This case is far different from
Coburn. As noted above, Haselwander’s application before
the Board included a request to correct his medical record so
that he would be eligible for the Purple Heart. His appeal to
this court focuses on precisely the same issue. The fact that
Haselwander referenced a discharge form when he submitted
his initial application is immaterial. The Board had an
obligation to “determine the existence of error or injustice,”
32 C.F.R. § 581.3(b)(4)(i), and it had good reason in light of
the record before it to understand what Haselwander was
17
seeking. Any confusion regarding Haselwander’s application
was surely cleared up when he submitted his application for
reconsideration, for the Board found that “[t]he letters of
support submitted with [Haselwander’s] request for
reconsideration clearly state that the applicant was wounded
in action.” J.A. 44 (emphasis added). The obvious “error” in
this case is the void in Haselwander’s medical record; the
obvious “injustice” is that the void in Haselwander’s medical
record has prevented him from receiving the Purple Heart to
which he is entitled. The Board’s failures are thus manifest.
C. The Board’s Denial of Haselwander’s Request for
Correction to His Military Records Was Arbitrary and
Capricious
In his brief to this court, Haselwander presses two
arguments:
The ABCMR failed to uphold its duty under
[10 U.S.C.] § 1552 and [32 C.F.R. § 581.3(b)(4)(i), (ii)],
and acted arbitrarily, capriciously, [and] contrary to law
. . . when [it] 1) failed to correct the Veteran’s medical
records to reflect the Veteran’s injury and treatment at the
199th Clinic in Vietnam on June 6, 1969, as shown by
substantial evidence; and 2) when it failed to find that the
Veteran was entitled to a Purple Heart [a]ward, as shown
by substantial evidence.
Br. of Appellant at 12. These are compelling concerns. To the
extent that the Board’s decision might be viewed as based on
the want of factual support for the contention that
Haselwander was wounded in action or that he received
medical attention, it cannot be squared with the record before
us. Indeed, the Board’s decision is “stunningly” myopic and
devoid of reasoned decisionmaking. Morall, 412 F.3d at 167.
18
Because the Board’s decision is “largely incomprehensible,”
we are obliged to reverse the decision and remand the case to
the Board for proper consideration of Haselwander’s
application. Coburn, 679 F.3d at 926. Our reasons are
explained below.
After the Board denied Haselwander’s initial application,
he requested reconsideration and provided additional evidence
to support his claim: two letters from fellow soldiers
corroborating that Haselwander was injured in the rocket blast
and treated by medics; a Daily Staff Journal of the 199th
Infantry Brigade dated June 6, 1969, describing the facts of
the bombing, which states that two soldiers from
Haselwander’s scout dog platoon were wounded in action;
and a Monthly Report of Scout Dog Operations, which states
that two soldiers from Haselwander’s scout dog platoon were
injured in the month of June. J.A. 45–52. The evidence
provided with his original application was incorporated by
reference.
The Board never found that any of the evidence
submitted by Haselwander lacked credibility. Nor did the
Board find that Haselwander failed to prove that he was
wounded and that he received medical treatment. Tellingly,
the Board’s decision denying Haselwander’s application for
reconsideration rested solely on two findings:
2. The letters of support submitted with this request for
reconsideration clearly state that the applicant was
wounded in action. [(“Paragraph Two”).]
3. The photographs that reportedly show the applicant’s
wounds bandaged are insufficient by themselves as a
basis for award of the Purple Heart. There is no
19
available medical record to corroborate the
photographs. [(“Paragraph Three”).]
J.A. 44. Paragraph Four of the Board’s decision says:
“Unfortunately the available evidence is not sufficiently
substantiating to show that the applicant was wounded as the
result of hostile action, that he received medical treatment for
any such wound, and that such medical treatment was made a
matter of official record.” Id. This paragraph, however, is
merely a rote recitation of the requirements of the Purple
Heart award, in contrast to the specific findings in Paragraphs
Two and Three. Indeed, when pressed at oral argument,
Counsel for the Secretary conceded that only Paragraphs Two
and Three purport to reflect the Board’s findings in this case.
Counsel also conceded that Paragraph Four is nothing more
than “boilerplate” language, parroting the requirements for the
Purple Heart, not findings based on the record.
The Board’s decision runs in circles. Paragraph Two
states that “[t]he letters of support submitted with
[Haselwander’s] request for reconsideration clearly state that
the applicant was wounded in action.” Paragraph Three first
states that “[t]he photographs that reportedly show the
applicant’s wounds bandaged are insufficient by themselves
as a basis for award of the Purple Heart.” That is certainly
true enough – Haselwander does not claim that the
photographs of a bandaged soldier alone warrant his award of
the Purple Heart. But that is not all that he submitted. The
second sentence in Paragraph Three says that “[t]here is no
available medical record to corroborate the photographs.”
This is a non sequitur. It simply makes no sense for the Board
to say, “We are denying his application because he has no
medical records,” where the very error stated in
Haselwander’s application to the Board was that his Army
20
record lacks the medical records of his injury and treatment
on June 6, 1969.
The Board did not suggest, and the Secretary does not
contend on appeal, that they lack the authority to correct
Haselwander’s medical records. The expansive statutory
definition of “military record” – “a document or other record
that pertains to (1) an individual member or former member
of the armed forces, or (2) at the discretion of the Secretary of
the military department concerned, any other military matter
affecting a member or former member of the armed forces” –
establishes that the Board clearly has the authority to correct
Haselwander’s medical records if they contain an error or
injustice. 10 U.S.C. § 1552(g). It is even more noteworthy
that the Secretary does not contend that the evidence
furnished by Haselwander is insufficient to justify a
correction of his medical records and an award of the Purple
Heart.
In light of the record, we find that the Board’s “decision
is utterly unreviewable and simply lacks reasons that a court
can measure against the arbitrary or capricious standard of the
APA. Kreis, 866 F.2d at 1514–15. Where, as here, an
agency’s explanation for its determination lacks any
coherence, we owe no deference to [the Board’s] purported
expertise. Tripoli Rocketry Ass'n, Inc., 437 F.3d at 77.”
Coburn, 679 F.3d at 934 (alterations and internal quotation
marks omitted). Haselwander proffered undisputed, creditable
evidence to support his application before the Board. In
response, the Board rendered a decision that is “largely
incomprehensible” and, thus, “unworthy of any deference.”
Id. at 926.
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III. CONCLUSION
For the reasons given above, we reverse the judgment of
the District Court and vacate the decision of the Board. The
case will be remanded to the District Court with instructions
to remand the case to the ABCMR for further proceedings
consistent with this opinion.
So ordered.