Haselwander v. McHugh , 878 F. Supp. 2d 101 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KENNETH HASELWANDER, )
)
Plaintiff, )
)
v. ) Civil Case No. 10-1190 (RJL)
)
JOHN M. McHUGH, )
)
Defendant. )
tv-
MEMORANDUM OPINION
(July (k, 2012) [#11 and #17]
Plaintiff Kenneth Haselwander ("plaintiff' or "Haselwander") brings this action
against Secretary of the Army John N. McHugh ("defendant" or "McHugh"), seeking a
review pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., of
the decision of the Army Board for Correction of Military Records ("ABCMR") denying
his request for an award of the Purple Heart. Before the Court are the parties'
cross-motions for summary judgment. After due consideration of the pleadings, relevant
law, and the administrative record herein, the Court hereby GRANTS the defendant's
Motion for Summary Judgment and DENIES plaintiffs Cross-Motion for Summary
Judgment.
BACKGROUND
On March 18, 1968, the plaintiff entered active duty in the United States Army as a
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veterinarian specialist. Compl. ~ 5, ECF No. 1. Deployed to Vietnam in early January
1969, plaintiff was originally assigned to be a veterinary technician for the 39th Infantry
Scout Dog Platoon of the 173rd Airborne Brigade during his service in Vietnam. !d.~ 6;
Administrative Record ("AR") at 28, ECF No. 10. However, on January 21, 1969,
plaintiffwas transferred to the 49th Infantry Scout Dog Platoon, of the 199th Light
Infantry Brigade, where he worked as a veterinary technician for the next six months.
Compl. ~ 7. Plaintiff was reassigned to the 44th Medical Brigade on August 3, 1969, and
returned to the United States from Vietnam on January 1, 1970. !d.`` 7, 13; AR at 28,
69. Plaintiff was released from active duty a few days after his return. Compl. ~ 13; AR
at 29, 49.
Thirty-seven years later, in April 2007, plaintiff submitted an application to the
ABCMR to correct his military record. AR at 37-39. More specifically, plaintiff
requested that he be awarded a Purple Heart medal for wounds he received in Vietnam
when an enemy rocket exploded near his sleeping quarters. !d. at 37. On September 13,
2007, the ABCMR denied plaintiffs request due to his failure to provide sufficient
evidence to satisfy the criteria specified by regulation for that award. Compl. `` 16, 18;
AR at 28-31. Upon review of plaintiffs records, however, the ABCMR decided to
award plaintiff the Good Conduct Medal, the Republic of Vietnam Civil Actions Honor
Medal First Class Unit Citation, and three bronze service stars for his Vietnam Service
Medal. Compl. ~ 17.
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At the plaintiffs request, the ABCMR reconsidered his Purple Heart request,
along with additional evidence that the plaintiff submitted. Compl. ~ 19; AR at 2-5. On
October 6, 2009, however, the ABCMR once again denied the plaintiffs request because
the available evidence was insufficient to substantiate that the plaintiff 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. Compl. ~ 20; AR at
2-5.
Plaintiff filed this suit on July 13, 2010, asking the Court to reverse the ABCMR
decisions and grant him his request as well as attorney's fees. Compl. `` 25-27. On
January 17, 2011, I dismissed this action without prejudice because of plaintiff's failure
to provide proof of service. See Order, Jan. 17, 2011, ECF No.4. I granted plaintiffs
consent motion to reinstate his complaint, however, on July 26, 2011. See Pl.'s
Consented Mot. to Reinstate, ECF No.5; Order, July 26, 2011, ECF No.6. On
September 26, 2011 and January 11, 2012, the parties filed cross motions for summary
judgment. For the following reasons, the defendant's motion for summary judgment is
GRANTED and plaintiffs cross-motion for summary judgment is DENIED.
LEGAL STANDARDS
I. Review under the AP A
The Secretary of the Army, acting through a civilian board, has the authority to
correct any military record of the Army when "the Secretary considers it necessary to
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correct an error or remove an injustice." 10 U.S.C. § 1552(a)(l). Challenges to the
decisions of such military correction boards are reviewed under the AP A, which
authorizes courts to set aside final agency action that is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Taurus
Records, Inc. v. DEA, 259 F.3d 731, 736 (D.C. Cir. 2001); Frizelle v. Slater, 111 FJd
172, 176 (D.C. Cir. 1997).
When applying this standard of review under the AP A, courts must consider
whether the civilian administrative agency's decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment. Marsh v. Oregon
Natural Res. Council, 490 U.S. 360, 378 (1989) (citing Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402,416 (1971)). At a minimum, that standard requires the
agency to consider relevant data and articulate an explanation from which "[its] path may
reasonably be discerned," even ifthe explanation is of"less than ideal clarity." Dickson
v. Sec'yofDef, 68 FJd 1396, 1404 (D.C. Cir. 1995) (quoting Bowman Transp. Inc. v.
Arkansas-Best Freight Sys., 419 U.S. 281,286 (1974)). Agency action, however, will be
deemed arbitrary or capricious if the agency took into consideration factors which
Congress did not intend it to consider, neglected a significant aspect of the problem, or
offered an explanation that contradicted the evidence. Motor Vehicle Mfrs. Ass 'n of
US., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).
Due to the narrow scope of judicial review under the "arbitrary and capricious"
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standard, courts are prohibited from substituting their judgment for that of the agency.
Id.; Envtl. Def Fund, Inc. v. Castle, 657 F.2d 275,283 (D.C. Cir. 1981) (deferential
standard of review "mandates judicial affirmance if a rational basis for the agency's
decision is presented ... even though we might otherwise disagree"). In short, the
agency's decision is "entitled to a presumption of regularity" and is presumed valid.
Escobedo v. Green, 602 F. Supp. 2d 244, 248 (D.D.C. 2009) (quoting Overton Park, 401
U.S. at 415); Kisser v. Cisneros, 14 FJd 615, 618-19 (D.C. Cir. 1994) ("[w]e may reverse
only if the agency's decision is not supported by substantial evidence, or the agency has
made a clear error in judgment").
Military correction boards, such as the ABCMR, are entitled to even greater
deference than civilian administrative agencies "to ensure that the courts do not become a
forum for appeals by every solider dissatisfied with his or her ratings, a result that would
destabilize military command and take the judiciary far afield of its area of competence."
Escobedo, 602 F. Supp. 2d at 248-49; Cone v. Caldera, 223 FJd 789, 793 (D.C. Cir.
2000). An ABCMR decision thus cannot be considered arbitrary or capricious if it
"minimally contains a rational connection between the facts found and choice made."
Frizelle, 111 F.3d at 176 (quoting State Farm, 463 U.S. at 43); Appleby v. Harvey, 517 F.
Supp. 2d 253, 261 (D.D.C. 2007). Accordingly, for the plaintiff to overcome the strong
presumption that the military administrators discharged their duties correctly, lawfully,
and in good faith, he must show "by cogent and clearly convincing evidence" that the
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ABCMR's decision was the result of an injustice or material legal error. Frizelle, 111
F.3d at 177; Doyle v. England, 193 F. Supp. 2d 202,207 (D.D.C. 2002) ("[i]n the absence
of clear and persuasive evidence to the contrary, the courts should thus presume that the
Secretary and selection boards performed fairly and lawfully"). For the following
reasons, he did not do so here.
II. Summary Judgment
Summary judgment is appropriate when, based on the record, there is no genuine
issue as to any material fact, and the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56( a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). In a case involving a challenge to a federal agency's administrative decision
under the APA, however, it is the duty of the agency to resolve factual issues in a manner
that is supported by the administrative record. Sierra Club v. Mainella, 459 F. Supp. 2d
76, 90 (D.D.C. 2006). On summary judgment, the standard set forth in Fed. R. Civ. P.
56( a) thus does not apply, and the district court is limited to determining "whether or not
as a matter of law the evidence in the administrative record permitted the agency to make
the decision it did." !d. at 90 (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766,
769-70 (9th Cir. 1985)); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C.
1995). In cases involving review of agency decisions, summary judgment therefore
becomes the mechanism for deciding whether, as a matter of law, the final agency action
is supported by the administrative record and is otherwise consistent with the AP A
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standard of review. See Sw. Merch. Corp. v. NLRB, 53 F.3d 1334, 1341 (D.C. Cir.
1995); Richards v. INS, 554 F .2d 1173, 1177 & n.28 (D.C. Cir. 1977).
DISCUSSION
In this case, the plaintiff claims that the ABCMR's denial of his request for the
Purple Heart award was arbitrary, capricious, an abuse of discretion or otherwise contrary
to law because it is contradicted and unsupported by the administrative record and it is
contrary to the evidence submitted by the plaintiff. See Compl. `` 22-23; Pl.'s Mem. in
Supp. of Pl.'s Opp'n to Def.'s Mot. for Summ. Judgment and Pl.'s Cross-Mot. for Summ.
Judgment ("Pl.'s Opp'n") at 1, ECF Nos. 15, 17. The defendant disagrees with the
plaintiffs characterization, however, and argues that the ABCMR decision was neither
arbitrary and capricious, nor contrary to law or regulation, because the ABCMR expressly
considered the evidence presented and properly found that, based on the record before it,
the plaintiff failed to submit sufficient evidence to satisfy the regulatory criteria for award
ofthe Purple Heart. See Def.'s Reply to Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ.
Judgment and Def.'s Mem. in Opp'n to Pl.'s Cross-Mot. for Summ. Judgment. ("Def.'s
Reply") at 3, ECF Nos. 19, 20. I agree.
I. Army Regulations
The ABCMR is a civilian review board that is empowered to review "individual
applications that are properly brought before it" alleging "error or injustice" regarding
"any military record" of the Department of Army. See 10 U.S.C. § 1552(a)(l); Def.'s
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Mem. in Supp. ofMot. for Summ. Judgment ("Def.'s Mem."), Ex. A, Army Regulation
15-185 ("Army Reg."),~ 2, ECF No. 11-2. In reviewing such applications, the ABCMR
considers the evidence of record, though it may request additional evidence or opinions
despite the fact that it is not an investigative body. Def.'s Mem., Ex. A, Army Reg.
15-185 ~ 2-2(c). lfthe preponderance ofthe evidence shows that an error or injustice
exists, the ABCMR will determine what relief is appropriate and grant such relief
accordingly. !d.~ 2-10(c)(1)(a). Ifthe applicant fails to meet this burden, however, the
ABCMR will deny relief. !d.~ 2-10(c)(1)(b). Applicants can seek reconsideration of
these ABCMR decisions within a year of the decision's issuance, but an ABCMR
decision to deny an application is final. !d.`` 2-13, 2-15.
The specific relief requested by the plaintiff in his application to the ABCMR is, of
course, an award of the Purple Heart medal. Established by George Washington during
the Revolutionary War, the Purple Heart medal is bestowed upon members of the United
States Armed Forces who have been wounded or killed as a result of enemy action against
the United States. Def.'s Mem., Ex. B, Army Reg. 600-8-22, `` 2-8(a), 2-8(b), ECF No.
11-2. More specifically, each approved award ofthe Purple Heart must exhibit all ofthe
following factors: (1) wound, injury or death resulting from enemy or hostile act,
international terrorist attack, or friendly fire; (2) the wound or injury required treatment
by medical officials; and (3) the records of medical treatment were made a matter of
official Army records. !d.~ 2-8k(3) (emphasis added).
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II. The ABCMR's September 2007 Decision and October 2009 Reconsideration
Decision
a. The September 13, 2007 Decision
On September 13, 2007, the ABCMR denied plaintiffs request for a Purple Heart
because there was "no available evidence of record to show that the [plaintiff] was treated
for a wound that was sustained as the result of enemy action" during his time in Vietnam,
as required by the regulatory criteria for award of the Purple Heart. AR at 28-31.
Plaintiff argues that this decision should be set aside because the ABCMR
"fail[ ed] to accord the [plaintiffs] corroborative and circumstantial evidence any weight"
and "fail[ ed]" to consider correcting the [plaintiffs] military records to reflect that he
sustained an injury from enemy attack and subsequent treatment," as shown by the
evidence before the ABCMR at the time. Pl.'s Opp'n at 8. But the record clearly shows
that the ABCMR reviewed and credited all of the evidence that the plaintiff submitted in
support of his application, and even noted the relevant facts derived from each piece of
evidence that informed its decisionmaking. 1 While the Court is charged with examining
whether or not the ABCMR considered all the evidence before it and stated why evidence
contrary to the final decision was disregarded or given less weight, Fuller v. Winter, 538
1 More specifically, the ABCMR noted the following regarding the evidence of record:
(1) neither the plaintiffs DD Form 214 nor the plaintiffs DA Form 20 lists the Purple
Heart as an authorized award, though both forms lists many others; (2) the plaintiffs DA
Form 20 contains a blank space next to Item 40, "Wounds"; (3) the plaintiffs name does
not appear on Vietnam Casualty Roster; and (4) the plaintiff failed to include copies of
pictures he alleged were taken of his injuries. AR at 28-30.
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F. Supp. 2d 179, 186 (D.D.C. 2008), it may not "serve as a super correction board that
reweighs the evidence", nor may it substitute its own judgment for that of the agency.
Schaefer v. Geren, 607 F. Supp. 2d 61, 68 (D.D.C. 2009); Holy Land Found. for Relief &
Dev. v. Ashcroft, 219 F. Supp. 2d 57, 75 (D.D.C. 2002) ("[T]he purpose of the Court's
inquiry is not to .... second-guess the agency on credibility issues .... "). Put simply,
plaintiffs personal disagreement with the results of ABCMR's evaluation is not a valid
basis for this Court to set aside agency action, especially when such action is supported by
the record.
In addition, it is patently clear from the record that the ABCMR's decision to deny
a recommendation of correction with regard to plaintiffs military record was properly
based on the lack of substantiating medical records, as required by the strict regulatory
criteria for award of the Purple Heart. More specifically, an award of the Purple Heart
medal requires "substantiating evidence ... to verify that the wound was the result of
hostile action, the wound ... required treatment by a medical officer, and the medical
treatment [was] made a matter of official record." AR at 29 (citing Army Reg.
600-8-22). Because there was "no available evidence of record to show that [plaintiff]
was treated for a wound that was sustained as the result of enemy action" in plaintiffs
case, however, the ABCMR denied relief. !d. at 30-31. If the Court finds, and I do, that
the agency considered relevant data and articulated an explanation from which "[its] path
may be reasonably discerned", this Court's inquiry is terminated, and the agency decision
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must be upheld. State Farm, 463 U.S. at 43; Bowman Transp., 419 U.S. at 286. Indeed,
even the plaintiff agrees that the ABCMR's assessment is rationally based on the facts,
admitting multiple times in the pleadings as to the lack of any document, much less a
public record, that substantiates his claim as to injury from enemy action and subsequent
medical treatment. 2
Because the record clearly shows that the ABCMR examined the relevant data and
articulated a satisfactory explanation for its action, including a rational connection
between the facts found and the choice made, MD Pharm. Inc. v. Drug Enforcement
Admin., 133 F.3d 8, 16 (D.C. Cir. 1998), the ABCMR's September 13, 2007 decision is
neither arbitrary, capricious, nor contrary to substantial evidence as a matter of law.
b. The October 6, 2009 Reconsideration Decision
On October 6, 2009, the ABCMR unanimously denied plaintiffs reconsideration
request of its initial decision to grant partial relief. AR at 3-5. Despite the addition of
new evidence in support of plaintiffs claim, the ABCMR came to the same conclusion it
originally had: that "the available evidence is not sufficiently substantiating to show that
2 See Pl.'s Opp'n at 3 ("[u]pon learning that several dogs had been injured in the rocket
attack, the Veteran left to care for them, before medical records were completed to
document his injury"); id. ("due to [plaintiffs] abrupt departure from the dispensary and
abandoning his own welfare to complete his mission, no medical records were completed
to document his injury or medical treatment"); Pl.'s Reply to Def. 's Mem. in Opp'n to
Pl.'s Cross-Mot. for Summ. Judgment ("Pl.'s Reply") at 2, ECF No. 21 ("someone failed
to incorporate the [plaintiffs] name, injury, and treatment into the official records during
enemy attack on June 6, 1969"); id. at 4 ("[plaintiffs] treatment was not made part ofthe
official record, due to someone else's error").
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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." !d. at 5.
Once again, I find that the ABCMR's October 6, 2009 reconsideration decision is
not arbitrary and capricious, nor does it contradict the evidence submitted by the plaintiff,
as a matter oflaw. Contrary to plaintiffs argument that the ABCMR acted "arbitrarily
and capriciously" "in violation of its mandate ... by not correcting the [plaintiffs]
military medical record" to reflect his alleged injuries and treatment in light of "plenty of
[corroborating] evidence", Pl.'s Opp'n at 8-9, it is abundantly clear to me that the
ABCMR carefully considered all of the evidence before it on reconsideration, including
newly submitted evidence from the plaintiff. 3 Ultimately, it issued a decision that
rationally explained why its original decision to deny plaintiff the Purple Heart award
should remain undisturbed. AR at 2-5.
For instance, the ABCMR notes that the letters of support from former soldiers
"clearly state that the applicant was wounded in action," thus satisfying the first of the
three prongs necessary for award of the Purple Heart. !d. at 5. But the ABCMR goes on
to explain that the "photographs that reportedly show the applicant's wounds bandaged
are insufficient by themselves as a basis for award of the Purple Heart" because there "is
3Such evidence included copies of photographs, a June 6, 1969 DA Form 1594 (Duty
Officer's Log or Daily Staff Journal), a July 7, 1969 U.S. Army Vietnam Form 382
(Monthly Report of Scout Dog Operations), and three letters of support. AR at 3-4.
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no available medical record to corroborate the photographs," as required by the second
and third prongs of the Purple Heart award requirements. !d. at 4-5. In support of its
decision, the ABCMR also explains that, although the July 7, 1968 Monthly Report of
Scout Dog Operations (USARV Form 382) and the June 6, 1969 Duty Officer's Log (DA
Form 1594) submitted by plaintiff both mention that two dog handlers and/or soldiers
were wounded in action on or around June 6, 1969, neither include identifying
information regarding the wounded individuals, and the latter indicates that neither of
their wounds were serious, with only one requiring hospitalization. !d. at 4.
The Court thus finds that the plaintiff has not shown by cogent and clear evidence
that the ABCMR decision was a result of a material legal error or injustice. See Doyle,
193 F. Supp. 2d at 207. The ABCMR adequately explained the facts and concerns it
relied on in its October 6, 2009 decision, which was supported by the administrative
record, and the plaintiff has not demonstrated that these assertions and opinions are
unlawful, arbitrary, capricious or contrary to the evidence of record. Because the Court
must accept the ABCMR's findings "if the record contains such evidence that a
reasonable mind might accept as adequate to support a conclusion," Smith v. Dalton, 927
F. Supp. 1, 5 (D.D.C. 1996), the Court easily concludes that the ABCMR's decision to
affirm the denial of plaintiffs requested relief cannot be set aside under the APA. The
defendant is thus entitled to judgment as a matter of law. 4
4 It is important to note that the root of plaintiffs discord seems to be the administrative
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CONCLUSION
For all the foregoing reasons, defendant's Motion for Summary Judgment [Dkt.
#11] is hereby GRANTED and the plaintiff's Cross-Motion for Summary Judgment [Dkt.
#17] is hereby DENIED. An appropriate order shall accompany this Memorandum
Opinion.
requirements for the Purple Heart award, rather than the decisionmaking of the ABCMR.
Indeed, the plaintiff's argument that corroborative and circumstantial evidence should
stand in for the "formality" of a document, Pl.'s Opp 'n at 2, is a political argument that is
better addressed to Congress or the Department of the Army than to the judiciary. In
addition, plaintiff's encouragement of this Court to "do equity" because it "has the
opportunity to provide this Veteran with justice," id. at 10-11, Pl.'s Reply at 4, is
misplaced. This Court is not a court of equity. It is a court oflaw, and its review of the
ABCMR decision is, to say the least, a narrow one. See State Farm, 463 U.S. at 43;
Costle, 657 F.2d at 283.
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