Kenneth Haselwander v. John McHugh

774 F.3d 990, 413 U.S. App. D.C. 302, 2014 U.S. App. LEXIS 23950, 2014 WL 7234775
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 19, 2014
Docket12-5297
StatusPublished
Cited by46 cases

This text of 774 F.3d 990 (Kenneth Haselwander v. John McHugh) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kenneth Haselwander v. John McHugh, 774 F.3d 990, 413 U.S. App. D.C. 302, 2014 U.S. App. LEXIS 23950, 2014 WL 7234775 (D.C. Cir. 2014).

Opinion

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, Haselwan-der’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)(S) (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 showing him with bandages on his face and shoulder and wearing a dispensary-issued scrub top. The Board rejected the application, stating that Ha-selwander 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 *992 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 dearly 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 Hasel-wander’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 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 Ap-pellee at 31. Second, the Secretary argues that the Board’s decision that Haselwan-der 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 Hasel-wander 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 Haselwan-der, 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 Hasel-wander. Thus, it is apparent that the sole basis for the Board’s rejection , of Hasel-wander’s claim is its finding that “[tjhere is no available medical record to corroborate the photographs.” Id. (emphasis added).

The Board misapprehends its powers and duties as a record correction body *993 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.” Cob urn 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

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Bluebook (online)
774 F.3d 990, 413 U.S. App. D.C. 302, 2014 U.S. App. LEXIS 23950, 2014 WL 7234775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenneth-haselwander-v-john-mchugh-cadc-2014.