Kenneth Haselwander v. John McHugh

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

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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

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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

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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.

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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.

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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.”

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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

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(“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.

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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.

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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.

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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

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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.