Hugh McKinney v. Christine Wormuth

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 3, 2021 Decided July 20, 2021

No. 20-5189

HUGH CAMPBELL MCKINNEY,

APPELLANT

v.

CHRISTINE WORMUTH, IN HER OFFICIAL CAPACITY AS

SECRETARY OF THE UNITED STATES ARMY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-00371)

Seth A. Watkins argued the cause and filed the briefs for

appellant.

Sean P. Mahard, Special Assistant U.S. Attorney, argued

the cause for appellee. With him on the brief were R. Craig

Lawrence and Peter C. Pfaffenroth, Assistant U.S. Attorneys.

Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge,

and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM:

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PER CURIAM: Sergeant First Class (Retired) Hugh

McKinney served honorably in the armed forces for more than

twenty years. Several years after his retirement, he applied to

the Army for a Purple Heart on the ground that he suffered a

traumatic brain injury when a roadside bomb exploded near his

patrol vehicle in Iraq. The Army denied him a Purple Heart

because it found the evidence insufficient to establish that this

particular attack caused McKinney to suffer injuries that would

qualify for the award. The court recognizes McKinney’s years

of service and regrets the injuries he sustained during that

service. With respect to the award of a Purple Heart, however,

we are required to review the Army’s decision under a

deferential standard. Because the Army did not act arbitrarily

or capriciously when it denied McKinney the Purple Heart, we

affirm.

I.

The Purple Heart is America’s oldest military award.

General George Washington established the Purple Heart near

the end of the Revolutionary War. See U.S. DEP’T OF ARMY,

Reg. 600-8-22, MILITARY AWARDS ¶ 2-8a (2015) (hereinafter

“Army Reg. 600-8-22”). During World War II, the medal

became exclusively a recognition of combat injuries and

deaths. See Decorations, Medals, Ribbons, and Similar

Devices, 7 Fed. Reg. 7,477 (Sept. 23, 1942). The Purple Heart

“differs from all other decorations” in one aspect: “[A]n

individual is not ‘recommended’ for the decoration; rather, he

or she is entitled to it upon meeting specific criteria.” Army

Reg. 600-8-22 ¶ 2-8c. To be eligible for a Purple Heart, a

soldier must have suffered an injury resulting from an enemy

or hostile act; the injury must have required treatment; and the

treatment of the injury by a medical officer must be

documented in the soldier’s medical record. See id. ¶ 2-8k.

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Most commonly, an injured soldier is submitted for the

award by his chain of command. A soldier who “believes that

[he is] eligible for the [Purple Heart] but, through unusual

circumstances no award was made,” may also apply to the

Army Human Resources Command. Id. ¶ 2-8j(2). This

application must include corroborating documentation, such as

a “narrative describing the qualifying incident” and statements

from witnesses “who were personally present, observed the

incident, and have direct knowledge of the event.” Id. ¶ 2-

8j(2)(e) & (f). If the soldier’s application is denied, he may

appeal to the Army Board for Correction of Military Records

(the “Board”), which has been delegated the Secretary of the

Army’s statutory authority to decide when it is “necessary to

correct an error or remove an injustice” in any military record.

Legislative Reorganization Act of 1946, Pub. L. No. 79-601,

§ 207, 60 Stat. 812, 837 (codified as amended at 10 U.S.C.

§ 1552(a)(1)).

McKinney applied for a Purple Heart on the basis that

while serving in Iraq he suffered a traumatic brain injury

(“TBI”). A TBI is “an injury to the brain resulting from an

external force and/or acceleration/deceleration mechanism

from an event such as a blast, … which causes an alteration in

mental status.” J.A. 213. In October 2005, McKinney was on

patrol in a Humvee when an improvised explosive device

exploded about fifteen to twenty meters away on McKinney’s

side of the vehicle. The blast struck the Humvee with shrapnel,

dirt, and rocks, though none hit McKinney. The vehicle’s

tactical commander, David Gehrig, believed that McKinney

“took the brunt of the blast.” J.A. 398. Although everyone in

the vehicle “was shaken up and dazed,” Gehrig thought that

McKinney “was really dazed” and “seemed to not realize [that]

the blast had come and gone.” J.A. 398. Gehrig later described

McKinney as having his “mind … on a loop of the blast for a

few minutes.” J.A. 398. Despite this initial confusion,

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McKinney focused on ensuring the safety of his gunner, whose

position in the gun turret left him more exposed to the

concussive force of the blast.

After the explosion, McKinney and his fellow soldiers

searched for but did not find the insurgents who had placed the

bomb. They returned to their base, where McKinney gave a

sworn statement regarding the explosion. Military physicians

were unavailable at McKinney’s base, and McKinney,

concerned about putting fellow soldiers in jeopardy on the

journey, did not seek to travel to a nearby base for medical

attention. McKinney therefore never sought or received a

medical evaluation while in Iraq. He completed his deployment

and returned to the United States with his unit approximately

three weeks later. This October 2005 incident was neither

McKinney’s first combat mission nor his first encounter with

improvised explosive devices: A veteran of more than two

hundred combat missions, he had previously been in the

vicinity of two other detonations during his deployment.

McKinney retired from the Army in 2007. A few months

later, he suffered a stroke at the age of forty-six. A Department

of Veterans Affairs doctor, Dr. Robin DeLeon, evaluated

McKinney to determine whether his medical conditions were

service-connected, which means they were directly caused or

made worse by the veteran’s military service. Dr. DeLeon

concluded that they were. Although he found no clear cause of

McKinney’s stroke, Dr. DeLeon believed that it was

“connected to the [improvised explosive device] exposures.”

J.A. 413. He later opined that of McKinney’s reported

exposures, only the October 2005 blast was consistent with

causing a TBI. Veterans Affairs affirmed that McKinney had a

total disability that was service-connected and permanent,

which entitled him to lifetime free medical care and other

benefits for 100% disabled veterans.

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After receiving these evaluations, McKinney applied to

the Army Human Resources Command for a Purple Heart in

connection with the October 2005 blast. His attached statement

recounted that he “lost consciousness for about 5–10 seconds”

after the explosion. J.A. 380. McKinney also relied on the

statement from Gehrig, particularly for his description of

McKinney’s mind being “on a loop” after the blast. J.A. 398.

McKinney submitted several medical opinions finding that he

had suffered a TBI, though only Dr. DeLeon’s tied it

definitively to the October 2005 attack.

Human Resources Command requested that an Army

doctor, Dr. Michael Sullivan, review McKinney’s medical

records. Dr. Sullivan concluded that, although “[t]here is no

doubt … that [McKinney] was exposed to concussive forces,

his TBI appears to be a cumulative [e]ffect as opposed to being

caused by a specific event.” J.A. 370. Human Resources

Command denied the application, explaining that McKinney

failed to provide sufficient documentation that he received

treatment in connection with a TBI caused by the October 2005

attack. McKinney requested reconsideration, and Human

Resources Command again denied his request.

McKinney appealed to the Board. As the applicant,

McKinney had the burden of overcoming a “presumption of

administrative regularity” by “proving an error or injustice by

a preponderance of the evidence.” 32 C.F.R. § 581.3(e)(2). The

Board must deny an application “when the alleged error or

injustice is not adequately supported by the evidence.” Id.

§ 581.3(b)(4)(iv).

The Board determined that McKinney did not qualify for

a Purple Heart. It found there was no evidence that McKinney

“was treated by medical personnel for an injury/wound he

received as a result of hostile action on or near 9 October

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2005.” J.A. 347. Neither McKinney’s statement made a few

days after the blast nor Gehrig’s statement indicated that

McKinney was wounded; Gehrig indicated only that

McKinney was dazed. The Board also relied upon Dr.

Sullivan’s conclusion that McKinney’s TBI was caused by the

cumulative effect of “multiple concussive forces,” not a

specific event. J.A. 348.

McKinney filed a claim under the Administrative

Procedure Act (“APA”) in the District Court for the District of

Columbia, alleging the Board’s action was arbitrary and

capricious. The court granted summary judgment to the Army.

After assessing the medical evidence, the district court held it

was not arbitrary or capricious for the Army to deny the award

because McKinney failed to establish that his injury would

have required treatment by a medical officer. McKinney timely

appealed.

II.

This court has exercised jurisdiction to review a denial of

a Purple Heart award. Cf. Haselwander v. McHugh, 774 F.3d

990, 996 (D.C. Cir. 2014). Under the APA, “final agency action

for which there is no other adequate remedy in a court [is]

subject to judicial review.” 5 U.S.C. § 704. The Board’s

decision to deny an application constitutes final agency action.

32 C.F.R. § 581.3(g)(2)(i)(A).

Several principles guide the relevant standard of review.

First, we review the district court’s grant of summary judgment

de novo. See Kidwell v. Dep’t of the Army, 56 F.3d 279, 286

(D.C. Cir. 1995). Second, the Board’s actions in correcting

military records will be set aside “if they are ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.’” Haselwander, 774 F.3d at 996 (quoting

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5 U.S.C. § 706(2)(A)). Third, the Board’s decision must

demonstrate reasoned decisionmaking. See id.

Our review of Board decisions involves “an unusually

deferential application of the ‘arbitrary or capricious’

standard.” Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514

(D.C. Cir. 1989). Because of the Secretary’s broad statutory

discretion, “[i]t is simply more difficult to say that the

Secretary has acted arbitrarily if he is authorized to act ‘when

he considers it necessary to correct an error or remove an

injustice.’” Id. (quoting 10 U.S.C. § 1552(a)) (emphasis in

original). Moreover, we cannot lose sight of the fact that

“‘[j]udges are not given the task of running the Army,’” so our

review asks only if the Board’s decisionmaking “process was

deficient, not whether [its] decision was correct.” Id. at 1511

(quoting Orloff v. Willoughby, 345 U.S. 83, 93 (1953))

(emphasis added).

The parties suggest that the Board’s decision here must

also be supported by substantial evidence. But that standard of

review applies only to formal adjudications. 5 U.S.C.

§ 706(2)(E); Phoenix Herpetological Soc’y v. U.S. Fish &

Wildlife Serv., 998 F.3d 999, 1005 (D.C. Cir. 2021). The

Board’s adjudication of a denial of a Purple Heart is informal

and so that standard does not apply here. 1 We review the

1

Congress sometimes specifies by statute that a particular informal

adjudicatory decision be supported by substantial evidence.

Adjudications to correct a military record must be supported by

substantial evidence if the Board adjudicating the claim has been

“designated as a special board by the Secretary.” 10 U.S.C.

§ 1558(b)(1)(A) & (B); id. § 1558(f)(3)(B). The record contains no

evidence that the Secretary designated the Board reviewing

McKinney’s application as a special board, nor do the parties suggest

that such a designation was made.

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Board’s informal adjudication under the arbitrary and

capricious standard.

III.

To qualify for a Purple Heart, McKinney had to establish

three elements: (1) that he received a qualifying injury; (2) that

the injury required treatment by a medical officer; and (3) that

the medical treatment was documented in his records. Army

Reg. 600-8-22 ¶ 2-8k.

Not all injuries received during military service qualify for

a Purple Heart. As relevant here, a “[m]ild traumatic brain

injury or concussion” qualifies only if it was “severe enough to

cause either loss of consciousness or restriction from full duty

due to persistent signs, symptoms, or clinical finding, or

impaired brain function for a period greater than 48 hours from

the time of the concussive incident.” Id. ¶ 2-8g(6). But a mild

TBI that “do[es] not either result in loss of consciousness or

restriction from full duty for a period greater than 48 hours due

to persistent signs … of impaired brain function” does not

qualify for the Purple Heart. Id. ¶ 2-8h(13).

Although it is undisputed that McKinney suffered a TBI

because of his military service, the Board reasonably

determined that McKinney did not demonstrate a qualifying

injury caused by the October 2005 attack. It relied on

McKinney’s thorough statement from the day after the

explosion, in which he did not state that he lost consciousness,

report any symptoms of impaired brain function, or indicate he

was otherwise injured in the blast. Crediting this

contemporaneous statement, rather than McKinney’s later

recollections, was neither arbitrary nor capricious. Moreover,

Gehrig, McKinney’s only witness, did not indicate that

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McKinney was injured following the incident, only dazed.

Being dazed would not qualify for a Purple Heart.

In the same vein, we think the Board’s determination that

McKinney’s TBI resulted from a cumulative effect, as opposed

to the October 2005 attack, was reasonable. McKinney relies

on Dr. DeLeon’s assessment that the October 2005 attack

caused McKinney’s TBI and led to his subsequent stroke. The

Board’s decision takes account of that assessment, but it

credited Dr. Sullivan’s subsequent opinion that cumulative

exposures caused his TBI. The Board therefore “reasonably

reflect[ed] upon the information contained in the record and

grapple[d] with contrary evidence.” Fred Meyer Stores, Inc. v.

NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017). Because the Board

complied with these standards, we cannot second-guess its

decision. The Board permissibly found the evidence lacking

that McKinney received a qualifying injury in the October

2005 attack, so we need not address McKinney’s arguments as

to the second and third requirements.

McKinney also faults the Board for its brief analysis. The

analysis, however, has sufficient clarity for us to discern the

Board’s rationale. See Dickson v. Sec’y of Def., 68 F.3d 1396,

1404 (D.C. Cir. 1995) (“[A]n agency’s decision [need not] be

a model of analytic precision to survive a challenge.”). This is

not a case in which the Board simply inserted “boilerplate

language” or “parrot[ed] the language” of the governing

regulation “without providing an account of how it reached its

results.” Id. at 1405. On the contrary, the Board’s decision here,

while concise, satisfies the APA’s requirement to “minimally

contain a rational connection between the facts found and the

choice made.” Id. at 1404 (cleaned up). The Board’s decision

meets that minimal standard.

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***

Sergeant First Class (Retired) McKinney sacrificed a great

deal in service to the Nation. This decision in no way detracts

from his honorable service or discounts the severity of his

medical problems in the years since his retirement. In deciding

this case, however, the court is limited to considering the

reasonableness of the Board’s decision. Under these standards

we affirm the judgment of the district court.

So ordered.