Coburn v. McHugh

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 2011 Decided May 25, 2012

No. 10-5350

TRENT M. COBURN,

APPELLANT

v.

JOHN M. MCHUGH, HONORABLE, SECRETARY OF THE ARMY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-01266)

Raymond J. Toney argued the cause and filed the briefs for

appellant. David P. Sheldon entered an appearance.

Daniel J. Everett, Special Assistant U.S. Attorney, argued

the cause for appellee. On the brief were Ronald C. Machen Jr.,

U.S. Attorney, and R. Craig Lawrence and Alan Burch,

Assistant U.S. Attorneys. Kelly L. McGovern, Special Assistant

U.S. Attorney, entered an appearance.

Before: BROWN and GRIFFITH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

EDWARDS, Senior Circuit Judge: After nearly eighteen

years of service in the United States Army, Appellant Trent

Coburn was involuntarily separated on October 30, 2002,

pursuant to the Army Qualitative Management Program

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(“QMP”) for an unfavorable Noncommissioned Officer

Evaluation Report (“NCOER”) and a record of nonjudicial

punishment under Article 15 of the Uniform Code of Military

Justice (“UCMJ”). Prior to his separation, Coburn had

undergone repeated medical evaluations for back problems and

pulmonary issues. In an effort to address Coburn’s medical

issues, the Army had initiated a Medical Evaluation Board

(“MEB”), a process used to determine whether a soldier is

medically qualified for retention in the service. See Army Reg.

635-40 ¶ 4-10 (2012). On October 30, 2002, Coburn’s MEB

processing was purportedly terminated. Orders were published

on the same day directing Coburn’s discharge under the QMP.

Coburn challenged the termination of the MEB process in

two actions before the Army Board for Correction of Military

Records (“the ABCMR” or “the Board”), which in each case

rejected his claims. The first of these actions was filed on

December 5, 2002. Coburn asserted that his separation from the

service resulted from an improper termination of the MEB

process. He requested reinstatement to allow the MEB process

to continue. On August 21, 2003, the ABCMR rejected

Coburn’s claims. The second action was filed on January 5,

2006. In this action, Coburn sought reconsideration of the

Board’s 2003 decision. He asserted: (1) that the physician who

had terminated his MEB did not have the authority to do so; and

(2) that no medical justification existed to terminate the MEB.

On March 7, 2007, the ABCMR denied Coburn’s request for

reconsideration. Coburn did not specifically challenge the QMP

action in his 2002 and 2006 applications to the ABCMR.

On July 7, 2009, Coburn filed suit in the District Court

against the Secretary of the Army (“the Secretary”), invoking

the court’s jurisdiction under 28 U.S.C. § 1331, and raising

claims under the Administrative Procedure Act (“APA”), 5

U.S.C. §§ 704, 706 (2006), to challenge the Board’s August 21,

2003 and March 7, 2007 decisions. The District Court granted

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the Secretary’s motion to dismiss or, in the alternative, for

summary judgment, and denied Appellant’s cross-motion for

summary judgment. Coburn v. McHugh, 744 F. Supp. 2d 177

(D.D.C. 2010).

On appeal, Appellant first contends that the District Court

erred in dismissing his claim challenging his separation under

the QMP for failure to “meet Army standards.” Army Reg.

635-200 ¶ 19-2(a) (2011). Coburn argues that because an

Administrative Separation Board (“ASB”) found that a

preponderance of the evidence did not support the allegation that

he had wrongfully used marijuana – which was the ground upon

which the Article 15 action was based – his separation under the

QMP was unlawful. The District Court found, see Coburn, 744

F. Supp. 2d at 182–83, and we agree, that because Coburn did

not specifically challenge the QMP action in his 2002 or 2006

applications to the ABCMR, the matter is not properly subject

to judicial review.

Appellant’s second contention on appeal pertains to the

termination of his MEB process. Appellant asserts that the

ABCMR and the District Court erred in finding that the doctors

who terminated his MEB process had the authority to do so, and

that the medical evidence in the record supported the decision to

terminate. Relatedly, Appellant contends that, under established

Army procedures, his QMP separation should have been stayed

pending completion of his MEB processing. The Secretary does

not dispute this last point, but argues that the physicians who

handled Appellant’s case made a well-founded decision not to

refer Coburn to a MEB, so there was no improper termination of

any MEB process. The parties thus disagree over whether

Coburn was referred to a MEB. The record clearly indicates that

the MEB process had been “initiated,” but the Secretary

contends that initiation is not the same as a referral to a MEB.

The ABCMR decisions do not address whether Coburn’s case

was referred to a MEB, and, if so, how Appellant’s physicians

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(who were not members of a MEB) could terminate a case that

had been submitted to the MEB process. And the ABCMR

decisions fail to explain how the medical information in the

record justified the termination of Coburn’s MEB process when

no final decision had been issued by a MEB. Because the

ABCMR’s decisions are largely incomprehensible on these

points, they are unworthy of any deference. Accordingly, we

reverse the decision of the District Court on the MEB issue and

instruct the trial court to remand the case to the ABCMR for

further proceedings consistent with this opinion.

I. Background

A. The QMP Separation

On March 24, 2000, after urinalysis showed that Appellant

tested positive for marijuana, he was found guilty of wrongful

use of marijuana pursuant to the nonjudicial punishment

proceedings of Article 15 of the UCMJ. On October 25 and 26

of that year, Coburn appeared before an ASB that was convened

to determine whether to separate Appellant from the service for

the “commission of a serious offense” in violation of Army

Regulation 635-200, Chapter 14, Section III, Paragraph 14-12c.

Mem. for Major Willie Chandler (Sept. 1, 2000), reprinted in

J.A. 130. The ASB found that the allegation that Coburn had

“wrongfully used marijuana . . . [was] not . . . supported by a

preponderance of the evidence” and recommended that he “be

retained in the service.” Findings and Recommendations,

Administrative Board, J.A. 131. However, the ASB did not

mention the Article 15 action. Coburn then pursued various

avenues of appeal in an effort to have the Article 15 action

expunged from his record or moved to a restricted fiche data

file; but his petitions for relief were rejected at every turn.

On August 25, 2000, Coburn received an unfavorable

NCOER for the rating period of August 1999 to July 2000. See

NCO Evaluation Report, Aug. 25, 2000, J.A. 223–24. The

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evaluation stated that Coburn needed much improvement in

leadership; noted that he had failed a urinalysis test; indicated

that he “uses poor judgment” and that his “leadership [was]

marred by actions unbecoming a noncommissioned officer”; and

concluded that his “[o]verall potential for promotion and/or

service in positions of greater responsibility” was only “fair.”

Id., J.A. 224.

On April 20, 2001, pursuant to the QMP, Coburn was

selected for separation from service and barred from

reenlistment by a Master Sergeant Promotion Board. The

Promotion Board considered Coburn’s record of service,

including performance and future potential for retention in the

Army. The grounds for Coburn’s separation were (1) his poor

NCOER for the rating period of August 1999 through July 2000

and (2) the Article 15 action. See Mem. for Sergeant First Class

Trent M. Coburn (Apr. 20, 2001), J.A. 142.

Coburn subsequently submitted several applications to the

ABCMR, to which a soldier may appeal when he believes his

record contains an error or injustice. See 10 U.S.C. § 1552(a)(1)

(2006); Army Reg. 15-185 ¶ 2-10(c) (2006). In the first of these

applications, Coburn requested that the ABCMR remove the

Article 15 action and the NCOER from his personnel file. He

asserted that both negative records “resulted from the erroneous

[c]onclusion that [he] wrongfully used marijuana”; he also

pointed out that he had been “vindicated” by the ASB. ABCMR

Appl., Aug. 24, 2001, J.A. 126.

On March 28, 2002, the ABCMR rejected Coburn’s August

21, 2001 application, finding that he presented “no evidence . . .

that the Article 15 was in error or unjust.” The Board thus

declined to expunge the reference to the Article 15 action from

Appellant’s personnel file or to move the reference to a

restricted fiche data file. ABCMR Mem. of Consideration (Mar.

28, 2002) (“2002 Decision”) at 7, J.A. 122. The Board also

found that there was “no basis to remove or amend the contested

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NCOER.” Id.

B. The MEB Process

In March 2002, because of his recurring medical problems,

Dr. Mario Caycedo “initiated [a] MEB for Mr. Coburn.”

Caycedo Decl. ¶¶ 2, 2(c), Sept. 3, 2009, J.A. 172–73. The Army

thereafter determined that Coburn “did not meet medical

retention standards in accordance with Army regulations.”

Letter from Brian J. Storm, First Lieutenant, U.S. Army, to Hon.

Chet Edwards, Representative in Congress (July 17, 2002)

(“Storm Letter”), J.A. 112. Coburn was thus “eligible for

processing through the Physical Disability System. On July 2,

2002, he was referred to process through the MEB by the

Brigade Surgeon.” Id. The MEB process is used to determine

whether a solider is medically qualified for retention in the

Army. See Army Reg. 635-40 ¶ 4-10. Because the MEB

process generally takes precedence over administrative

separation procedures, Coburn could not be separated pursuant

to the QMP so long as the MEB process was ongoing. See

Army Reg. 635-200 ¶ 1-33.

On October 30, 2002, Dr. Caycedo discussed Coburn’s case

with Colonel Wayne Schirner, also an Army physician.

Caycedo Decl. ¶ 2(i), (l), (m), J.A. 174–75. Although both

doctors had familiarity with Coburn’s case, neither was on a

MEB assigned to determine whether Coburn was medically

qualified for retention. Nonetheless, after reviewing Coburn’s

medical record, Dr. Schirner and Dr. Caycedo “agreed . . . to

terminate Mr. Coburn’s MEB.” Id. ¶ 2(m), J.A. 175. Dr.

Caycedo then wrote a letter to Coburn’s Physical Evaluation

Board Liaison Officer, instructing that “MEB action on SFC

Coburn” should be “terminate[d],” because Coburn’s “medical

issues are stable and maybe [sic] followed by the VA [Veterans

Affairs] system once the soldier leaves the military.” Letter

from Dr. Mario Caycedo to Mr. Hurst (Oct. 30, 2002)

(“Caycedo Letter”), J.A. 109. Coburn was involuntarily

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separated from the service on the same day.

On December 5, 2002, Coburn filed an application with the

ABCMR, asserting that he was discharged due to the improper

termination of the MEB and requesting reinstatement to allow

the MEB process to continue. ABCMR Appl., Dec. 5, 2002,

J.A. 104. The Board rejected Appellant’s application,

explaining in part:

The applicant has not provided any good reason to reinstate

him on active duty in order to complete physical disability

processing. The scant medical information available does

not indicate that the applicant was medically unfit for

retention, nor is there evidence that the physical disability

processing was unjustly terminated. Competent medical

authority determined that his medical condition was such

that he could be discharged. He has provided no medical

evidence to indicate otherwise.

ABCMR Mem. of Consideration (Aug. 21, 2003) (“2003

Decision”) at 6, J.A. 82. In his December 5, 2002 application to

the ABCMR, Appellant referenced the Article 15 action; but he

did not seek to challenge this action and the Board did not rule

on it.

On January 5, 2006, Coburn applied to the ABCMR for

reconsideration. He claimed: (1) that “[t]he doctor who

terminated the MEB had no authority to do so,” and (2) that

“[t]here was no medical justification to terminate the MEB.”

Req. for Recons., Jan. 5, 2006, J.A. 66. Coburn requested the

Board to “rescind the discharge orders and correct his records by

granting him medical retirement based on the current rating

from the Department of Veteran’s Affairs of 50% disability”; or,

in the alternative, to “correct his records to reflect 20 years of

service, entitling him to a length of service discharge”; or, “[i]n

the further alternative,” to “correct his records by returning the

processing of his case to the MEB stage, allowing the medical

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processing to take its course.” Id., J.A. 64.

Appellant’s January 5, 2006 application for reconsideration

referenced his NCOER and the Article 15 action. But as with

his December 5, 2002 application to the Board, Appellant did

not explicitly challenge these actions. On March 7, 2007, the

ABCMR rejected Appellant’s application for reconsideration.

See ABCMR R. of Proceedings (Mar. 7, 2007) (“2007

Decision”) at 4, J.A. 59. The Board found that the “overall

merits of the case . . . are insufficient as a basis for the Board to

reverse its previous decision.” Id. at 3, J.A. 58.

Coburn filed suit in District Court against the Secretary on

July 7, 2009, seeking review under the APA of the ABCMR’s

2003 Decision and its 2007 Decision. Coburn, 744 F. Supp. 2d

at 181. He sought a “declaratory judgment that the Army

unlawfully separated him for marijuana use, that the Army

unlawfully terminated his disability evaluation, that Army

regulations prohibited his separation, and that the ABCMR’s

decision-making process did not comply with statutory authority

or Army regulations.” Id.

The Secretary filed a motion to dismiss or, in the

alternative, for summary judgment; Coburn filed a cross-motion

for summary judgment. Id. at 179. The District Court granted

judgment in favor of the Secretary. Id. Coburn appeals, arguing

that the “District Court improperly dismissed [his] claim that his

separation for alleged marijuana use under the Army [QMP] was

unlawful,” and that the “District Court and the ABCMR erred in

ruling that the Army’s termination of [his] physical disability

evaluation processing was lawful.” Appellant’s Br. at 2.

II. Analysis

A. Standard of Review

There are several venerable legal principles that control our

review and disposition of this appeal. First, “[o]n review of a

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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, applying the same standards as the

district court.’” Fontana v. White, 334 F.3d 80, 81 (D.C. Cir.

2003) (citation omitted). The same is true for a motion to

dismiss. See Miller v. Hersman, 594 F.3d 8, 10 (D.C. Cir. 2010)

(“We review de novo both a summary judgment and a dismissal

for failure to state a claim.” (citations omitted)). Relatedly, “[i]n

a case like the instant one, in which the District Court reviewed

an agency action under the APA, we review the administrative

action directly, according no particular deference to the

judgment of the District Court.” Holland v. Nat’l Mining Ass’n,

309 F.3d 808, 814 (D.C. Cir. 2002) (citations omitted). In other

words, we “do not defer to a district court’s review of an agency

[action] any more than the Supreme Court defers to a court of

appeals’ review of such a decision.” Novicki v. Cook, 946 F.2d

938, 941 (D.C. Cir. 1991) (citation omitted).

Second, “[s]imple fairness to those who are engaged in the

tasks of administration, and to litigants, requires as 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). Therefore, we are bound to adhere to the

“hard and fast rule of administrative law, rooted in simple

fairness, that issues not raised before an agency are waived and

will not be considered by a court on review.” Nuclear Energy

Inst. v. EPA, 373 F.3d 1251, 1297 (D.C. Cir. 2004) (per curiam)

(citations omitted).

Third, it is generally understood that “decisions regarding

the correction of military records are reviewable under the

‘arbitrary and capricious’ standard of APA § 706.” Kreis v.

Sec’y of the Air Force, 866 F.2d 1508, 1513 (D.C. Cir. 1989)

(citing Chappell v. Wallace, 462 U.S. 296, 303 (1983)); see also

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Dickson v. Sec’y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995)

(applying 5 U.S.C. § 706 specifically to decisions of the

ABCMR). Typically, we are guided by the “strong but

rebuttable presumption that administrators of the military, like

other public officers, discharge their duties correctly, lawfully,

and in good faith.” Frizelle v. Slater, 111 F.3d 172, 177 (D.C.

Cir. 1997) (citations omitted) (internal quotation marks omitted).

However, an agency decision is owed no deference if it fails to

“give a reason that a court can measure . . . against the ‘arbitrary

or capricious’ standard of the APA.” Kreis, 866 F.2d at

1514–15; see also Tripoli Rocketry Ass’n, Inc. v. Bureau of

Alcohol, Tobacco, Firearms, and Explosives, 437 F.3d 75, 77

(D.C. Cir. 2006) (explaining that “no deference” is owed to an

agency’s “purported expertise” where its explanation “lacks any

coherence”).

B. Appellant’s QMP Claims

Coburn’s first argument on appeal is that the District Court

erred when it declined to address and dismissed his claim that

his separation under the Qualitative Management Program was

unlawful. The District Court refused to consider this claim after

finding that Appellant did not expressly raise it in the

administrative proceedings under review here. Appellant

challenges this finding, arguing that “he did expressly raise [the

QMP claim] in a 2001 application and the ABCMR expressly

incorporated the record of that decision into Mr. Coburn’s

subsequent ABCMR applications. The ABCMR itself thus

preserved the issue.” Appellant’s Br. at 14. Appellant’s

argument is belied by the record.

Coburn filed applications with the ABCMR in 2001, 2002,

and 2006, all of which were denied, in 2002, 2003, and 2007,

respectively. His 2001 application was the only one in which

Appellant challenged the QMP. And Appellant did not seek

judicial review of the Board’s 2002 decision rejecting his 2001

application. His current appeal to this court regards only the

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Board’s 2003 Decision and its 2007 Decision, and those

decisions did not address issues relating to the QMP because

Appellant did not raise the issues in his 2002 and 2006

applications to the Board. We agree with the District Court that

Coburn’s 2002 and 2006 applications “focused on what Coburn

described as the improper termination of his MEB.” Coburn,

744 F. Supp. 2d at 182 (citation omitted). Therefore, the District

Court did not err in dismissing Appellant’s QMP claim. The

“well-established doctrine of issue waiver . . . permits courts to

decline to hear arguments not raised before the agency where the

party had notice of the issue.” CSX Transp., Inc. v. Surface

Transp. Bd., 584 F.3d 1076, 1079 (D.C. Cir. 2009) (citations

omitted).

Appellant admits that the application giving rise to the

ABCMR’s 2003 decision “did not specifically address the issue

of the Article 15 and his alleged marijuana use.” Appellant’s

Br. at 28. The ABCMR’s denial in response to that application,

in turn, is based wholly on its findings regarding the MEB. See

2003 Decision at 6, J.A. 82. It is not surprising, then, that

Appellant’s subsequent 2006 application for reconsideration

focused on the very same issue that was the subject of the prior

application and denial: the MEB termination. See Req. for

Recons., Jan. 5, 2006, J.A. 66. While the application discusses

the QMP separation as background, it does not assert that the

QMP action was unlawful in its “Discussion,” see id., J.A.

67–72, posit issues related to the QMP separation as a basis for

error, see id., J.A. 66, or request that Coburn’s record be

amended with regard to these issues, see id., J.A. 64. And the

Board’s 2007 Decision focuses only on Appellant’s MEB claim.

Appellant claims that because the QMP issue was raised in

his 2001 application to the Board, and the Board expressly

incorporated the record of its 2002 Decision into its

consideration of Coburn’s 2002 and 2006 applications, the

Board “thus preserved the [QMP] issue.” Appellant’s Br. at 14.

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This is a specious argument. The 2001 application and the

Board’s 2002 Decision – both of which did address the Article

15 action and the NCOER – do not form the basis of this appeal.

See Coburn, 744 F. Supp. 2d at 181. Indeed, even Coburn

characterizes his claims as having “accrued . . . August . . . 2003,

and March 7, 2007, when the ABCMR issued final decisions on

his applications.” Compl. ¶ 14, J.A. 26. Furthermore, it is

obvious that an agency’s mere “incorporation” of a prior case

record in a pending dispute, without more, does not indicate that

the agency intends to revisit the issues previously resolved in the

prior case. Indeed, decisional references to records from prior,

resolved cases may help to define and limit the scope of the

issues in pending cases.

It is well understood that “[a] reviewing court usurps [an]

agency’s function [if] it sets aside [an] administrative

determination upon a ground not theretofore presented and

deprives the [agency] of an opportunity to consider the matter,

make its ruling, and state the reasons for its action.”

Unemployment Comp. Comm’n of Alaska v. Aragon, 329 U.S.

143, 155 (1946). We therefore decline to review Appellant’s

QMP claim because it was not raised with the ABCMR in the

administrative actions that are the subject of this appeal.

C. Coburn’s MEB Claims

1. MEB Initiation

Army Regulation 635-40 “establishes the Army Physical

Disability Evaluation System.” Army Reg. 635-40 ¶ 1-1. The

regulation sets forth a specific process governing how the Army

determines a soldier’s medical qualification for continued

service. First, “[t]he MTF [Medical Treatment Facility]

commander having primary medical care responsibility will

conduct an examination of a Soldier referred for evaluation.” Id.

¶ 4-9. Second, “[i]f it appears the Soldier is not medically

qualified to perform duty, the MTF commander will refer the

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Soldier to a MEB,” id., a group “composed of two or more

physician members,” Army Reg. 40-400 ¶ 7-3 (2011). Third, if

a soldier is referred to a MEB, a MEB is then “convened to

document a Soldier’s medical status and duty limitations insofar

as duty is affected by the Soldier’s status,” and “[a] decision is

made as to the Soldier’s medical qualification for retention.”

Army Reg. 635-40 ¶ 4-10; see also Army Reg. 40-400 ¶ 7-1.

Under the applicable regulatory process, a MEB referral

follows a medical examination; in other words, medical

examination and referral to a MEB appear to be distinct steps.

It also appears that the doctor who completes the medical

examination to determine whether to refer a case to a MEB is

not one of the doctors who serves as a member of the MEB.

Once a MEB has been initiated, the MEB process generally

takes precedence over separation under the QMP: “Except in

separate actions under Chapter 10 [Discharge in Lieu of Trial by

Court-Martial] and as provided in para 1-33b, disposition

through medical channels takes precedence over administrative

separation processing.” Army Reg. 635-200 ¶ 1-33(a). When

the MTF commander or attending medical officer

determines that a Soldier being processed for administrative

separation under chapters 7 [Defective Enlistments/Re-

enlistments and Extensions] (see sec IV) [Fraudulent

Entry], or 14 [Separation for Misconduct], does not meet

the medical fitness standards for retention . . . , he/she will

refer the Soldier to a Medical Evaluation Board (MEB) . . . .

The administrative separation proceedings will continue,

but final action by the separation authority will not be

taken, pending the results of MEB.

Id. ¶ 1-33(b). The QMP is governed by Chapter 19 of the same

regulation. See id. ¶ 19-1. The parties here do not disagree that

Coburn could not have been separated pursuant to the QMP if he

was involved with a MEB in a matter that was still pending

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disposition.

The Secretary contends that while Dr. Caycedo “initiated”

the MEB, Appellee’s Br. at 19, “Coburn was never actually

referred to the Medical Evaluation Board itself,” id. at 58. And

during oral argument before this court, counsel for the Secretary

argued that while there was “no question that the evidence in the

record says ‘MEB initiated,’” this was simply “loose language

to mean the medical disability processing started, not the MEB

was referred.” Oral Argument at 30:59, 31:30. Under the

Secretary’s theory of the case, “[t]here is no evidence in this

record that the Medical Treatment Facility Commander ever

referred anything to a Medical Evaluation Board.” Id. at 25:48.

Instead, the Secretary contends that it was the “medical

examination that precedes the MEB referral process” that was

terminated here, not the MEB itself. Id. at 25:01.

Coburn, in contrast, claims both that a MEB was “initiated”

and that he was “referred” to a MEB. Appellant’s Br. at 10, 17.

Coburn also appears to equate MEB “initiation” with a

“referr[al]” to the “Army Physical Disability Evaluation

System.” Id. at 9 (citation omitted). As indicated by the facts

recounted in the Background section of this opinion, Appellant

makes a compelling case in suggesting that he was referred to a

MEB.

In any event, it is clear that the parties disagree over

whether Dr. Caycedo terminated Coburn’s medical processing

before or after he was referred to a MEB. The resolution of this

issue influences the analysis of Appellant’s claim that his MEB

processing was improperly terminated.

The parties agree that the MEB was “initiated.” And, as

noted above, the record clearly supports this conclusion and, in

some instances, suggests Coburn was “referred” to a MEB. The

relevant evidence, some of which is outlined in the Background

section of the opinion, is fairly extensive. First, the record

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indicates that Dr. Caycedo requested that “MEB action on SFC

Coburn” be “terminate[d],” clearly implying that Coburn’s case

had come to involve the MEB process in some form. Caycedo

Letter, J.A. 109.

Second, the record also contains an “Individual Sick Slip”

from Dr. Caycedo, dated June 3, 2002, on which is written

“MEB initiated.” Individual Sick Slip, June 3, 2002, J.A. 244.

Third, two official responses to Coburn’s allegations that

the Army was attempting to separate him while his MEB

continued also demonstrate that a MEB had at least been

initiated. In July 2002, the Army wrote to a member of

Congress, apparently to respond to Coburn’s prior complaints to

the member that the Army was attempting to unlawfully

separate him. The response explains, “Sergeant Coburn’s

allegation that his unit was trying to separate him from the Army

while he was undergoing a medical evaluation board (MEB)

board [sic] is unsubstantiated.” Storm Letter, J.A. 112. It

further states that it was “determined that Sergeant Coburn did

not meet medical retention standards . . . ; therefore, he was

eligible for processing through the Physical Disability System.

On July 2, 2002, he was referred to process through the

MEB . . . .” Id. (emphasis added). The letter concludes that

Coburn was “being afforded every legal and medical recourse as

he processes through the MEB channels.” Id., J.A. 113.

Similarly, in January 2003, the Office of the Inspector

General responded to Coburn’s allegations that separation orders

were unlawfully issued in light of his ongoing MEB processing.

The response mentions that a physician had “initiated the MEB,”

and explains that it had been determined that Coburn “should be

retained until the medical process is completed” and “was in the

MEB process and the orders should not have been processed for

separation.” Response to Inspector General Action Req. (Jan.

30, 2003), J.A. 88 (citing Army Reg. 635-200 ¶ 1-33(a)).

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Fourth, Coburn’s “Physical Profile,” issued by Dr. Caycedo,

notes “MEB INITIATED.” Physical Profile, June 28, 2002, J.A.

245. It also includes a numerical designator of “3” and states

that his physical profile is “permanent.” Id. That numerical

designator indicates medical or physical issues that “may require

significant limitations,” Army Reg. 40-501 ¶ 7-3(d)(3) (2011),

and a permanent “3” profile requires “review[] by an MEB

physician or physician approval authority,” id. ¶ 7-4(b).

Further, an active-duty soldier with a “permanent” profile who

does not “meet the medical retention standards must be referred

to an MEB.” Id. ¶ 7-4(b)(1) (emphasis added). As noted,

Coburn was described as “not meet[ing] medical retention

standards,” and thus was “referred” to a MEB. Storm Letter,

J.A. 112.

Fifth, in July 2002, Dr. Caycedo noted in a Consultation

Sheet that Coburn was “PRESENTLY UNDERGOING MEB”

and needed a “FINAL EVALUATION PRIOR TO

COMPLETION OF MEB.” Consultation Sheet, July 2, 2002,

J.A. 255.

Finally, the ABCMR apparently assumed that the MEB

process had commenced. In its 2003 Decision, the Board notes

that Coburn was requesting in his application that “he be

reinstated on active duty in order to complete physical disability

processing,” and recognizes that Coburn’s “MEB was abruptly

terminated.” 2003 Decision at 2, 6, J.A. 78, 82.

In sum, while there is no doubt a MEB was initiated, there

is a question as to whether initiation and referral are distinct.

There is also a question as to whether Coburn was in fact

referred to a MEB as he claims.

2. MEB Termination

A MEB is “convened to document a Soldier’s medical

status and duty limitations insofar as duty is affected by the

Soldier’s status”; and it appears that the MEB, alone, is charged

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with the duty of making a decision “as to the Soldier’s medical

qualification for retention” once a case is submitted to it. Army

Reg. 635-40 ¶ 4-10. And, as noted above, the applicable

regulations indicate that the actions of examination and potential

referral to a MEB, see id. ¶ 4-9, are separate from a MEB

evaluation and decision, see id. ¶ 4-10. In other words, the

medical examination performed by an attending physician,

which may or may not lead to a referral to the MEB, is distinct

from a MEB evaluation.

The “termination” of Coburn’s MEB as it happened in this

case is unfathomable. First, the initiating physician was Dr.

Caycedo, and the terminating physician was Dr. Caycedo, acting

with the approval of Dr. Schirner. However, there is no

indication in the regulations that the referring physician can also

serve as one of the physician members of the MEB, and neither

party asserts that either Dr. Caycedo or Dr. Schirner served as

one of the physicians on the MEB. Second, we can discern

nothing in the regulations to indicate how these two physicians

(who were not members of a MEB) could terminate Coburn’s

case once it had been submitted to the MEB process. And,

finally, the Secretary’s argument that medical information in the

record justified the termination of Coburn’s MEB process is

perplexing, because no final decision had been issued by a

MEB.

3. The Judgment of the ABCMR Fails for Want of Reasoned

Decisionmaking with Respect to the MEB Issue

The findings of the ABCMR afford little help in

understanding the MEB issue. Indeed, the Board’s decisions

lack coherence and, thus, make it impossible for this court to

determine whether the judgments of the Board survive arbitrary

and capricious review under the APA. Therefore, the ABCMR

decisions fail the test of “reasoned decisionmaking.” See Motor

Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 52 (1983).

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The ABCMR upheld Coburn’s separation, because “[t]he

scant medical information available does not indicate that the

applicant was medically unfit for retention,” and because

“[c]ompetent medical authority determined that his medical

condition was such that he could be discharged.” 2003 Decision

at 6, J.A. 82. The ABCMR never explains, however, how the

“medical information” before it justified Coburn’s termination.

Nor does it explain how Dr. Caycedo or Dr. Schirner, who were

not members of a MEB, could “terminate” a case that Dr.

Caycedo had seemingly referred to a MEB, when no final

decision had been issued by a MEB.

The Board also fails to clarify whether Coburn’s case

actually reached a MEB or instead never left the initial MTF

examination phase. The Board references the Army’s letter to

explain that on “2 July 2002 [Coburn] was referred for

processing through the MEB.” Id. at 3, J.A. 79 (emphasis

added). But it also points to notes dated November 14, 2002

from the Inspector General’s office “indicat[ing] that the

applicant worked the system to the point that he was being

considered for a MEB; however, the MEB did not override his

QMP and he was discharged.” Id. at 5, J.A. 81. Later, the

Board cites the Inspector General’s case summary from January

2003 as explaining that Coburn was “undergoing MEB

processing” and that a MEB had been “initiated.” Id.

These various statements from the ABCMR decision, read

together, are incomprehensible. An agency’s decision need not

be “a model of analytic precision to survive a challenge.”

Dickson, 68 F.3d at 1404. And, certainly, we may “uphold a

decision of less than ideal clarity if the agency’s path may

reasonably be discerned.” State Farm Mut. Auto. Ins. Co., 463

U.S. at 43 (citations omitted) (internal quotation marks omitted).

But we may not “supply a reasoned basis for the agency’s action

that the agency itself has not given.” Id. (citation omitted). At

the very least, the Board must “provide an explanation that will

19

enable the court to evaluate the agency’s rationale at the time of

decision.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S.

633, 654 (1990); see also PSEG Energy Res. & Trade LLC v.

FERC, 665 F.3d 203, 208 (D.C. Cir. 2011) (“Among other

things, [a]n agency’s failure to respond meaningfully to

objections raised by a party renders its decision arbitrary and

capricious.” (alteration in original) (citation omitted) (internal

quotation marks omitted)). It failed to do so in this case.

In short, the ABCMR’s decision is “utterly unreviewable”

and simply lacks “reason[s] 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 agency’s] purported expertise.” Tripoli

Rocketry Ass’n, Inc., 437 F.3d at 77.

4. Instructions on Remand

“Where an agency ‘has failed . . . to explain the path it has

taken, we have no choice but to remand for a reasoned

explanation.’” Dickson, 68 F.3d at 1407 (alteration in original)

(citation omitted). On remand, the ABCMR must reconsider

Coburn’s case and, in so doing, address, at a minimum, the

following questions:

(1) Is a medical evaluation and referral to a MEB under

Army Regulation 635-40 ¶ 4-9 separate and distinct from an

evaluation and action taken by a MEB under Army Regulation

635-40 ¶ 4-10?

(2) Is it possible for a physician to “initiate a MEB” without

necessarily “referring” a case to a MEB? If so, what supports

this conclusion? To what extent do initiation and referral

overlap with the concept of “physical disability processing”?

(3) Was Coburn’s case referred to a MEB, or did Dr.

Caycedo mean something else when he wrote “MEB initiated”?

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(4) If Coburn’s case was not referred to a MEB, what in the

record and regulations supports this conclusion? If Coburn’s

case was not referred to a MEB, on what authority did Dr.

Caycedo and Dr. Schirner act when they “abruptly terminated”

the MEB?

(5) If Coburn’s case was referred to a MEB, on what

authority did Dr. Caycedo and Dr. Schirner act when they

“abruptly terminated” the MEB? In other words, how could Dr.

Caycedo and Dr. Schirner terminate Coburn’s MEB when they

were not members of the MEB?

III. Conclusion

The judgment of the District Court is affirmed in part,

vacated in part, and remanded to the District Court with

instructions to remand the case to the ABCMR for further

proceedings consistent with this opinion.

So ordered.