JURIST Guest Columnist Raymond J. Toney of the Law Offices of Raymond J. Toney discusses recent changes to the US military’s records review process …

Since the 1989 decision of the US Court of Appeals for the District of Columbia Circuit in Kreis v. Secretary of the Air Force, in which the court held that the already deferential standard of review of the Administrative Procedure Act (APA) was not deferential enough for decisions of the Boards for the Correction of Military Records (BCMR), plaintiffs contemplating a judicial challenge to such decisions have had to seriously ponder whether “the game is worth the candle.” The DC Circuit employed the gambler metaphor in concluding that the broad congressional grant of discretion to the military secretaries in correcting military records, found at 10 USC § 1552, required the courts to apply an “unusually deferential” standard of APA review to BCMR decisions. The consequence of its decision, the court noted, was that “[p]erhaps only the most egregious decisions may be prevented under such a deferential standard of review.”

Twenty-five years on, Kreis has been widely applied, with arguably disastrous consequences for military personnel and veterans seeking judicial examination of BCMR decisions. The APA’s inaptly named “arbitrary and capricious” standard (which fails to include analysis of whether the case at bar is “unsupported by substantial evidence” and/or is “otherwise not in accordance with law”) already afforded ample deference to military decisions. With Kreis added to it, the courts merely need to engage in a connect-the-dots exercise of finding a “rational connection between the facts found and the choice made.” This is not an onerous task. As one expert has noted [PDF], the unusual deference accorded to the military means “[it] typically has little to fear from the federal courts.”

A recent decision from the DC Circuit, Haselwander v. McHugh, may change that, if only slightly. While the panel’s decision obviously does not overrule Kreis, it does spell out a three-step process of review that helps restore considerations of fairness and justice to what has arguably become a review process largely unconcerned with those matters. The first two steps explained by the court are familiar and uncontroversial: the court owes the district court no particular deference and reviews BCMR decisions de novo and the court must set aside BCMR decisions not supported by reasoned decisionmaking.” It is the final step that offers plaintiffs and appellants a glimmer of hope.

Reaching for assistance from the US Claims Court, the predecessor to the US Court of Federal Claims and the Federal Circuit, the DC Circuit in Haselwander approvingly quoted Yee v. United States, stating, “[W]hen a correction board fails to correct an injustice clearly presented in the record before it, it is acting in violation of its statutory mandate.” It also quotes Caddington v. United States: “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,” the DC Circuit concluded that the Army Board for the Correction of Military Records (ABCMR) “failed to fulfill its statutory mandate and that the denial of Haselwander’s application was arbitrary and capricious.”

The facts of the case are illuminating. Mr. Haselwander was serving in Vietnam when an enemy rocket exploded near his tent and injured him. He was taken to an aid station where he was bandaged and photographed. While he was being medically tended, he learned that some of his dogs (he served with the 49th Infantry Scout Dog Platoon) had also been injured in the attack and he immediately left to assist them. He flew with one of the wounded dogs to a veterinary hospital. The medical staff that treated Mr. Haselwander apparently did not complete his paperwork. The Army did not award him the Purple Heart for his wounds.

Mr. Haselwander first applied to the ABCMR in 2007. He requested that his records be corrected to show that he was awarded the Purple Heart. He supplied photographs of himself in bandages taken on the day of the attack and identified witnesses to the attack, one of whom did receive the Purple Heart. The ABCMR denied his application, stating, “[T]here 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.”

Mr. Haselwander applied a second time, providing additional evidence in the form of letters from fellow soldiers who were eyewitnesses to the rocket attack, to Mr. Haselwander’s wounds and to his medical treatment. He also provided a “Daily Staff Journal” of June 6, 1966 that noted the rocket attack and the human and canine casualties of the attack. The journal entry did not identify the victims by name. The ABCMR again denied his application. According to the Board, “[T]he 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.”

In 2010, Mr. Haselwander sought review of the ABCMR decisions in the US District Court for the District of Columbia. The error alleged by Haselwander was the failure of the Army to record his injuries and medical treatment. He contended the ABCMR’s decision not to correct his records and award him a Purple Heart was arbitrary, capricious and unsupported by substantial evidence.

Rejecting Mr. Haselwander’s claim, the court noted:

[I]t is patently clear from the record that the ABCMR’s decision to deny a recommendation of correction with regard to plaintiff’s military record was properly based on the lack of substantiating medical records, as required by the strict regulatory criteria for award of the Purple Heart.

Applying the “unusually deferential” standard of review initiated by Kreis, the court concluded, “because the record clearly shows that the ABCMR examined the relevant data and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made, the ABCMR’s decision was not unlawful.”

By the court’s reasoning, because the medical staff treating Mr. Haselwander failed to complete paperwork for his injuries (seemingly because Mr. Haselwander left medical treatment to assist the wounded dogs), no official medical records of his injuries existed and because no medical records of his injuries existed, Mr. Haselwander was not entitled to the Purple Heart. The court was technically correct: if there is no medical record, and there was none, the criteria for awarding the Purple Heart are not met. The court evinced no concern that the Army might have erred by failing to complete a medical record that would have entitled Mr. Haselwander to the Purple Heart or that the purpose of the ABCMR is to remedy such errors.

Reversing the district court, the DC Circuit found that the ABCMR “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…” The ABCMR’s decision, the court concluded, “defies reason and is devoid of any evidentiary support” and is “patently unfair,” “myopic” and “unworthy of any deference.” A starker contrast with the view of the court is hard to imagine.

Haselwander illustrates well the blunt instrument that the “unusually deferential” standard of review so often is. Having no concern for the fairness of a decision rendered pursuant to a statute that arguably has fairness as its raison d’être, Kreis is ill conceived, notwithstanding the logic and precedent on which it is based. A judicial filter so coarse that only the “most egregious” military decisions are prevented, while “merely egregious” ones get a pass, is repugnant to the principle of co-equal government, not to mention justice. And courts should not have to choose between following the letter of Kreis and ignoring the remedial spirit of 10 USC § 1552. Haselwander points in the right direction.

Raymond J. Toney practices military law from his offices in Emeryville, CA. He has represented numerous veterans suffering from combat-related PTSD. His web address is www.militarylawpro.com.

Suggested citation: Raymond J. Toney, Haselwander v. McHugh: DC Circuit Restores Fairness to Its Review of the Boards for the Correction of Military Records, JURIST – Professional Commentary, Feb. 6, 2015, http://jurist.org/hotline/2015/02/raymond-toney-military-records.php.