MILITARY PERSONNEL LAW BLOG
Haselwander v. McHugh: The D.C. Circuit Restores Fairness to Its Review of the Boards for the Correction of Military Records
Since the 1989 decision of the U.S. 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”) wasn’t 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 D.C. 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 U.S.C. § 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 formulation dispenses with the determinations of whether the matter at bar is “unsupported by substantial evidence” and/or “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,” not an onerous task. As one expert has noted, the unusual deference accorded it means “the military typically has little to fear from the federal courts.” A recent decision of the D.C. Circuit, Haselwander v. McHugh, may change that, if only slightly.
While the panel 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 to the U.S. Claims Court, the predecessor to the U.S. Court of Federal Claims and the Federal Circuit, the D.C. Circuit in Haselwander approvingly quoted Yee v. United States, 512 F.2d 1383, 1387 (Ct. Cl. 1975)(“when a correction board fails to correct an injustice clearly presented in the record before it, it is acting in violation of its statutory mandate.”), and 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,” the D.C. 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, “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.”
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, “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.”
In 2010, Mr. Haselwander sought review of the ABCMR decisions in the U.S. 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 District Court noted: "… it 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 District 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 decision was not unlawful. By the District 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 District 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 District 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 D.C. 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 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 District 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 course 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 U.S.C. § 1552. Haselwander points in the right direction.
*This article is also published at Jurist.org.
Senators Boxer, Wyden, and Markey, have introduced much-needed legislation, the “Legal Justice For Servicemembers Act,” to overhaul protections for military whistleblowers, including victims of sexual harassment and assault, who frequently suffer reprisals for exposing fraud, waste, and abuse within the armed forces. Common forms of reprisal include career-ending reprimands and performance evaluations. The bill also seeks to reform the key mechanism through which victims of reprisal may seek redress—the boards for the correction of military records (BCMRs), which I address here. I will address the proposed changes to whistleblower protections in a subsequent article.
The title of “records correction boards” fails to convey the scope and seriousness of the boards’ enterprise. Congress created the BCMR system in 1947 to rid itself of the burden of private members’ bills addressing military injustices and erroneous records. The boards are, as the Army has stated, the "Supreme Court" for military personnel law disputes. Each military department has a BCMR, as well as the Department of Homeland Security, which adjudicates claims from members of the Coast Guard.
The BCMRs are described as "unique adjudicative mechanisms unlike traditional civil, criminal, or administrative courts." They are poorly understood and infrequently discussed, yet their importance to service members and veterans is inestimable. The BCMRs have decided tens of thousands of applications from military personnel and veterans alleging errors and injustices in their military records. Applications range from simple matters such as incorrect service dates or rates of pay to highly complex ones entailing the failure to diagnose and treat physical and psychiatric conditions, allegations of discrimination in all its varieties, and the military’s failure to obey statutes and regulations, as well as claims of reprisal.
The BCMRs are also the primary source of potential redress for service members who have pursued other avenues of relief such as complaints to commanders, the inspectors general, military equal opportunity organizations, and a variety of subordinate military boards. At stake in many instances are careers, reputations, promotions, retirements, and large sums of money. For most applicants the BCMRs are the final resort, as few pursue judicial review of adverse decisions.
The exceptional importance of the BCMRs is not matched to the procedures they employ to adjudicate applications. In response to constituent complaints about the BCMRs, Congress directed the Department of Defense in 1996 to report on their procedures. The report raised several red flags concerning board procedures and made corresponding recommendations for change, which were largely ignored. Beginning in 2009, Freedom of Information Act requests to the BCMRs further exposed a system devoid of procedural fairness and one that is structurally rigged against applicants. While the BCMRs are statutory boards, Congress apparently has never held an oversight hearing concerning their operation.
Key findings from the 1996 DoD Report and FOIA requests (on file with the author) include: (1) BCMR members serve voluntarily on a part-time basis in addition to their full-time employment with the given military department; (2) BCMR members receive little meaningful training prior to or during their board service; (3) BCMR members are not required to, and typically do not, review actual application materials; (4) BCMR staff prepare recommended decisions which voting members almost invariably accept; (5) on average Army and Navy BCMR members spend less than five minutes on each application; and (6) personal appearance hearings are a rarity.
Most disturbing, however, are the measures taken by the staff of the Army, Navy, and Coast Guard BCMRs to keep applicants and their submissions away from actual voting members. Only the Air Force requires its members to review applications in advance of decisional meetings. As the Navy has noted:
Generally the Board members do not prepare in any way for the applications that they will be called upon to decide during their regularly scheduled meetings. Simply put they do not see or have any knowledge of the cases they will decide before they meet.
That approach, shared by the Army and Coast Guard BCMRs, results in the complete dependence by BCMR members on the staff who prepare and present applications. Without personally reviewing all applications, BCMR members cannot know if staff members have accurately and fairly presented the facts and law of a case. And they often do not. In the case of the Navy BCMR, staff also can serve as voting board members, and often do.
An information sheet obtained from the Army BCMR through FOIA purports to prepare new members for their first board meeting, explaining:
There are usually about 90 cases divided into three stacks by potential decision – Grant, Partial Grant, and Deny. Many Board members choose to review the grant cases first as [a] method for getting warmed up. ... Cases range in sizes from 5-10 pages up to a wrapped bundle with several folders of 30-40 pages each. In the beginning, take a few minutes to review the case. As you become familiar with cases you will know exactly where you need to begin reviewing.
The Board members then are instructed to initial their vote on each case. “It is the Chair’s responsibility to review each case for the two board member’s vote initials, initial the Chair’s final vote and sign each case to complete the process.” This strongly indicates that the three board members do not convene in a traditional sense, discuss each case, vote on the case just discussed, and then move to the next. Rather, each member goes through the stack of cases initialing his or her decisions. According to the Army: “If you come across a decision on a case that you may not agree with, you can do two things. The first is to bring up the case and summarize the point of disagreement orally to the other two Board members, or tell the Chair of the Board that you believe the case needs further review and discussion and either it hand it to the Chairman or put it aside where it won’t be mixed in with the other cases.” Board member discussion of a case thus is called for only where a member disagrees with a recommended decision of the staff.
Many applications to the BCMRs raise issues of credibility, which in other adjudicative contexts are resolved through witness testimony. While Congress authorizes the BCMRs to hold personal appearance hearings, and applicants frequently request them, the BCMRs rarely do, even where highly material facts are disputed. The Navy BCMR has not held a hearing in over 20 years. The Army held one hearing in a span of four years, while deciding over 36,000 applications during the same period.
Once decided, the BCMRs consign their decisions to a dysfunctional website (circa 1995 in design and construction) that only the most patient researchers will find beneficial. Such cavalier treatment of past decisions is consistent with the BCMRs’ belief that they are not bound by precedent, though federal courts state otherwise. The BCMRs all report that they do not consult past decisions or maintain a catalogue of past decisions for staff and member reference. As the reader can readily discern, the BCMRs are the “wild west” of legal practice.
If enacted, the Legal Justice For Servicemembers Act would do much to remedy the grave problems plaguing the BCMRs. The legislation would require full-time service of BCMR members, with each panel hearing being presided over by an administrative judge. BCMR membership would be limited to a period of five years. The BCMRs would be obligated to assist applicants in obtaining relevant military records and to transmit such records to applicants. The legislation also would require meaningful training for BCMR members.
The legislation also remedies the failure of the BCMRs to hold personal appearance hearings by directing the boards to “hold an evidentiary hearing on a claim that presents a genuine issue of material fact, if requested by an applicant.” Concerning the BCMRs’ treatment of its own decisions, the legislation would require the boards to characterize their decisions as precedential or non-precedential and would permit applicant’s to cite and rely on specific precedential decisions.
BCMR decisions are subject to judicial review, albeit under an “unusually deferential” standard of review. The legislation would remove the basis for that standard by limiting the discretion available to the military secretaries in deciding whether or not to implement a BCMR decision, and by mandating review under the standards of the Administrative Procedure Act.
To be sure, the BCMRs and their staffs are not to be wholly blamed for the disgraceful state of BCMR affairs. They do not control their budgets and levels of staffing. The number of applications received by the BCMRs, especially the Army and Navy, is daunting and has grown steadily. It is unsurprising that efficiencies are sought. While the Legal Justice For Servicemembers Act is no panacea for the multitude of ills plaguing the BCMR process, it is a bold step in the right direction. Congress should hold hearings on the BCMRs at its earliest convenience and give the bill its fullest consideration.
* This article is also published at: