A U.S. Army veteran who saw combat in Vietnam claimed he had been wounded in action and should have received the Purple Heart. (Haselwander v. McHugh, Secretary of the Army (CADC No. 12-5297, 12/19/14)).
Twenty plus years after his service during the Vietnam War and his honorable discharge from the Army, Kenneth Haselwander petitioned the Army Board for Correction of Military Records (“Board”) to correct his records to reflect that he was wounded in combat, given medical treatment for his wounds, and therefore entitled to receive the Purple Heart. The President awards the Purple Heart to any active duty military member wounded or killed in action. No recommendation is required. Rather, all that is required is facts showing that a service member was “wounded, injured, or killed in hostile action, terrorist attack, or friendly fire, … the wound or injury required medical treatment, and … ‘the records of medical treatment … have been made a matter of official Army records.’” (Opinion p. 2)
Haselwander showed by eyewitness testimony that he was wounded in hostile action in Vietnam, patched up quickly by Army doctors, bandaged, then sent back into the fray. He also offered photographs showing him with bandages on his face and shoulder and wearing a “dispensary-issued scrub top.” (p. 3)
Nevertheless the Board rejected Haselwander’s petition based on his failure to show he had been “treated for a wound that was sustained as the result of enemy action.” (p. 3) The Board’s file contains what the appeals court called “critical findings,” namely that the eyewitness letters “clearly state that the applicant was wounded in action…” and in spite of the photographs “there is no available medical record to corroborate the photographs.” (p. 3)
The district court denied Haselwander’s petition to review the Board’s decision, so he took his case to the federal Court of Appeals for the D.C. Circuit. The court’s opinion is downright scathing in its criticism of the Board’s failure to do its job.
Before that court the Army argued for the first time that Haselwander had waived his request for correction of records since he never specifically identified the medical records to be changed, how they were to be changed, what medical treatment he supposedly received and who provided that treatment. (p. 4) The court scornfully dismissed this waiver argument, calling it a “red herring” and “groundless.” (p. 4)
Moving on to the merits of Haselwander’s case, the court finds “that the Board’s decision defies reason and is devoid of any evidentiary support.” (p. 4) Strong language for a reviewing court that should lead to a few red faces within the Army.
Going on to conclude the Board’s decision was “arbitrary and capricious.” (ouch!) The court lectures the Board that it “misapprehends its powers and duties as a record correction body when it denies an application because the applicant’s records are incomplete…” pointing out that 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.” (p. 5)
Read the full court decision if you want to get the full weight of the court’s disdain for how the Board handled this petition. (Just a few tidbits: “The Board’s decision runs in circles.” Its decision is “utterly unreviewable and simply lacks reasons that a court can measure against the arbitrary or capricious standard.””….lacks any coherence…” “we owe no deference to [the Board’s] purported expertise…” Its decision is “largely incomprehensible….and unworthy of any deference.” And on it goes.)
The appeals court reversed and vacated the Board’s decision with specific instructions to the Board to conduct “further proceedings consistent with this opinion.” (p. 21) In other words, correct the man’s record and award him the Purple Heart.
In short, Mr. Haselwander won this one hands down and should be receiving his records correction and his Purple Heart in fairly short order unless the Army wants to further irritate the appeals court.
