UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2111
STEVEN E. PORTNER, U.S. Army, Captain (Retired),
Plaintiff - Appellant,
v.
JOHN MCHUGH, Secretary of the Army,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:09-cv-00473-LMB-TCB)
Submitted: August 25, 2010 Decided: September 22, 2010
Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elizabeth D. Ferrill, Elizabeth M. Burke, FINNEGAN, HENDERSON,
FARABOW, GARRETT & DUNNER, L.L.P., Washington, D.C., for
Appellant. Neil H. MacBride, United States Attorney, Deirdre
Brou, Special Assistant United States Attorney, Kevin J.
Mikolashek, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven E. Portner appeals the district court’s order
granting summary judgment in favor of the Government on his
Administrative Procedure Act (“APA”) complaint. We affirm.
Portner, who served in both the Army and Navy as a
member of the special forces, challenged the decision of the
Army Board for Correction of Military Records (“ABCMR”) not to
correct Block 10A on Portner’s DA (Department of the Army) Form
199. Portner argued he was entitled to such a correction
because he was injured during wartime, and his wartime injuries
culminated in a disability that resulted in his retirement from
the Army in 1984. The ABCMR concluded that Portner’s disability
was based on a 1984 hard landing during a parachute exercise
(rather than any injury sustained earlier), and because the
disability was not incurred during a recognized time of war,
denied Portner’s request for a correction.
Fed. R. Civ. P. 56(c) requires a district court to
enter summary judgment if the pleadings, depositions, answers to
interrogatories and admissions on file together with affidavits,
if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law. Fed. R. Civ. P. 56(c). The question to be
resolved in ruling on a motion for summary judgment is “whether
a fair-minded jury could return a verdict for the plaintiff on
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the evidence presented.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986).
To succeed on his claim under the APA, Portner must
demonstrate by clear and convincing evidence that the ABCMR’s
November 2007 decision was arbitrary, capricious, contrary to
law, or unsupported by substantial evidence. Randall v. United
States, 95 F.3d 339, 348 (4th Cir. 1996); Roetenberg v.
Secretary of the Air Force, 73 F. Supp. 2d 631, 636
(E.D. Va. 1999). In reviewing a grant of summary judgment on
appeal, this court employs the same standards used by the
district court. Randall, 95 F.3d at 348. Thus, the function of
this court is not to reweigh the evidence presented to the ABCMR
but to simply determine whether the ABCMR’s conclusion was
supported by substantial evidence. See id. (quoting Heisig v.
United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983)).
On appeal, Portner argues that the ABCMR erred in its
application of Army Regulation (“AR”) 635-40. Specifically, he
claims that the regulation should be read to allow an
affirmative response in Block 10A when a soldier’s unfitting
condition was caused by injuries sustained during wartime, even
when those injuries did not render the soldier unfit until a
later date. The Government urges us to read the regulation in
context, and in doing so, conclude that the relevant inquiry
under the regulation is not when the initial injury leading to
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the disability was first sustained, but rather when the
disability itself was incurred.
According to the regulation, certain “advantages”
accrue to soldiers who are retired for physical disability and
later return to work for the Federal Government “when it is
determined that the disability for which retired was incurred
under specific circumstances.” AR 635-40, Paragraph 4.19(j).
One such specific circumstance is the requirement that the
disability “was incurred in [the line of duty] during a period
of war as defined by law.” Id. at Paragraph 4.19(j)(2).
Because it is undisputed that Portner did not have a disability
until 1984, which was not a period of war, he is unfortunately
not entitled to the benefits he seeks.
Accordingly, we find the ABCMR’s conclusion was
supported by substantial evidence and the district court did not
err in granting the Government’s motion for summary judgment.
We therefore affirm the judgment of the district court. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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