United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2021 Decided July 20, 2021
No. 20-5189
HUGH CAMPBELL MCKINNEY,
APPELLANT
v.
CHRISTINE WORMUTH, IN HER OFFICIAL CAPACITY AS
SECRETARY OF THE UNITED STATES ARMY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00371)
Seth A. Watkins argued the cause and filed the briefs for
appellant.
Sean P. Mahard, Special Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were R. Craig
Lawrence and Peter C. Pfaffenroth, Assistant U.S. Attorneys.
Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge,
and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM:
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PER CURIAM: Sergeant First Class (Retired) Hugh
McKinney served honorably in the armed forces for more than
twenty years. Several years after his retirement, he applied to
the Army for a Purple Heart on the ground that he suffered a
traumatic brain injury when a roadside bomb exploded near his
patrol vehicle in Iraq. The Army denied him a Purple Heart
because it found the evidence insufficient to establish that this
particular attack caused McKinney to suffer injuries that would
qualify for the award. The court recognizes McKinney’s years
of service and regrets the injuries he sustained during that
service. With respect to the award of a Purple Heart, however,
we are required to review the Army’s decision under a
deferential standard. Because the Army did not act arbitrarily
or capriciously when it denied McKinney the Purple Heart, we
affirm.
I.
The Purple Heart is America’s oldest military award.
General George Washington established the Purple Heart near
the end of the Revolutionary War. See U.S. DEP’T OF ARMY,
Reg. 600-8-22, MILITARY AWARDS ¶ 2-8a (2015) (hereinafter
“Army Reg. 600-8-22”). During World War II, the medal
became exclusively a recognition of combat injuries and
deaths. See Decorations, Medals, Ribbons, and Similar
Devices, 7 Fed. Reg. 7,477 (Sept. 23, 1942). The Purple Heart
“differs from all other decorations” in one aspect: “[A]n
individual is not ‘recommended’ for the decoration; rather, he
or she is entitled to it upon meeting specific criteria.” Army
Reg. 600-8-22 ¶ 2-8c. To be eligible for a Purple Heart, a
soldier must have suffered an injury resulting from an enemy
or hostile act; the injury must have required treatment; and the
treatment of the injury by a medical officer must be
documented in the soldier’s medical record. See id. ¶ 2-8k.
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Most commonly, an injured soldier is submitted for the
award by his chain of command. A soldier who “believes that
[he is] eligible for the [Purple Heart] but, through unusual
circumstances no award was made,” may also apply to the
Army Human Resources Command. Id. ¶ 2-8j(2). This
application must include corroborating documentation, such as
a “narrative describing the qualifying incident” and statements
from witnesses “who were personally present, observed the
incident, and have direct knowledge of the event.” Id. ¶ 2-
8j(2)(e) & (f). If the soldier’s application is denied, he may
appeal to the Army Board for Correction of Military Records
(the “Board”), which has been delegated the Secretary of the
Army’s statutory authority to decide when it is “necessary to
correct an error or remove an injustice” in any military record.
Legislative Reorganization Act of 1946, Pub. L. No. 79-601,
§ 207, 60 Stat. 812, 837 (codified as amended at 10 U.S.C.
§ 1552(a)(1)).
McKinney applied for a Purple Heart on the basis that
while serving in Iraq he suffered a traumatic brain injury
(“TBI”). A TBI is “an injury to the brain resulting from an
external force and/or acceleration/deceleration mechanism
from an event such as a blast, … which causes an alteration in
mental status.” J.A. 213. In October 2005, McKinney was on
patrol in a Humvee when an improvised explosive device
exploded about fifteen to twenty meters away on McKinney’s
side of the vehicle. The blast struck the Humvee with shrapnel,
dirt, and rocks, though none hit McKinney. The vehicle’s
tactical commander, David Gehrig, believed that McKinney
“took the brunt of the blast.” J.A. 398. Although everyone in
the vehicle “was shaken up and dazed,” Gehrig thought that
McKinney “was really dazed” and “seemed to not realize [that]
the blast had come and gone.” J.A. 398. Gehrig later described
McKinney as having his “mind … on a loop of the blast for a
few minutes.” J.A. 398. Despite this initial confusion,
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McKinney focused on ensuring the safety of his gunner, whose
position in the gun turret left him more exposed to the
concussive force of the blast.
After the explosion, McKinney and his fellow soldiers
searched for but did not find the insurgents who had placed the
bomb. They returned to their base, where McKinney gave a
sworn statement regarding the explosion. Military physicians
were unavailable at McKinney’s base, and McKinney,
concerned about putting fellow soldiers in jeopardy on the
journey, did not seek to travel to a nearby base for medical
attention. McKinney therefore never sought or received a
medical evaluation while in Iraq. He completed his deployment
and returned to the United States with his unit approximately
three weeks later. This October 2005 incident was neither
McKinney’s first combat mission nor his first encounter with
improvised explosive devices: A veteran of more than two
hundred combat missions, he had previously been in the
vicinity of two other detonations during his deployment.
McKinney retired from the Army in 2007. A few months
later, he suffered a stroke at the age of forty-six. A Department
of Veterans Affairs doctor, Dr. Robin DeLeon, evaluated
McKinney to determine whether his medical conditions were
service-connected, which means they were directly caused or
made worse by the veteran’s military service. Dr. DeLeon
concluded that they were. Although he found no clear cause of
McKinney’s stroke, Dr. DeLeon believed that it was
“connected to the [improvised explosive device] exposures.”
J.A. 413. He later opined that of McKinney’s reported
exposures, only the October 2005 blast was consistent with
causing a TBI. Veterans Affairs affirmed that McKinney had a
total disability that was service-connected and permanent,
which entitled him to lifetime free medical care and other
benefits for 100% disabled veterans.
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After receiving these evaluations, McKinney applied to
the Army Human Resources Command for a Purple Heart in
connection with the October 2005 blast. His attached statement
recounted that he “lost consciousness for about 5–10 seconds”
after the explosion. J.A. 380. McKinney also relied on the
statement from Gehrig, particularly for his description of
McKinney’s mind being “on a loop” after the blast. J.A. 398.
McKinney submitted several medical opinions finding that he
had suffered a TBI, though only Dr. DeLeon’s tied it
definitively to the October 2005 attack.
Human Resources Command requested that an Army
doctor, Dr. Michael Sullivan, review McKinney’s medical
records. Dr. Sullivan concluded that, although “[t]here is no
doubt … that [McKinney] was exposed to concussive forces,
his TBI appears to be a cumulative [e]ffect as opposed to being
caused by a specific event.” J.A. 370. Human Resources
Command denied the application, explaining that McKinney
failed to provide sufficient documentation that he received
treatment in connection with a TBI caused by the October 2005
attack. McKinney requested reconsideration, and Human
Resources Command again denied his request.
McKinney appealed to the Board. As the applicant,
McKinney had the burden of overcoming a “presumption of
administrative regularity” by “proving an error or injustice by
a preponderance of the evidence.” 32 C.F.R. § 581.3(e)(2). The
Board must deny an application “when the alleged error or
injustice is not adequately supported by the evidence.” Id.
§ 581.3(b)(4)(iv).
The Board determined that McKinney did not qualify for
a Purple Heart. It found there was no evidence that McKinney
“was treated by medical personnel for an injury/wound he
received as a result of hostile action on or near 9 October
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2005.” J.A. 347. Neither McKinney’s statement made a few
days after the blast nor Gehrig’s statement indicated that
McKinney was wounded; Gehrig indicated only that
McKinney was dazed. The Board also relied upon Dr.
Sullivan’s conclusion that McKinney’s TBI was caused by the
cumulative effect of “multiple concussive forces,” not a
specific event. J.A. 348.
McKinney filed a claim under the Administrative
Procedure Act (“APA”) in the District Court for the District of
Columbia, alleging the Board’s action was arbitrary and
capricious. The court granted summary judgment to the Army.
After assessing the medical evidence, the district court held it
was not arbitrary or capricious for the Army to deny the award
because McKinney failed to establish that his injury would
have required treatment by a medical officer. McKinney timely
appealed.
II.
This court has exercised jurisdiction to review a denial of
a Purple Heart award. Cf. Haselwander v. McHugh, 774 F.3d
990, 996 (D.C. Cir. 2014). Under the APA, “final agency action
for which there is no other adequate remedy in a court [is]
subject to judicial review.” 5 U.S.C. § 704. The Board’s
decision to deny an application constitutes final agency action.
32 C.F.R. § 581.3(g)(2)(i)(A).
Several principles guide the relevant standard of review.
First, we review the district court’s grant of summary judgment
de novo. See Kidwell v. Dep’t of the Army, 56 F.3d 279, 286
(D.C. Cir. 1995). Second, the Board’s actions in correcting
military records will be set aside “if they are ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Haselwander, 774 F.3d at 996 (quoting
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5 U.S.C. § 706(2)(A)). Third, the Board’s decision must
demonstrate reasoned decisionmaking. See id.
Our review of Board decisions involves “an unusually
deferential application of the ‘arbitrary or capricious’
standard.” Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514
(D.C. Cir. 1989). Because of the Secretary’s broad statutory
discretion, “[i]t is simply more difficult to say that the
Secretary has acted arbitrarily if he is authorized to act ‘when
he considers it necessary to correct an error or remove an
injustice.’” Id. (quoting 10 U.S.C. § 1552(a)) (emphasis in
original). Moreover, we cannot lose sight of the fact that
“‘[j]udges are not given the task of running the Army,’” so our
review asks only if the Board’s decisionmaking “process was
deficient, not whether [its] decision was correct.” Id. at 1511
(quoting Orloff v. Willoughby, 345 U.S. 83, 93 (1953))
(emphasis added).
The parties suggest that the Board’s decision here must
also be supported by substantial evidence. But that standard of
review applies only to formal adjudications. 5 U.S.C.
§ 706(2)(E); Phoenix Herpetological Soc’y v. U.S. Fish &
Wildlife Serv., 998 F.3d 999, 1005 (D.C. Cir. 2021). The
Board’s adjudication of a denial of a Purple Heart is informal
and so that standard does not apply here. 1 We review the
1
Congress sometimes specifies by statute that a particular informal
adjudicatory decision be supported by substantial evidence.
Adjudications to correct a military record must be supported by
substantial evidence if the Board adjudicating the claim has been
“designated as a special board by the Secretary.” 10 U.S.C.
§ 1558(b)(1)(A) & (B); id. § 1558(f)(3)(B). The record contains no
evidence that the Secretary designated the Board reviewing
McKinney’s application as a special board, nor do the parties suggest
that such a designation was made.
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Board’s informal adjudication under the arbitrary and
capricious standard.
III.
To qualify for a Purple Heart, McKinney had to establish
three elements: (1) that he received a qualifying injury; (2) that
the injury required treatment by a medical officer; and (3) that
the medical treatment was documented in his records. Army
Reg. 600-8-22 ¶ 2-8k.
Not all injuries received during military service qualify for
a Purple Heart. As relevant here, a “[m]ild traumatic brain
injury or concussion” qualifies only if it was “severe enough to
cause either loss of consciousness or restriction from full duty
due to persistent signs, symptoms, or clinical finding, or
impaired brain function for a period greater than 48 hours from
the time of the concussive incident.” Id. ¶ 2-8g(6). But a mild
TBI that “do[es] not either result in loss of consciousness or
restriction from full duty for a period greater than 48 hours due
to persistent signs … of impaired brain function” does not
qualify for the Purple Heart. Id. ¶ 2-8h(13).
Although it is undisputed that McKinney suffered a TBI
because of his military service, the Board reasonably
determined that McKinney did not demonstrate a qualifying
injury caused by the October 2005 attack. It relied on
McKinney’s thorough statement from the day after the
explosion, in which he did not state that he lost consciousness,
report any symptoms of impaired brain function, or indicate he
was otherwise injured in the blast. Crediting this
contemporaneous statement, rather than McKinney’s later
recollections, was neither arbitrary nor capricious. Moreover,
Gehrig, McKinney’s only witness, did not indicate that
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McKinney was injured following the incident, only dazed.
Being dazed would not qualify for a Purple Heart.
In the same vein, we think the Board’s determination that
McKinney’s TBI resulted from a cumulative effect, as opposed
to the October 2005 attack, was reasonable. McKinney relies
on Dr. DeLeon’s assessment that the October 2005 attack
caused McKinney’s TBI and led to his subsequent stroke. The
Board’s decision takes account of that assessment, but it
credited Dr. Sullivan’s subsequent opinion that cumulative
exposures caused his TBI. The Board therefore “reasonably
reflect[ed] upon the information contained in the record and
grapple[d] with contrary evidence.” Fred Meyer Stores, Inc. v.
NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017). Because the Board
complied with these standards, we cannot second-guess its
decision. The Board permissibly found the evidence lacking
that McKinney received a qualifying injury in the October
2005 attack, so we need not address McKinney’s arguments as
to the second and third requirements.
McKinney also faults the Board for its brief analysis. The
analysis, however, has sufficient clarity for us to discern the
Board’s rationale. See Dickson v. Sec’y of Def., 68 F.3d 1396,
1404 (D.C. Cir. 1995) (“[A]n agency’s decision [need not] be
a model of analytic precision to survive a challenge.”). This is
not a case in which the Board simply inserted “boilerplate
language” or “parrot[ed] the language” of the governing
regulation “without providing an account of how it reached its
results.” Id. at 1405. On the contrary, the Board’s decision here,
while concise, satisfies the APA’s requirement to “minimally
contain a rational connection between the facts found and the
choice made.” Id. at 1404 (cleaned up). The Board’s decision
meets that minimal standard.
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***
Sergeant First Class (Retired) McKinney sacrificed a great
deal in service to the Nation. This decision in no way detracts
from his honorable service or discounts the severity of his
medical problems in the years since his retirement. In deciding
this case, however, the court is limited to considering the
reasonableness of the Board’s decision. Under these standards
we affirm the judgment of the district court.
So ordered.