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Jacobson v. Dep't of the Army Board for Correction of Military Records

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 29, 2009

BOBBY N. JACOBSON, PLAINTIFF,
v.
DEPARTMENT OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, DEFENDANT.

The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge

ORDER*fn1

Previously pending on this court's law and motion calendar for May 14, 2009, was defendant's motion for summary judgment, filed April 6, 2009. Plaintiff appeared in pro se. Defendant was represented by Bobbie Montoya. Having reviewed the filings in support and in opposition to the motion, and having heard oral argument, the court now issues the following findings and recommendations.

BACKGROUND

Plaintiff, who is 78 years of age, seeks an order of this court directing the U.S. Department of the Army, Board for Correction of Military Records ("ABCMR"), to issue him a "Purple Heart" based on plaintiff's 1950 Army service in the Korean War during which plaintiff allegedly sustained shrapnel wounds to his back and chest wall while engaged in hostile action.*fn2

Plaintiff enlisted in the Regular Army on July 24, 1950 for a period of three years; he was released from active duty on September 29, 1953 with an undesirable discharge. Record of Proceedings, Aug. 17, 2006, at p. 2. Plaintiff describes the underlying facts as follows (Complaint, at pp. 1-2):

I was a soldier during the Korean War. In a firefight, a mortar round exploded behind me on the right side of my back. I also took shrapnel in my leg that I pulled out by hand. At first opportunity I went to the battalion and station and told the doctor there what had happened. He gave my back a quick look and said there was nothing wrong with me.

In 2003 I was in the Sutter Roseville, CA. Hospital for elective surgery and x-rays were taken that show shrapnel in my chest wall. I obtained those x-rays, made copies, and sent the copies, along with an explanation of what happened in Korea, to the ABCMR and asked it to change my records and issue me the Purple Heart for the wound. The Board has refused to do so and has forced me into the court for justice.

Plaintiff has submitted the following documentation demonstrating compliance with administrative procedures for obtaining the requested correction of his records:

1) January 11, 2008 x-ray report of plaintiff's abdomen by "Northern California HCS" (ordered by Dr. Michael Ashcraft), demonstrating in pertinent part a "Metallic fragment identified near the right chest wall, adjacent to the right 7th rib, likely shrapnel;" confirmed "outside chest x-ray report" submitted by plaintiff on July 12, 2007.

2) August 24, 2006 cover letter from ABCMR Director Carl Chun, and copy of the Board's August 17, 2006 Record of Proceedings, denying plaintiff's December 26, 2005 application to be awarded the Purple Heart. Director Chun informed plaintiff that the Board has nonetheless identified an administrative error in plaintiff's records that would be corrected, viz., that plaintiff had met the criteria for, and his records would be corrected to show, an award of the Korean War Service Medal. The Board's Record of Proceedings demonstrates it conducted a substantive review*fn3 of plaintiff's reconstructed military record*fn4 and concluded it did not "demonstrate the existence of a probable error or injustice." Record of Proceedings, Aug. 17, 2006, at p. 5. The Board reasoned, "Evidence did not contain any general orders which awarded the applicant the Purple Heart. There were no Army medical records available which show the applicant was wounded or treated for wounds as a result of hostile action during his service in Korea. In the absence of such evidence, there is insufficient basis for award of the Purple Heart in this case." Id., at p. 4.

3) June 19, 2007 letter from plaintiff to the Board challenging its August 2006 decision.

4) September 20, 2007 cover letter from ABCMR Director Catherine C. Mitrano, and copy of the Board's September 13, 2007 Record of Proceedings, denying plaintiff's request for reconsideration despite submission of additional evidence including an "article from the United States Army in the Korean War," a "morning report," and additional medical records.*fn5

DISCUSSION

I. SUMMARY JUDGMENT STANDARDS UNDER RULE 56

Summary judgment is appropriate when it is demonstrated that there exists "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).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322, 106 S.Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. at 2553.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11, 106 S.Ct. at 1356 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).*fn6

II. STANDARDS OF REVIEW FOR CORRECTION OF MILITARY RECORDS

Pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702,*fn7 federal courts have subject matter jurisdiction to review decisions of the Army Board for Correction of Military Records. See Guerrero v. Stone, 970 F.2d 626, 628 (9th Cir. 1992) (finding subject matter jurisdiction to review decisions of the ABCMR pursuant to § 702, which "waives sovereign immunity for equitable actions brought pursuant to 28 U.S.C. § 1331 [federal question jurisdiction]").*fn8 After noting the statutory authority accorded boards for correction of military records,*fn9 the Guerrero court identified the standard for judicially reviewing the decisions of the various boards (ibid.):

The Supreme Court has stated, "Board [for Correction of Military Records] decisions are subject to judicial review and can be set aside if they are arbitrary, capricious, or not based on substantial evidence." Chappell v. Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983). Moreover, as stated in Secretary of Navy v. Huff, 444 U.S. 453, 458, n. 5, 100 S.Ct. 606, 609, n. 5, 62 L.Ed.2d 607 (1980), "the federal courts are open to assure that, in applying [military] regulations, commanders do not abuse the discretion necessarily vested in them." See also Sanders v. United States, 594 F.2d 804, 811, 219 Ct.Cl. 285 (1979) ("Once a plaintiff has sought relief from the Correction Board, such plaintiff is bound by that board's determination unless he can meet the difficult standard of proof that the Correction Board's decision was illegal because it was arbitrary, or capricious...."). We are persuaded by the reasoning in Neal v. Secretary of Navy, 639 F.2d at 1037 (applying this standard in review of decisions of Enlisted Performance Board and Board for Correction of Naval Records); see also Ballenger v. Marsh, 708 F.2d 349, 350 (8th Cir.1983) ("Board decisions denying 'corrective' action are reviewable by federal courts") (citing cases).

As stated by another court (Cooper v. United States, 203 Ct. Cl. 300, 304-05 (1973), and quoted with approval, Grieg v. U. S., 640 F.2d 1261, 1268 (Ct. Cl. 1981)):

[This court cannot overturn the] decisions of the Army Board for the Correction of Military Records unless they are found to be arbitrary, capricious, and not based upon substantial evidence, or are contrary to applicable laws and regulations. Dorl v. United States, 200 Ct. Cl. 626, cert. denied, 414 U.S. 1032 (94 S.Ct. 461, 38 L.Ed. 2d 323) (1973). This showing requires cogent and clearly convincing evidence. Newman v. United States, 185 Ct. Cl. 269, 276 (1968); Stephens v. United States, 174 Ct. Cl. 365, 372, 358 F.2d 951, 954 (1966). There is a strong presumption that the board and the Secretary faithfully discharged their duties and the burden is upon plaintiff to prove otherwise. Callan v. United States, 196 Ct. Cl. 392, 450 F.2d 1121 (1971); Biddle v. United States, 186 Ct. Cl. 87 (1968).

"[J]udicial review of a military corrections board decision 'does not require a reweighing of the evidence, but rather a simple determination that a reasonable mind could support the challenged conclusion.'" Browder v. United States, 79 Fed. Cl. 178, 181 (2007), quoting Donahue v. United States, 33 Fed.Cl. 507, 510 (1995).

III. ANALYSIS

A. Purple Heart

At hearing, plaintiff was able to describe some of the circumstances surrounding his injury for which he seeks the Purple Heart. In no uncertain terms, the battle was horrible with much physical devastation. The doctor in the field was so busy with casualties and wounded, there is little doubt that he had no time to create medical records of the wounded. Plaintiff's recollection is that when he was hit with shrapnel, he lifted his shirt for the doctor who told him, "there's nothing wrong with you." Certainly, plaintiff may have been injured; however, in relative terms, the doctor may have had his hands literally filled with more serious life and death injuries. Nevertheless, the court finds that the ABCMR's decision not to award the Purple Heart was not arbitrary, capricious or contrary to law.

The Board describes the following requirements for receiving a Purple Heart: Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire...[;] the wound or injury must have required treatment by medical officials; and the records of medical treatment must have been made a matter of official Army records.

Army Reg. 600-8-22 ¶ 2-8k(3); (Def.'s App. 3.)

The evidence presented by plaintiff to the ABCMR consisted of x-rays and a diagnostic imaging report ("DIR"), dated June, 2003, which revealed a metallic foreign body in his chest wall. (AR 40.) In his request for reconsideration, plaintiff submitted the same DIR, with a typed addendum by Dr. Hofer, stating, "The 5 mm metallic fragment within soft tissue of the right lateral chest wall on further review is consistent with shrapnel presumably related to old wound." (AR 26.) Plaintiff also submitted a letter stating that he sustained combat injuries in the form of a mortar round which exploded behind him, during the Korean War in September, 1950. He states that a medic crawled over to him, gave him "a shot, and made out a tag." (AR 35.) Other documents were not directly pertinent to plaintiff's claim; however, he did submit a Morning Report, dated September 22, 1950, indicating plaintiff's duty status changed from "duty" to "absent, sick in hospital."*fn10 On reconsideration, the ABCMR rejected this evidence. AR 2-5. It noted that the newly submitted article did not reference plaintiff's claims of injury by shrapnel. The morning report, although describing plaintiff as in hospital, did not note that he was in hospital due to a wound sustained in combat. The DIR with its newly added addendum did not state that the metal consistent with shrapnel was due to an enemy mortar round in the Korean War (although a doctor's report years after the fact would be hard pressed to have such specific knowledge).

With his opposition, plaintiff presents evidence which defendant asserts was never provided to the ABCMR. Included is a Morning Report, dated September 16, 1950, which includes plaintiff's name but does not include his status or any personnel change. (Pl.'s Oppo. at 4.) Plaintiff has also submitted what is apparently a copy of his 1951 court martial conviction, in which plaintiff's testimony of being wounded in "the latter part of August 1950 or 1 September 1950" is referenced. (Id. at 8.) Plaintiff has also attached two news articles which recount the Battle of Unsan in November, 1950, and concludes that the 8th Cavalry lost more than 600 soldiers during this battle. (Id. at 9, 10.) Plaintiff argues that this article pertains to his regiment and its destruction.

The problem inherent in this case is the lack of record retention. The article in the Administrative Record entitled, "South to the Naktong, North to the Yalu," written by an Army combat historian sent to Korea during that war to prepare the Army's history of the war, (AR 13), describes the record keeping situation:

Official records are indispensable for fixing dates and time of major events and troop movements. But anyone familiar with the way the records of combat units during battle are made up will know that they seldom tell the essential facts of what happened, and how, and why. They are often the products of indifferent clerks transcribing, [] places remote from the scene of action, a minimum of messages for something-anything-that will satisfy the official requirement for a report. Those who know the most about an action or an event seldom take the time to tell, or write about it. They are too tired, or too nearly dead, or they are dead.

In the early months of the Korean War there was little time for the military organizations committed there to keep adequate records of what they did, even had there been the desire to do so. (AR 15.) (emphasis added.) This description would be particularly true of plaintiff's injury as it allegedly occurred in August or September of 1950, some two to three months after the war began in June, 1950. (AR 13.) The second problem with record unavailability in this case is the previously referenced fire in 1973 which destroyed Army records of about 18 million service members, including plaintiff. These events and corresponding lack of evidence cannot be attributed to plaintiff, and the evidence available will be considered with this background in mind.

Turning to the first element required for a Purple Heart, the evidence before the ABCMR was that the metal fragment in plaintiff's chest wall is consistent with shrapnel, according to a doctor who reviewed plaintiff's DIR in 2003. Defendant reasonably argues that the doctor's conclusion that it was presumably from enemy fire is speculative, in light of the passage of over fifty years. Defendant further points to DD Form 214, which contains an entry of "none" for "wounds received as a result of action with enemy." (AR 30, 36.) This form was issued after plaintiff's discharge from the Army in 1953, and plaintiff never sought to correct this entry. Def.'s Mot. at 4. Plaintiff's complaint is not verified, and his opposition contains no declarations. Although plaintiff has submitted evidence of his testimony at his 1951 court martial, defendant claims that this evidence was not presented to the ABCMR and should not be considered. Nevertheless, the cover page of this report is a letter to plaintiff from the Department of the Army, dated September 24, 2008, containing the certified copy of his court martial conviction. (Pl.'s Oppo. at 8.) Even if defendant did not receive this evidence from plaintiff during the earlier review, defendant had access to its own records, of which this was one. Defendant concedes that the ABCMR "scoured plaintiff's records," and having done so, it would have come across this court martial conviction in which plaintiff testified.*fn11

Furthermore, new evidence is permitted if it was unavailable below. Krzeminski v. United States, 13 Cl. Ct. 430, 437 (1987) quoting Long v. United States, 12 Cl.Ct. 174, 176, 177 n. 2 (1987). Based on the Army's access to the court martial record relating to plaintiff, and its previous unavailability to plaintiff, the record of plaintiff's court martial is accepted. Plaintiff's testimony from 1951 is that he was wounded in August or September, 1950. Because plaintiff was stationed in Korea during the time he was wounded, it can be inferred that the metal in his chest is shrapnel from the Korean War. Even if the court martial conviction is not considered because it was outside the administrative record, the remainder of the evidence leads to the same conclusion in regard to this factor.

The second factor, that the wound or injury must have required treatment by medical officials, is more difficult for plaintiff to establish. The ABCMR record indicates two hospital visits around the time period in question; however, both admissions were for other reasons. On March 14, 1951, plaintiff was admitted for an infection. On June 9, 1951, plaintiff was admitted for a "contusion to his buttocks, hip, and leg." (AR 30.) At hearing, plaintiff referred to another hospital visit on September 22, 1950, due to being hit by a bunker, wherein logs and dirt fell on his legs, almost breaking them. The Morning Report submitted and referenced supra, apparently relates to this incident, which occurred about three to four weeks after his alleged injury by enemy fire. Plaintiff could not point to any other hospital admission for his chest wound; however, he did explain the circumstances surrounding his chest injury. His regiment was in a heated battle in which soldiers all around him were getting killed by the enemy. He lifted his shirt to show the doctor his wound, and the doctor responded by saying there was nothing wrong with him. Plaintiff argues that he had to concentrate on staying alive during this battle instead of getting needed medical attention. He states that he did all he could in this regard, and that it is not his fault that the Army did not treat his wound or record it.

Whether or not plaintiff was refused treatment, as he now contends, is not the issue. Assuming that plaintiff was denied treatment, the fact of the matter is that he continued serving actively in the war on the battlefield for some period of time. His active service without receiving any medical treatment for his wound works against him as it establishes that his wound was not significant enough to require treatment. He also did not suffer complications of this wound as he concedes that he did not file a claim until he was made aware of his 2003 diagnostic imaging results which indicated the metal fragment in his chest wall.

Plaintiff's failure of proof for the second factor almost certainly results in a failure of the third factor, that the records of medical treatment must have been made a matter of official Army records. None of the evidence submitted indicates that plaintiff received medical treatment that was documented in official military records during the time period in question.

Based on plaintiff's failure of proof, he cannot show that the Army's decision was arbitrary or capricious, not based on substantial evidence, or contrary to law. Plaintiff has failed to make such a showing by "cogent and clearly convincing evidence." Dorl v. United States, 200 Ct. Cl. 626, cert. denied, 414 U.S. 1032 (94 S.Ct. 461, 38 L.Ed. 2d 323) (1973). The court cannot find that the ABCMR exhibited any clear error of judgment or did not consider the relevant factors. Arizona Cattle Growers' Ass'n v. U.S. Fish and Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001). This court is not permitted to "serve as a super correction board that reweighs the evidence." Schaefer v. Geren, 607 F.Supp.2d 61, 68 (D.D.C. 2009).*fn12

The court is sympathetic to plaintiff's argument that it is not his job to treat and record his wound; however, in relative terms, the wound was not one that required treatment in comparison to other wounds and casualties occurring in the heat of battle.

B. Plaintiff's Other Claims

In his opposition, plaintiff claims that the ABCMR unlawfully denied him an upgraded discharge. (Oppo. at 2.) This claim was not raised in the complaint, and defendant represents that although plaintiff did apply for an upgrade, it was denied, and denied on reconsideration on November 25, 2008, more than three months after plaintiff filed the instant action. Therefore, this claim will not be considered.

Plaintiff also claims that the same board members who denied his request for reconsideration in regard to the Purple Heart also denied his request to change his discharge from undesirable to honorable or medical. He explains that in ruling that plaintiff had not proved he was wounded in combat, the Board "destroyed it[]s chance of giving me a fair and impartial decision with my discharge application." (Oppo. at 2.) The basis for his discharge upgrade application was that the decision to discharge him dishonorably was without due process because the Army did not know of his wound. Plaintiff has presented absolutely no evidence in support of this claim.

Likewise, plaintiff's claim that the use of Army Regulation 600-8-22 against him is discriminatory and violates his contract with the Army and his right to equal protection and justice, is not supported by any evidence.

CONCLUSION

Accordingly, good cause appearing, IT IS HEREBY ORDERED that defendant's motion for summary judgment filed April 6, 2009, is granted and judgment is entered in favor of defendant.


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