Coburn v. McHugh

• Citation: 400 U.S.App.D.C. 443,679 F.3d 924
• Decision Date: 25 May 2012
• Docket Number: No. 10–5350.,10–5350.
• Parties: Trent M. COBURN, Appellant v. John M. McHUGH, Honorable, Secretary of the Army, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

679 F.3d 924

400 U.S.App.D.C. 443

Trent M. COBURN, Appellant

v.John M. McHUGH, Honorable, Secretary of the Army, Appellee.

No. 10–5350.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct. 21, 2011.

Decided May 25, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:09–cv–01266).

Raymond J. Toney argued the cause and filed the briefs for appellant. David P. Sheldon entered an appearance.

Daniel J. Everett, Special Assistant U.S. Attorney, argued the cause for appellee. On the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence and Alan Burch, Assistant U.S. Attorneys. Kelly L. McGovern, Special Assistant U.S. Attorney, entered an appearance.

Before: BROWN and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

EDWARDS, Senior Circuit Judge:

After nearly eighteen years of service in the United States Army, Appellant Trent Coburn was involuntarily separated on October 30, 2002, pursuant to the Army Qualitative Management Program (“QMP”) for an unfavorable Noncommissioned Officer Evaluation Report (“NCOER”) and a record of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (“UCMJ”). Prior to his separation, Coburn had undergone repeated medical evaluations for back problems and pulmonary issues. In an effort to address Coburn's medical issues, the Army had initiated a Medical Evaluation Board (“MEB”), a process used to determine whether a soldier is medically qualified for retention in the service. See Army Reg. 635–40 ¶ 4–10 (2012). On October 30, 2002, Coburn's MEB processing was purportedly terminated. Orders were published on the same day directing Coburn's discharge under the QMP.

Coburn challenged the termination of the MEB process in two actions before the Army Board for Correction of Military Records (“the ABCMR” or “the Board”), which in each case rejected his claims. The first of these actions was filed on December 5, 2002. Coburn asserted that his separation from the service resulted from an improper termination of the MEB process. He requested reinstatement to allow the MEB process to continue. On August 21, 2003, the ABCMR rejected Coburn's claims. The second action was filed on January 5, 2006. In this action, Coburn sought reconsideration of the Board's 2003 decision. He asserted: (1) that the physician who had terminated his MEB did not have the authority to do so; and (2) that no medical justification existed to terminate the MEB. On March 7, 2007, the ABCMR denied Coburn's request for reconsideration. Coburn did not specifically challenge the QMP action in his 2002 and 2006 applications to the ABCMR.

On July 7, 2009, Coburn filed suit in the District Court against the Secretary of the Army (“the Secretary”), invoking the court's jurisdiction under 28 U.S.C. § 1331, and raising claims under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 704, 706 (2006), to challenge the Board's August 21, 2003 and March 7, 2007 decisions. The District Court granted the Secretary's motion to dismiss or, in the alternative, for summary judgment, and denied Appellant's cross-motion for summary judgment. Coburn v. McHugh, 744 F.Supp.2d 177 (D.D.C.2010).

On appeal, Appellant first contends that the District Court erred in dismissing his claim challenging his separation under the QMP for failure to “meet Army standards.” Army Reg. 635–200 ¶ 19–2(a) (2011). Coburn argues that because an Administrative Separation Board (“ASB”) found that a preponderance of the evidence did not support the allegation that he had wrongfully used marijuana—which was the ground upon which the Article 15 action was based—his separation under the QMP was unlawful. The District Court found, see Coburn, 744 F.Supp.2d at 182–83, and we agree, that because Coburn did not specifically challenge the QMP action in his 2002 or 2006 applications to the ABCMR, the matter is not properly subject to judicial review.

Appellant's second contention on appeal pertains to the termination of his MEB process. Appellant asserts that the ABCMR and the District Court erred in finding that the doctors who terminated his MEB process had the authority to do so, and that the medical evidence in the record supported the decision to terminate. Relatedly, Appellant contends that, under established Army procedures, his QMP separation should have been stayed pending completion of his MEB processing. The Secretary does not dispute this last point, but argues that the physicians who handled Appellant's case made a well-founded decision not to refer Coburn to a MEB, so there was no improper termination of any MEB process. The parties thus disagree over whether Coburn was referred to a MEB. The record clearly indicates that the MEB process had been “initiated,” but the Secretary contends that initiation is not the same as a referral to a MEB. The ABCMR decisions do not address whether Coburn's case was referred to a MEB, and, if so, how Appellant's physicians (who were not members of a MEB) could terminate a case that had been submitted to the MEB process. And the ABCMR decisions fail to explain how the medical information in the record justified the termination of Coburn's MEB process when no final decision had been issued by a MEB. Because the ABCMR's decisions are largely incomprehensible on these points, they are unworthy of any deference. Accordingly, we reverse the decision of the District Court on the MEB issue and instruct the trial court to remand the case to the ABCMR for further proceedings consistent with this opinion.

I. Background

A. The QMP Separation

On March 24, 2000, after urinalysis showed that Appellant tested positive for marijuana, he was found guilty of wrongful use of marijuana pursuant to the nonjudicial punishment proceedings of Article 15 of the UCMJ. On October 25 and 26 of that year, Coburn appeared before an ASB that was convened to determine whether to separate Appellant from the service for the “commission of a serious offense” in violation of Army Regulation 635–200, Chapter 14, Section III, Paragraph 14–12c. Mem. for Major Willie Chandler (Sept. 1, 2000), reprinted in J.A. 130. The ASB found that the allegation that Coburn had “wrongfully used marijuana ... [was] not ... supported by a preponderance of the evidence” and recommended that he “be retained in the service.” Findings and Recommendations, Administrative Board, J.A. 131. However, the ASB did not mention the Article 15 action. Coburn then pursued various avenues of appeal in an effort to have the Article 15 action expunged from his record or moved to a restricted fiche data file; but his petitions for relief were rejected at every turn.

On August 25, 2000, Coburn received an unfavorable NCOER for the rating period of August 1999 to July 2000. See NCO Evaluation Report, Aug. 25, 2000, J.A. 223–24. The evaluation stated that Coburn needed much improvement in leadership; noted that he had failed a urinalysis test; indicated that he “uses poor judgment” and that his “leadership [was] marred by actions unbecoming a noncommissioned officer”; and concluded that his “[o]verall potential for promotion and/or service in positions of greater responsibility” was only “fair.” Id., J.A. 224.

On April 20, 2001, pursuant to the QMP, Coburn was selected for separation from service and barred from reenlistment by a Master Sergeant Promotion Board. The Promotion Board considered Coburn's record of service, including performance and future potential for retention in the Army. The grounds for Coburn's separation were (1) his poor NCOER for the rating period of August 1999 through July 2000 and (2) the Article 15 action. See Mem. for Sergeant First Class Trent M. Coburn (Apr. 20, 2001), J.A. 142.

Coburn subsequently submitted several applications to the ABCMR, to which a soldier may appeal when he believes his record contains an error or injustice. See10 U.S.C. § 1552(a)(1) (2006); Army Reg. 15–185 ¶ 2–1 0(c) (2006). In the first of these applications, Coburn requested that the ABCMR remove the Article 15 action and the NCOER from his personnel file. He asserted that both negative records “resulted from the erroneous [c]onclusion that [he] wrongfully used marijuana”; he also pointed out that he had been “vindicated” by the ASB. ABCMR Appl., Aug. 24, 2001, J.A. 126.

On March 28, 2002, the ABCMR rejected Coburn's August 21, 2001 application, finding that he presented “no evidence ... that the Article 15 was in error or unjust.” The Board thus declined to expunge the reference to the Article 15 action from Appellant's personnel file or to move the reference to a restricted fiche data file. ABCMR Mem. of Consideration (Mar. 28, 2002) (“2002 Decision”) at 7, J.A. 122. The Board also found that there was “no basis to remove or amend the contested NCOER.” Id.

B. The MEB Process

In March 2002, because of his recurring medical problems, Dr. Mario Caycedo “initiated [a] MEB for Mr. Coburn.” Caycedo Decl. ¶¶ 2, 2(c), Sept. 3, 2009, J.A. 172–73. The Army thereafter determined that Coburn “did not meet medical retention standards in accordance with Army regulations.” Letter from Brian J. Storm, First Lieutenant, U.S. Army, to Hon. Chet Edwards, Representative in Congress (July 17, 2002) (“Storm Letter”), J.A. 112. Coburn was thus “eligible for processing through the Physical Disability System. On July 2, 2002, he was referred to process through the MEB by the Brigade Surgeon.” Id. The MEB process is used to determine whether a soldier is medically qualified for retention in the Army. See Army Reg. 635–40 ¶ 4–10. Because the MEB process generally takes precedence over administrative separation procedures, Coburn could not be separated pursuant to the QMP so long as the MEB process was ongoing. See Army Reg. 635–200 ¶ 1–33.

On October 30, 2002, Dr. Caycedo discussed Coburn's case with Colonel Wayne Schirner, also an Army physician. Caycedo Decl. ¶ 2(i), ( l ), (m), J.A. 174–75. Although...