Trent Coburn v. Pete Geren
OPINION filed  (Pages: 20) for the Court by Judge Edwards [10-5350]
USCA Case #10-5350
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 2011
Decided May 25, 2012
TRENT M. COBURN,
JOHN M. MCHUGH, HONORABLE, SECRETARY OF THE ARMY,
Appeal from the United States District Court
for the District of Columbia
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
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(“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
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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
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
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(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.
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
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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. See 10 U.S.C. § 1552(a)(1)
(2006); Army Reg. 15-185 ¶ 2-10(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
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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 solider 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 both
doctors had familiarity with Coburn’s case, neither was on a
MEB assigned to determine whether Coburn was medically
qualified for retention. Nonetheless, after reviewing Coburn’s
medical record, Dr. Schirner and Dr. Caycedo “agreed . . . to
terminate Mr. Coburn’s MEB.” Id. ¶ 2(m), J.A. 175. Dr.
Caycedo then wrote a letter to Coburn’s Physical Evaluation
Board Liaison Officer, instructing that “MEB action on SFC
Coburn” should be “terminate[d],” because Coburn’s “medical
issues are stable and maybe [sic] followed by the VA [Veterans
Affairs] system once the soldier leaves the military.” Letter
from Dr. Mario Caycedo to Mr. Hurst (Oct. 30, 2002)
(“Caycedo Letter”), J.A. 109. Coburn was involuntarily
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separated from the service on the same day.
On December 5, 2002, Coburn filed an application with the
ABCMR, asserting that he was discharged due to the improper
termination of the MEB and requesting reinstatement to allow
the MEB process to continue. ABCMR Appl., Dec. 5, 2002,
J.A. 104. The Board rejected Appellant’s application,
explaining in part:
The applicant has not provided any good reason to reinstate
him on active duty in order to complete physical disability
processing. The scant medical information available does
not indicate that the applicant was medically unfit for
retention, nor is there evidence that the physical disability
processing was unjustly terminated. Competent medical
authority determined that his medical condition was such
that he could be discharged. He has provided no medical
evidence to indicate otherwise.
ABCMR Mem. of Consideration (Aug. 21, 2003) (“2003
Decision”) at 6, J.A. 82. In his December 5, 2002 application to
the ABCMR, Appellant referenced the Article 15 action; but he
did not seek to challenge this action and the Board did not rule
On January 5, 2006, Coburn applied to the ABCMR for
reconsideration. He claimed: (1) that “[t]he doctor who
terminated the MEB had no authority to do so,” and (2) that
“[t]here was no medical justification to terminate the MEB.”
Req. for Recons., Jan. 5, 2006, J.A. 66. Coburn requested the
Board to “rescind the discharge orders and correct his records by
granting him medical retirement based on the current rating
from the Department of Veteran’s Affairs of 50% disability”; or,
in the alternative, to “correct his records to reflect 20 years of
service, entitling him to a length of service discharge”; or, “[i]n
the further alternative,” to “correct his records by returning the
processing of his case to the MEB stage, allowing the medical
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processing to take its course.” Id., J.A. 64.
Appellant’s January 5, 2006 application for reconsideration
referenced his NCOER and the Article 15 action. But as with
his December 5, 2002 application to the Board, Appellant did
not explicitly challenge these actions. On March 7, 2007, the
ABCMR rejected Appellant’s application for reconsideration.
See ABCMR R. of Proceedings (Mar. 7, 2007) (“2007
Decision”) at 4, J.A. 59. The Board found that the “overall
merits of the case . . . are insufficient as a basis for the Board to
reverse its previous decision.” Id. at 3, J.A. 58.
Coburn filed suit in District Court against the Secretary on
July 7, 2009, seeking review under the APA of the ABCMR’s
2003 Decision and its 2007 Decision. Coburn, 744 F. Supp. 2d
at 181. He sought a “declaratory judgment that the Army
unlawfully separated him for marijuana use, that the Army
unlawfully terminated his disability evaluation, that Army
regulations prohibited his separation, and that the ABCMR’s
decision-making process did not comply with statutory authority
or Army regulations.” Id.
The Secretary filed a motion to dismiss or, in the
alternative, for summary judgment; Coburn filed a cross-motion
for summary judgment. Id. at 179. The District Court granted
judgment in favor of the Secretary. Id. Coburn appeals, arguing
that the “District Court improperly dismissed [his] claim that his
separation for alleged marijuana use under the Army [QMP] was
unlawful,” and that the “District Court and the ABCMR erred in
ruling that the Army’s termination of [his] physical disability
evaluation processing was lawful.” Appellant’s Br. at 2.
A. Standard of Review
There are several venerable legal principles that control our
review and disposition of this appeal. First, “[o]n review of a
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district court’s grant of summary judgment in connection with
the appeal of a decision of the ABCMR, ‘we review the
ABCMR’s decision de novo, applying the same standards as the
district court.’” Fontana v. White, 334 F.3d 80, 81 (D.C. Cir.
2003) (citation omitted). The same is true for a motion to
dismiss. See Miller v. Hersman, 594 F.3d 8, 10 (D.C. Cir. 2010)
(“We review de novo both a summary judgment and a dismissal
for failure to state a claim.” (citations omitted)). Relatedly, “[i]n
a case like the instant one, in which the District Court reviewed
an agency action under the APA, we review the administrative
action directly, according no particular deference to the
judgment of the District Court.” Holland v. Nat’l Mining Ass’n,
309 F.3d 808, 814 (D.C. Cir. 2002) (citations omitted). In other
words, we “do not defer to a district court’s review of an agency
[action] any more than the Supreme Court defers to a court of
appeals’ review of such a decision.” Novicki v. Cook, 946 F.2d
938, 941 (D.C. Cir. 1991) (citation omitted).
Second, “[s]imple fairness to those who are engaged in the
tasks of administration, and to litigants, requires as a general
rule that courts should not topple over administrative decisions
unless the administrative body not only has erred but has erred
against objection made at the time appropriate under its
practice.” United States v. L.A. Tucker Truck Lines, Inc., 344
U.S. 33, 37 (1952). Therefore, we are bound to adhere to the
“hard and fast rule of administrative law, rooted in simple
fairness, that issues not raised before an agency are waived and
will not be considered by a court on review.” Nuclear Energy
Inst. v. EPA, 373 F.3d 1251, 1297 (D.C. Cir. 2004) (per curiam)
Third, it is generally understood that “decisions regarding
the correction of military records are reviewable under the
‘arbitrary and capricious’ standard of APA § 706.” Kreis v.
Sec’y of the Air Force, 866 F.2d 1508, 1513 (D.C. Cir. 1989)
(citing Chappell v. Wallace, 462 U.S. 296, 303 (1983)); see also
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Dickson v. Sec’y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995)
(applying 5 U.S.C. § 706 specifically to decisions of the
ABCMR). Typically, we are guided by the “strong but
rebuttable presumption that administrators of the military, like
other public officers, discharge their duties correctly, lawfully,
and in good faith.” Frizelle v. Slater, 111 F.3d 172, 177 (D.C.
Cir. 1997) (citations omitted) (internal quotation marks omitted).
However, an agency decision is owed no deference if it fails to
“give a reason that a court can measure . . . against the ‘arbitrary
or capricious’ standard of the APA.” Kreis, 866 F.2d at
1514–15; see also Tripoli Rocketry Ass’n, Inc. v. Bureau of
Alcohol, Tobacco, Firearms, and Explosives, 437 F.3d 75, 77
(D.C. Cir. 2006) (explaining that “no deference” is owed to an
agency’s “purported expertise” where its explanation “lacks any
B. Appellant’s QMP Claims
Coburn’s first argument on appeal is that the District Court
erred when it declined to address and dismissed his claim that
his separation under the Qualitative Management Program was
unlawful. The District Court refused to consider this claim after
finding that Appellant did not expressly raise it in the
administrative proceedings under review here. Appellant
challenges this finding, arguing that “he did expressly raise [the
QMP claim] in a 2001 application and the ABCMR expressly
incorporated the record of that decision into Mr. Coburn’s
subsequent ABCMR applications. The ABCMR itself thus
preserved the issue.” Appellant’s Br. at 14. Appellant’s
argument is belied by the record.
Coburn filed applications with the ABCMR in 2001, 2002,
and 2006, all of which were denied, in 2002, 2003, and 2007,
respectively. His 2001 application was the only one in which
Appellant challenged the QMP. And Appellant did not seek
judicial review of the Board’s 2002 decision rejecting his 2001
application. His current appeal to this court regards only the
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Board’s 2003 Decision and its 2007 Decision, and those
decisions did not address issues relating to the QMP because
Appellant did not raise the issues in his 2002 and 2006
applications to the Board. We agree with the District Court that
Coburn’s 2002 and 2006 applications “focused on what Coburn
described as the improper termination of his MEB.” Coburn,
744 F. Supp. 2d at 182 (citation omitted). Therefore, the District
Court did not err in dismissing Appellant’s QMP claim. The
“well-established doctrine of issue waiver . . . permits courts to
decline to hear arguments not raised before the agency where the
party had notice of the issue.” CSX Transp., Inc. v. Surface
Transp. Bd., 584 F.3d 1076, 1079 (D.C. Cir. 2009) (citations
Appellant admits that the application giving rise to the
ABCMR’s 2003 decision “did not specifically address the issue
of the Article 15 and his alleged marijuana use.” Appellant’s
Br. at 28. The ABCMR’s denial in response to that application,
in turn, is based wholly on its findings regarding the MEB. See
2003 Decision at 6, J.A. 82. It is not surprising, then, that
Appellant’s subsequent 2006 application for reconsideration
focused on the very same issue that was the subject of the prior
application and denial: the MEB termination. See Req. for
Recons., Jan. 5, 2006, J.A. 66. While the application discusses
the QMP separation as background, it does not assert that the
QMP action was unlawful in its “Discussion,” see id., J.A.
67–72, posit issues related to the QMP separation as a basis for
error, see id., J.A. 66, or request that Coburn’s record be
amended with regard to these issues, see id., J.A. 64. And the
Board’s 2007 Decision focuses only on Appellant’s MEB claim.
Appellant claims that because the QMP issue was raised in
his 2001 application to the Board, and the Board expressly
incorporated the record of its 2002 Decision into its
consideration of Coburn’s 2002 and 2006 applications, the
Board “thus preserved the [QMP] issue.” Appellant’s Br. at 14.
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This is a specious argument. The 2001 application and the
Board’s 2002 Decision – both of which did address the Article
15 action and the NCOER – do not form the basis of this appeal.
See Coburn, 744 F. Supp. 2d at 181. Indeed, even Coburn
characterizes his claims as having “accrued . . . August . . . 2003,
and March 7, 2007, when the ABCMR issued final decisions on
his applications.” Compl. ¶ 14, J.A. 26. Furthermore, it is
obvious that an agency’s mere “incorporation” of a prior case
record in a pending dispute, without more, does not indicate that
the agency intends to revisit the issues previously resolved in the
prior case. Indeed, decisional references to records from prior,
resolved cases may help to define and limit the scope of the
issues in pending cases.
It is well understood that “[a] reviewing court usurps [an]
agency’s function [if] it sets aside [an] administrative
determination upon a ground not theretofore presented and
deprives the [agency] of an opportunity to consider the matter,
make its ruling, and state the reasons for its action.”
Unemployment Comp. Comm’n of Alaska v. Aragon, 329 U.S.
143, 155 (1946). We therefore decline to review Appellant’s
QMP claim because it was not raised with the ABCMR in the
administrative actions that are the subject of this appeal.
C. Coburn’s MEB Claims
Army Regulation 635-40 “establishes the Army Physical
Disability Evaluation System.” Army Reg. 635-40 ¶ 1-1. The
regulation sets forth a specific process governing how the Army
determines a soldier’s medical qualification for continued
service. First, “[t]he MTF [Medical Treatment Facility]
commander having primary medical care responsibility will
conduct an examination of a Soldier referred for evaluation.” Id.
¶ 4-9. Second, “[i]f it appears the Soldier is not medically
qualified to perform duty, the MTF commander will refer the
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Soldier to a MEB,” id., a group “composed of two or more
physician members,” Army Reg. 40-400 ¶ 7-3 (2011). Third, if
a soldier is referred to a MEB, a MEB is then “convened to
document a Soldier’s medical status and duty limitations insofar
as duty is affected by the Soldier’s status,” and “[a] decision is
made as to the Soldier’s medical qualification for retention.”
Army Reg. 635-40 ¶ 4-10; see also Army Reg. 40-400 ¶ 7-1.
Under the applicable regulatory process, a MEB referral
follows a medical examination; in other words, medical
examination and referral to a MEB appear to be distinct steps.
It also appears that the doctor who completes the medical
examination to determine whether to refer a case to a MEB is
not one of the doctors who serves as a member of the MEB.
Once a MEB has been initiated, the MEB process generally
takes precedence over separation under the QMP: “Except in
separate actions under Chapter 10 [Discharge in Lieu of Trial by
Court-Martial] and as provided in para 1-33b, disposition
through medical channels takes precedence over administrative
separation processing.” Army Reg. 635-200 ¶ 1-33(a). When
the MTF commander or attending medical officer
determines that a Soldier being processed for administrative
separation under chapters 7 [Defective Enlistments/Reenlistments and Extensions] (see sec IV) [Fraudulent
Entry], or 14 [Separation for Misconduct], does not meet
the medical fitness standards for retention . . . , he/she will
refer the Soldier to a Medical Evaluation Board (MEB) . . . .
The administrative separation proceedings will continue,
but final action by the separation authority will not be
taken, pending the results of MEB.
Id. ¶ 1-33(b). The QMP is governed by Chapter 19 of the same
regulation. See id. ¶ 19-1. The parties here do not disagree that
Coburn could not have been separated pursuant to the QMP if he
was involved with a MEB in a matter that was still pending
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The Secretary contends that while Dr. Caycedo “initiated”
the MEB, Appellee’s Br. at 19, “Coburn was never actually
referred to the Medical Evaluation Board itself,” id. at 58. And
during oral argument before this court, counsel for the Secretary
argued that while there was “no question that the evidence in the
record says ‘MEB initiated,’” this was simply “loose language
to mean the medical disability processing started, not the MEB
was referred.” Oral Argument at 30:59, 31:30. Under the
Secretary’s theory of the case, “[t]here is no evidence in this
record that the Medical Treatment Facility Commander ever
referred anything to a Medical Evaluation Board.” Id. at 25:48.
Instead, the Secretary contends that it was the “medical
examination that precedes the MEB referral process” that was
terminated here, not the MEB itself. Id. at 25:01.
Coburn, in contrast, claims both that a MEB was “initiated”
and that he was “referred” to a MEB. Appellant’s Br. at 10, 17.
Coburn also appears to equate MEB “initiation” with a
“referr[al]” to the “Army Physical Disability Evaluation
System.” Id. at 9 (citation omitted). As indicated by the facts
recounted in the Background section of this opinion, Appellant
makes a compelling case in suggesting that he was referred to a
In any event, it is clear that the parties disagree over
whether Dr. Caycedo terminated Coburn’s medical processing
before or after he was referred to a MEB. The resolution of this
issue influences the analysis of Appellant’s claim that his MEB
processing was improperly terminated.
The parties agree that the MEB was “initiated.” And, as
noted above, the record clearly supports this conclusion and, in
some instances, suggests Coburn was “referred” to a MEB. The
relevant evidence, some of which is outlined in the Background
section of the opinion, is fairly extensive. First, the record
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indicates that Dr. Caycedo requested that “MEB action on SFC
Coburn” be “terminate[d],” clearly implying that Coburn’s case
had come to involve the MEB process in some form. Caycedo
Letter, J.A. 109.
Second, the record also contains an “Individual Sick Slip”
from Dr. Caycedo, dated June 3, 2002, on which is written
“MEB initiated.” Individual Sick Slip, June 3, 2002, J.A. 244.
Third, two official responses to Coburn’s allegations that
the Army was attempting to separate him while his MEB
continued also demonstrate that a MEB had at least been
initiated. In July 2002, the Army wrote to a member of
Congress, apparently to respond to Coburn’s prior complaints to
the member that the Army was attempting to unlawfully
separate him. The response explains, “Sergeant Coburn’s
allegation that his unit was trying to separate him from the Army
while he was undergoing a medical evaluation board (MEB)
board [sic] is unsubstantiated.” Storm Letter, J.A. 112. It
further states that it was “determined that Sergeant Coburn did
not meet medical retention standards . . . ; therefore, he was
eligible for processing through the Physical Disability System.
On July 2, 2002, he was referred to process through the
MEB . . . .” Id. (emphasis added). The letter concludes that
Coburn was “being afforded every legal and medical recourse as
he processes through the MEB channels.” Id., J.A. 113.
Similarly, in January 2003, the Office of the Inspector
General responded to Coburn’s allegations that separation orders
were unlawfully issued in light of his ongoing MEB processing.
The response mentions that a physician had “initiated the MEB,”
and explains that it had been determined that Coburn “should be
retained until the medical process is completed” and “was in the
MEB process and the orders should not have been processed for
separation.” Response to Inspector General Action Req. (Jan.
30, 2003), J.A. 88 (citing Army Reg. 635-200 ¶ 1-33(a)).
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Fourth, Coburn’s “Physical Profile,” issued by Dr. Caycedo,
notes “MEB INITIATED.” Physical Profile, June 28, 2002, J.A.
245. It also includes a numerical designator of “3” and states
that his physical profile is “permanent.” Id. That numerical
designator indicates medical or physical issues that “may require
significant limitations,” Army Reg. 40-501 ¶ 7-3(d)(3) (2011),
and a permanent “3” profile requires “review by an MEB
physician or physician approval authority,” id. ¶ 7-4(b).
Further, an active-duty soldier with a “permanent” profile who
does not “meet the medical retention standards must be referred
to an MEB.” Id. ¶ 7-4(b)(1) (emphasis added). As noted,
Coburn was described as “not meet[ing] medical retention
standards,” and thus was “referred” to a MEB. Storm Letter,
Fifth, in July 2002, Dr. Caycedo noted in a Consultation
Sheet that Coburn was “PRESENTLY UNDERGOING MEB”
and needed a “FINAL EVALUATION PRIOR TO
COMPLETION OF MEB.” Consultation Sheet, July 2, 2002,
Finally, the ABCMR apparently assumed that the MEB
process had commenced. In its 2003 Decision, the Board notes
that Coburn was requesting in his application that “he be
reinstated on active duty in order to complete physical disability
processing,” and recognizes that Coburn’s “MEB was abruptly
terminated.” 2003 Decision at 2, 6, J.A. 78, 82.
In sum, while there is no doubt a MEB was initiated, there
is a question as to whether initiation and referral are distinct.
There is also a question as to whether Coburn was in fact
referred to a MEB as he claims.
A MEB is “convened to document a Soldier’s medical
status and duty limitations insofar as duty is affected by the
Soldier’s status”; and it appears that the MEB, alone, is charged
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with the duty of making a decision “as to the Soldier’s medical
qualification for retention” once a case is submitted to it. Army
Reg. 635-40 ¶ 4-10. And, as noted above, the applicable
regulations indicate that the actions of examination and potential
referral to a MEB, see id. ¶ 4-9, are separate from a MEB
evaluation and decision, see id. ¶ 4-10. In other words, the
medical examination performed by an attending physician,
which may or may not lead to a referral to the MEB, is distinct
from a MEB evaluation.
The “termination” of Coburn’s MEB as it happened in this
case is unfathomable. First, the initiating physician was Dr.
Caycedo, and the terminating physician was Dr. Caycedo, acting
with the approval of Dr. Schirner. However, there is no
indication in the regulations that the referring physician can also
serve as one of the physician members of the MEB, and neither
party asserts that either Dr. Caycedo or Dr. Schirner served as
one of the physicians on the MEB. Second, we can discern
nothing in the regulations to indicate how these two physicians
(who were not members of a MEB) could terminate Coburn’s
case once it had been submitted to the MEB process. And,
finally, the Secretary’s argument that medical information in the
record justified the termination of Coburn’s MEB process is
perplexing, because no final decision had been issued by a
The Judgment of the ABCMR Fails for Want of Reasoned
Decisionmaking with Respect to the MEB Issue
The findings of the ABCMR afford little help in
understanding the MEB issue. Indeed, the Board’s decisions
lack coherence and, thus, make it impossible for this court to
determine whether the judgments of the Board survive arbitrary
and capricious review under the APA. Therefore, the ABCMR
decisions fail the test of “reasoned decisionmaking.” See Motor
Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 52 (1983).
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The ABCMR upheld Coburn’s separation, because “[t]he
scant medical information available does not indicate that the
applicant was medically unfit for retention,” and because
“[c]ompetent medical authority determined that his medical
condition was such that he could be discharged.” 2003 Decision
at 6, J.A. 82. The ABCMR never explains, however, how the
“medical information” before it justified Coburn’s termination.
Nor does it explain how Dr. Caycedo or Dr. Schirner, who were
not members of a MEB, could “terminate” a case that Dr.
Caycedo had seemingly referred to a MEB, when no final
decision had been issued by a MEB.
The Board also fails to clarify whether Coburn’s case
actually reached a MEB or instead never left the initial MTF
examination phase. The Board references the Army’s letter to
explain that on “2 July 2002 [Coburn] was referred for
processing through the MEB.” Id. at 3, J.A. 79 (emphasis
added). But it also points to notes dated November 14, 2002
from the Inspector General’s office “indicat[ing] that the
applicant worked the system to the point that he was being
considered for a MEB; however, the MEB did not override his
QMP and he was discharged.” Id. at 5, J.A. 81. Later, the
Board cites the Inspector General’s case summary from January
2003 as explaining that Coburn was “undergoing MEB
processing” and that a MEB had been “initiated.” Id.
These various statements from the ABCMR decision, read
together, are incomprehensible. An agency’s decision need not
be “a model of analytic precision to survive a challenge.”
Dickson, 68 F.3d at 1404. And, certainly, we may “uphold a
decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” State Farm Mut. Auto. Ins. Co., 463
U.S. at 43 (citations omitted) (internal quotation marks omitted).
But we may not “supply a reasoned basis for the agency’s action
that the agency itself has not given.” Id. (citation omitted). At
the very least, the Board must “provide an explanation that will
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enable the court to evaluate the agency’s rationale at the time of
decision.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S.
633, 654 (1990); see also PSEG Energy Res. & Trade LLC v.
FERC, 665 F.3d 203, 208 (D.C. Cir. 2011) (“Among other
things, [a]n agency’s failure to respond meaningfully to
objections raised by a party renders its decision arbitrary and
capricious.” (alteration in original) (citation omitted) (internal
quotation marks omitted)). It failed to do so in this case.
In short, the ABCMR’s decision is “utterly unreviewable”
and simply lacks “reason[s] that a court can measure . . . against
the ‘arbitrary or capricious’ standard of the APA.” Kreis, 866
F.2d at 1514–15. Where, as here, an agency’s “explanation for
its determination . . . lacks any coherence,” we owe “no
deference to [the agency’s] purported expertise.” Tripoli
Rocketry Ass’n, Inc., 437 F.3d at 77.
Instructions on Remand
“Where an agency ‘has failed . . . to explain the path it has
taken, we have no choice but to remand for a reasoned
explanation.’” Dickson, 68 F.3d at 1407 (alteration in original)
(citation omitted). On remand, the ABCMR must reconsider
Coburn’s case and, in so doing, address, at a minimum, the
(1) Is a medical evaluation and referral to a MEB under
Army Regulation 635-40 ¶ 4-9 separate and distinct from an
evaluation and action taken by a MEB under Army Regulation
635-40 ¶ 4-10?
(2) Is it possible for a physician to “initiate a MEB” without
necessarily “referring” a case to a MEB? If so, what supports
this conclusion? To what extent do initiation and referral
overlap with the concept of “physical disability processing”?
(3) Was Coburn’s case referred to a MEB, or did Dr.
Caycedo mean something else when he wrote “MEB initiated”?
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(4) If Coburn’s case was not referred to a MEB, what in the
record and regulations supports this conclusion? If Coburn’s
case was not referred to a MEB, on what authority did Dr.
Caycedo and Dr. Schirner act when they “abruptly terminated”
(5) If Coburn’s case was referred to a MEB, on what
authority did Dr. Caycedo and Dr. Schirner act when they
“abruptly terminated” the MEB? In other words, how could Dr.
Caycedo and Dr. Schirner terminate Coburn’s MEB when they
were not members of the MEB?
The judgment of the District Court is affirmed in part,
vacated in part, and remanded to the District Court with
instructions to remand the case to the ABCMR for further
proceedings consistent with this opinion.
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