Justice Done for a Purple-Heart Vietnam Veteran
Quick Facts
The problem:
Kenneth Haselwander’s medical records did not include his injuries sustained at the hands of an enemy in Vietnam in 1969.
Due to the error in his medical record, Haselwander had never received the Purple Heart medal he was entitled to.
After filing a correction application with the Army Board of Corrections for Medical Records (ABCMR), his claim was denied.
The solution:
With the help of Michael D.J. Eisenberg, Mr. Haselwander mounted a series of appeals against the ABCMR and District Court’s decisions.
“Undisputed and creditable” evidence was acquired and presented with these appeals.
Impressive results:
After persistently fighting the ABCMR’s unjust ruling, Mr. Eisenberg argued the case before the U.S. Court of Appeals for the District of Columbia.
The U.S. Court of Appeals for the District of Columbia remanded the ABCMR and District Court’s decisions, drawing attention to the Army’s initial error in not appropriately recording Mr. Haselwander’s medical treatment.
Kenneth Haselwander was awarded the Purple Heart nearly 40 years after he was honorably discharged from the U.S. Army.
What is the Purple Heart Medal?
The Purple Heart medal is the oldest military medal in U.S. history, dating back as far as the Revolutionary War. It remained in obscurity until 1932, when it began to be awarded again.
Today, the Purple Heart medal has been awarded to more veterans than any other honor. But despite that, the Purple Heart medal isn’t one that members of the Armed Forces seek, since it is awarded for sacrifice, pain, or death suffered in service to our Country.
Who is Eligible for the Purple Heart Medal?
Unlike the Medal of Honor or the Silver Star, the Purple Heart is an entitlement to all service members who qualify; the service member needs no recommendation or particular action to receive the medal. To be eligible, a service member must:
Have been wounded, injured, or killed in hostile action, a terrorist attack, or in friendly fire.
A wound or injury must require medical treatment.
The medical treatment must be officially documented.
It’s this last point concerning an official record of medical treatment that brings us to the case of Kenneth Haselwander.
Haselwander’s Injuries and Story
Kenneth Haselwander joined the Army in March, 1968. He was deployed to Vietnam in January 1969 as a part of the 49th Infantry Scout Dog Platoon of the 199th light infantry brigade. He was sleeping in his tent on June 6, 1969 at Camp Frenzell-Jones near Ho Nai Village in Vietnam, just outside Saigon, when an enemy 122 mm mortar exploded near his sleeping quarters, blew him out of his bunk, and knocked him unconscious.
After regaining consciousness, Haselwander took cover in a bunker, was spotted by two medics, who proceeded to treat him and remove shrapnel from his wounds in a dispensary. His injuries were documented by photograph, showing bandages on his face, chin, and neck and shoulder area.
But before proper paperwork was filed, Haselwander left the dispensary to attend to some of the scout dogs that had been injured in the attack. He then went to Tan Son Nhut Airbase where a scout dog received further veterinary care, before returning to camp Frenzell-Jones a few days later.
Haselwander continued with his service before returning to the U.S. in January of 1970; he was honorably discharged in March, 1974.
Despite his injuries, Kenneth Haselwander was unable to receive the Purple Heart Medal he was entitled to for his sacrifice because the Army failed to properly document them.
Denied Appeal after Denied Appeal
The issue concerning Haselwander’s conspicuously absent medical records came to a head in March of 2007: Haselwander filed an application to the Army BCMR to have his medical records corrected so he would be eligible for the Purple Heart, over 30 years after he was honorably discharged.
While no official documentation of his injuries existed, Haselwander supplied evidence of his injuries by way of references and photos that depicted him with bandages on his face, neck, and shoulder areas, while wearing what are easily identifiable as dispensary-issued scrubs.
The board rejected his application due to a lack of medical records, despite that being the very issue he was applying to have corrected. With Mr. Eisenberg’s assistance Haselwander filed a petition for reconsideration following the rejection. This time he asked the Board not for the “Purple Heart” award; but instead asked that his military medical records be corrected to reflect that he was treated for injuries sustained by the enemy.
The reconsideration request included additional documentation including correspondence from another veteran who was also wounded and treated in the same attack. He also included official documentation, a Daily Staff Journal from June 6, 1966 which mentioned the attacks. The reconsideration package also included reports from his Brigade and Platoon units detailing the events of the day and its attacks.
Unfortunately, the board denied his petition once again in October 2009. In its decision, the ABCMR stated the following:
“The letters of support submitted with [Haselwander] request for reconsideration clearly state that the applicant was wounded in action.”
“The photographs that reportedly show the applicant’s wounds bandaged are insufficient as a basis for award of the Purple Heart. There is no available medical record to corroborate the photographs.”
After this second denial of justice, Haselwander sought review in the District Court. Frustratingly, the District Court also deferred to the Army Secretary’s position and denied Haselwander justice and the honor he deserved a third time.
Justice at Long Last
Finally, Haselwander appealed the District Court’s decision. At the U.S. Court of Appeals for the District of Columbia, after years of denials, injustice, and waiting, some sensibility was introduced. The Court of Appeals recognized the flaws with the ABCMR’s findings, and was dumbfounded by flimsy, circular reasoning supporting them.
The ABCMR’s sole reason for denying Haselwander was that official medical records didn’t exist to corroborate his claim—despite the fact the lack of records was the exact thing he was trying to have corrected.
According to the opinion for the Court filed by the Senior Circuit Judge, Judge Edwards, the ABCMR’s reasoning and decision was “utterly illogical,” “devoid of evidentiary support,” and “arbitrary and capricious.”
In light of this, the D.C. Circuit Court ruled in 2014 to reverse the judgment of the District Court and vacate the decision of the BCMR, seven years after the initial application.
Haselwander eventually went on to receive the Purple Heart.
Why Was Haselwander Denied Repeatedly?
So you may be asking yourself, why did an Army veteran who served in Vietnam have to go through this nightmarish gauntlet of bureaucracy to get the justice and honor owed to him? The reason behind it is tragic and illuminating.
Haselwander was denied repeatedly due to how deferential the standard of review for the BCMR is. This precedent of incredible deference to the BCMR was put in place following the decision of Kreis* v. *Secretary of the Air Force in 1989. Therefore, when Haselwander appealed their decision, there was very little pressure on the Board to correct itself and exact the justice it should have.
Technically, because there were no existing medical records, the ABCMR accurately assessed that Haselwander didn’t meet the necessary eligibility requirements for the Purple Heart. However, they appeared completely unconcerned by the injustice given his absence of records due to the fog of war
Here was a man who had irrefutably proved he was injured and treated in the line of duty, yet no records of his injuries or treatment existed. Why did that oversight itself not concern the Board? In the opinion for the Court of Appeals, Judge Edwards quoted Yee v. United States to this effect: “[W]hen a correction board fails to correct an injustice clearly presented in the record before it, it is acting in violation of its statutory mandate.” Simply put, when a correction board fails to make a necessary and obvious correction, it’s effectively violating the purpose it exists to serve.
Judge Edwards also cited Caddington v. United States, quoting “[T]he Secretary and his Boards have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief.” Finally, the panel of three judges for the Appellate Court concluded that the ABCMR failed to do its duty, and that denying Haselwander’s application was ‘arbitrary and capricious.’
The Impact of Haselwander
Since the 1989 Kreis decision, the deferential standards of review enjoyed by the ABCMR have caused irrevocable damage to service members who have been denied for reasons similar to Haselwander’s case, or service members whose injuries may be less apparent than others. The highly deferential standard provided by Kreis means the military and their respective records correction board have little reason to fear sanctions from the government. Thus, the boards have little to fear when making mistakes or failing to give a veteran deference to the injustice presented to it
Kreis set the standard that only the “most egregious decisions may be prevented under such a deferential standard of review,” a threshold the Haselwander case sadly, yet fortunately, crossed. After a long battle, justice was finally done for a faithful Vietnam Army veteran; but it’s a stark reminder of how many other service members may have previously appealed BCMR decisions to no avail.
Looking forward, Kenneth Haselwander’s case will hopefully provide an example of how the BCMRs should act and come to decisions for honorable service members.
Michael D.J. Eisenberg Will Fight For You Like He Fought For Kenneth Haselwander
When it comes to military records corrections, it’s no easy task. The deferential standard of review of the BCMRs means challenging any ruling is an uphill battle, but if you fought for our country, Michael D.J. Eisenberg will fight for you—just like he did for Kenneth Haselwander.
Michael D.J. Eisenberg will analyze your case, identify the best strategy, gather official records and documents to support your claim, and many other complex, technical tasks necessary for a successful case.
Having your military records corrected matters. It might not be easy or quick, but with the help of Michael D.J. Eisenberg, it can be done. Contact Mr. Eisenberg today to schedule a consultation.
Every case is different; this posting is for educational purposes only and is not intended to offer legal advice. For your specific legal matters, consult with an attorney before taking or not taking action.
Note: Consultations for Military Records Issues and Medical/Physical Evaluation Boards are paid; however, Veterans’ Benefits Appeals Matters are free.