                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-2111


STEVEN E. PORTNER, U.S. Army, Captain (Retired),

                Plaintiff - Appellant,

          v.

JOHN MCHUGH, Secretary of the Army,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:09-cv-00473-LMB-TCB)


Submitted:   August 25, 2010             Decided:   September 22, 2010


Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Elizabeth D. Ferrill, Elizabeth M. Burke, FINNEGAN, HENDERSON,
FARABOW, GARRETT & DUNNER, L.L.P., Washington, D.C., for
Appellant.   Neil H. MacBride, United States Attorney, Deirdre
Brou, Special Assistant United States Attorney, Kevin J.
Mikolashek,   Assistant United  States  Attorney,  Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Steven E. Portner appeals the district court’s order

granting    summary     judgment    in    favor   of   the    Government      on   his

Administrative Procedure Act (“APA”) complaint.                 We affirm.

            Portner, who served in both the Army and Navy as a

member of the special forces, challenged the decision of the

Army Board for Correction of Military Records (“ABCMR”) not to

correct Block 10A on Portner’s DA (Department of the Army) Form

199.      Portner   argued   he     was    entitled    to    such    a    correction

because he was injured during wartime, and his wartime injuries

culminated in a disability that resulted in his retirement from

the Army in 1984.        The ABCMR concluded that Portner’s disability

was based on a 1984 hard landing during a parachute exercise

(rather    than   any    injury    sustained      earlier),    and       because   the

disability was not incurred during a recognized time of war,

denied Portner’s request for a correction.

            Fed. R. Civ. P. 56(c) requires a district court to

enter summary judgment if the pleadings, depositions, answers to

interrogatories and admissions on file together with affidavits,

if any, show that there is 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).               The question to be

resolved in ruling on a motion for summary judgment is “whether

a fair-minded jury could return a verdict for the plaintiff on

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the evidence presented.”           Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986).

            To succeed on his claim under the APA, Portner must

demonstrate by clear and convincing evidence that the ABCMR’s

November 2007 decision was arbitrary, capricious, contrary to

law, or unsupported by substantial evidence.                   Randall v. United

States,     95     F.3d     339,   348    (4th Cir. 1996);          Roetenberg     v.

Secretary     of     the     Air   Force,      73     F.    Supp.    2d   631,    636

(E.D. Va. 1999).           In reviewing a grant of summary judgment on

appeal,    this     court    employs     the   same    standards      used   by   the

district court.       Randall, 95 F.3d at 348.              Thus, the function of

this court is not to reweigh the evidence presented to the ABCMR

but   to   simply    determine     whether      the    ABCMR’s      conclusion    was

supported by substantial evidence.                  See id. (quoting Heisig v.

United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983)).

            On appeal, Portner argues that the ABCMR erred in its

application of Army Regulation (“AR”) 635-40.                    Specifically, he

claims     that    the      regulation    should       be    read    to   allow    an

affirmative response in Block 10A when a soldier’s unfitting

condition was caused by injuries sustained during wartime, even

when those injuries did not render the soldier unfit until a

later date.        The Government urges us to read the regulation in

context, and in doing so, conclude that the relevant inquiry

under the regulation is not when the initial injury leading to

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the    disability    was     first      sustained,          but   rather    when    the

disability itself was incurred.

             According     to    the     regulation,         certain      “advantages”

accrue to soldiers who are retired for physical disability and

later return to work for the Federal Government “when it is

determined that the disability for which retired was incurred

under specific circumstances.”                 AR 635-40, Paragraph 4.19(j).

One   such   specific      circumstance        is     the   requirement      that    the

disability “was incurred in [the line of duty] during a period

of    war   as   defined   by    law.”         Id.    at    Paragraph      4.19(j)(2).

Because it is undisputed that Portner did not have a disability

until 1984, which was not a period of war, he is unfortunately

not entitled to the benefits he seeks.

             Accordingly,       we     find     the     ABCMR’s     conclusion       was

supported by substantial evidence and the district court did not

err in granting the Government’s motion for summary judgment.

We therefore affirm the judgment of the district court.                              We

dispense     with   oral     argument         because       the   facts    and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                              AFFIRMED




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