Summary
The Federal Circuit held that both the Kurta Memo and 10 U.S.C. § 1552(h) require military correction boards to apply "liberal consideration" to a veteran's request to change the narrative reason for discharge from a personality disorder to PTSD-related disability, even when the discharge characterization was honorable. The court rejected the government's argument that liberal consideration is limited to characterization upgrades, finding that the statute and memo explicitly cover changes to the narrative reason and separation code. The court also held that § 1552(h) applies retroactively to applications pending at the time of its enactment, as it does not impair rights or impose new duties. The case was remanded for the BCNR to review Doyon's application under the liberal consideration standard.
Topics
Practice areas
Questions Presented
- Whether the BCNR was required to apply a 'liberal consideration' standard to Mr. Doyon's application pursuant to the Kurta Memo.
- Whether the BCNR was required to apply a 'liberal consideration' standard to Mr. Doyon's application pursuant to 10 U.S.C. § 1552(h).
Holdings
- The Kurta Memo requires the BCNR to give liberal consideration to applications seeking discharge relief that challenge the narrative reason for a military discharge, not just characterization upgrades.
- Section 1552(h) applies to Mr. Doyon's application because it is a claim for review of a discharge based on PTSD, and the statute requires liberal consideration for such claims.
Key quotations
“the Kurta Memo is not limited to characterization upgrades but 'requires that the BCNR give 'liberal consideration' to applications seeking discharge relief that challenge the narrative reason for a military discharge.'” (at 13)
“the narrative reason for discharge is a distinct, recognized basis for correction, separate and apart from upgrading or modifying a service member's characterization of service, and is entitled to liberal consideration.” (at 14)
“Had Congress intended to limit liberal consideration only to upgrading or modifying a service member's characterization of service, the statute would not include the alternative 'circumstances resulting in the discharge' clause as an additional, separate ground for liberal consideration.” (at 21)
Factual background
Robert Doyon served in the Navy from 1966 to 1968, during which he witnessed traumatic events including the USS Forrestal fire and a fatal plane crash. He was diagnosed with a personality disorder and discharged for unsuitability. Years later, the VA diagnosed him with PTSD and granted disability compensation. Doyon petitioned the BCNR to correct his discharge narrative reason to reflect PTSD-related disability rather than personality disorder, seeking eligibility for military disability retirement.
Procedural history
Mr. Doyon petitioned the Board for the Correction of Naval Records (BCNR) to correct his military service records to state that he was discharged for service-connected PTSD rather than a personality disorder. The BCNR denied his petition. Mr. Doyon then brought suit in the Court of Federal Claims, seeking disability retirement payment for service-connected PTSD. The government moved for judgment on the administrative record, which the Claims Court granted. Mr. Doyon appealed to the Federal Circuit.
Remand instructions
The case is remanded to the Claims Court to instruct the BCNR to consider whether the record evidence indicates, under the 'liberal consideration' standard, that PTSD-related psychoses or psychoneuroses contributed to the circumstances resulting in Mr. Doyon's discharge and warrant a change in the narrative reason for his discharge.