Case: 21-2095 Document: 63 Page: 1 Filed: 01/25/2023
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT L. DOYON,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-2095
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-01964-LKG, Judge Lydia Kay Griggsby.
______________________
Decided: January 25, 2023
______________________
MICHAEL CLEMENTE, Latham & Watkins LLP, Wash-
ington, DC, argued for plaintiff-appellant. Also repre-
sented by EUGENE R. ELROD, ADAM MICHAEL GREENFIELD;
REMINGTON LAMONS, Costa Mesa, CA; ROCHELLE BOBROFF,
National Veterans Legal Services Program, Arlington, VA.
ELIZABETH ANNE SPECK, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by BRIAN M. BOYNTON, STEVEN JOHN
GILLINGHAM, PATRICIA M. MCCARTHY.
ALEXANDER O. CANIZARES, Perkins Coie, LLP,
Case: 21-2095 Document: 63 Page: 2 Filed: 01/25/2023
2 DOYON v. US
Washington, DC, for amicus curiae Connecticut Veterans
Legal Center. Also represented by JOHN MICHAEL GEISE,
Elias Law Group LLP, Washington, DC.
MAYA M. ECKSTEIN, Hunton Andrews Kurth LLP, Rich-
mond, VA, for amicus curiae Protect Our Defenders. Also
represented by JEFFREY PIERCE LAMBERSON; KEVIN
EDWARD GAUNT, Washington, DC.
ALEC UMBERTO GHEZZI, Veterans’ Voice of America, Sil-
ver Spring, MD, for amicus curiae Vietnam Veterans of
America.
______________________
Before NEWMAN, LINN, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
Plaintiff-Appellant Robert Doyon petitioned the Board
for the Correction of Naval Records (BCNR) to correct his
military service records to state that he was discharged
from the Navy for service-connected post-traumatic stress
disorder (PTSD) rather than a “personality disorder.” Af-
ter the BCNR denied his petition, Doyon brought suit in
the Court of Federal Claims (Claims Court), seeking disa-
bility retirement payment for service-connected PTSD pur-
suant to
10 U.S.C. § 1201 and alleging that the BCNR
failed to review his application with “liberal consideration.”
The government moved for judgment on the administrative
record, which the Claims Court granted. The court rea-
soned that the “liberal consideration” standard does not ap-
ply to the type of correction Mr. Doyon requested.
Because Mr. Doyon challenges the correctness of the
narrative reason for his discharge, as stated in his military
records, and because both
10 U.S.C. § 1552(h) and a De-
partment of Defense memorandum (Kurta Memo) require
liberal consideration for such correction requests, the
Claims Court erred in holding that the liberal
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DOYON v. US 3
consideration standard does not apply to Mr. Doyon’s peti-
tion. Accordingly, we vacate the Claims Court’s decision
granting judgment on the administrative record in favor of
the government and remand with instructions to afford Mr.
Doyon’s application liberal consideration.
BACKGROUND
I. Statutory and Regulatory Background
Congress created a statutory framework of administra-
tive boards to adjudicate petitions by current or former mil-
itary service members to correct their military records.
10 U.S.C. § 1552. Congress authorized the Secretaries of
military departments, acting through such administrative
boards for each department, to “correct any military rec-
ord” when “necessary to correct an error or remove an in-
justice.”
Id. § 1552(a)(1); see also
32 C.F.R. § 723.2
(establishing the BCNR). A service member who believes
he was erroneously denied disability retirement due to er-
rors in his military records may petition the BCNR for cor-
rection of his military record. See Chambers v. United
States,
417 F.3d 1218, 1225 (Fed. Cir. 2005) (explaining
that “where the service member was released from service
without a [retirement] board hearing and subsequently
files a claim for disability retirement before a military cor-
rection board, the Correction Board becomes the first
proper board to act (or to be asked to act) on the matter
. . . . [and a] Correction Board proceeding becomes a man-
datory remedy” (internal quotation marks and citation
omitted)). There is no dispute that the BCNR has the
power to make corrections granting or amending military
disability retirement. Appellant’s Br. 34; Appellee’s Br. 20.
In 2014, Secretary of Defense Chuck Hagel issued guid-
ance to correction boards regarding claims seeking to up-
grade a service member’s discharge characterization based
on previously unrecognized PTSD. J.A. 1232–35 (Hagel
Memo). The Hagel Memo noted that, because “PTSD was
not recognized as a diagnosis at the time of service” for
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4 DOYON v. US
Vietnam veterans and because PTSD diagnoses often
“were not made until decades after service was completed,”
many veterans’ records lack sufficient “substantive infor-
mation” concerning PTSD. J.A. 1232. The Hagel Memo
therefore instructed correction boards to give liberal con-
sideration to “petitions for changes in characterization of
service” when the former service member’s records “docu-
ment one or more symptoms” of PTSD.
Id. “Characteriza-
tion of service” is a term of art that appears on military
discharge paperwork and that reflects the circumstances of
a veteran’s separation from military service—i.e., “Honor-
able,” “General (Under Honorable Conditions),” and “Un-
der Other Than Honorable Conditions.” See Dep’t of
Defense (DoD) Instruction 1332.14 at Encl. 4, ¶ 3(b)(2).
Then, on August 25, 2017, Undersecretary of Defense
Anthony Kurta issued another memorandum, titled “Clar-
ifying Guidance to Military Discharge Review Boards and
Boards for Correction Military/Naval Records Considering
Requests by Veterans for Modification of their Discharge
Due to Mental Health Conditions; Traumatic Brain Injury;
Sexual Assault; or Sexual Harassment” (Kurta Memo), to
expand on the Hagel Memo and to promote “greater uni-
formity amongst the review boards.” J.A. 1940; see also
J.A. 1943 ¶ 22. Unlike the Hagel Memo, which was focused
on “petitions for changes in characterization of service”—
e.g., changing a service member’s discharge from dishonor-
able or less-than-honorable to honorable, J.A. 1234, the
Kurta Memo’s guidance is not limited to discharge charac-
terization upgrades and applies to “any petition seeking
discharge relief including requests to change the narrative
reason, re-enlistment codes, and upgrades from General to
Honorable characterizations,” J.A. 1943 ¶ 24.
Like the Hagel Memo, the Kurta Memo explains that
the more lenient liberal consideration evidentiary standard
is appropriate for PTSD-related correction claims because
“[i]t is unreasonable to expect the same level of proof for
injustices committed years ago when . . . PTSD . . . w[as]
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DOYON v. US 5
far less understood than [it is] today.” J.A. 1943–44
¶ 26(a), (b), (k). Evidence relevant to a PTSD-related peti-
tion may include “changes in behavior, . . . deterioration in
work performance; inability of the individual to conform
their behavior to the expectations of the military environ-
ment; substance abuse; episodes of depression, panic at-
tacks, or anxiety” and more. J.A. 1941 ¶ 5. Additionally,
the “veteran’s testimony alone” may establish the existence
of PTSD, and a service-connection determination by the VA
is “persuasive evidence” that PTSD existed during military
service. J.A. 1942 ¶¶ 13–14. There is no dispute that the
Hagel and Kurta Memos’ guidance is binding on the BCNR.
See Fisher v. United States,
402 F.3d 1167, 1177 (Fed. Cir.
2005) (“[T]he military is bound to follow its own procedural
regulations should it choose to promulgate them.”).
Congress subsequently codified the liberal considera-
tion standard into the BCNR’s authorizing statute on De-
cember 12, 2017, when it amended
10 U.S.C. § 1552 to add
sub-section (h). See National Defense Authorization Act
for Fiscal Year 2018,
Pub. L. No. 115-91 § 520,
131 Stat.
1283, 1379, 1380 (2017). Section 1552(h) imposed a re-
quirement on correction boards to review claims involving
PTSD with liberal consideration. See
10 U.S.C. § 1552(h).
Under controlling naval regulations at the time of Mr.
Doyon’s discharge, service members could be “separated
[from military service], by reason of unsuitability, with an
honorable or general discharge” for, among other reasons,
character and behavioral disorders “[a]s determined by
medical authority.” J.A. 1834 (Bureau of Naval Personnel
Manual—Part C) § 10310(1), (2)(e). To discharge a service
member as “unsuitable” due to a personality disorder, “the
disorder [must be] of such severity as to render the member
incapable of serving adequately.” Id. § 10310(4). Moreo-
ver, controlling DoD regulations at the time of Mr. Doyon’s
discharge distinguished personality disorders, such as
character and behavioral disorders, from physical disabili-
ties, such as psychoses and psychoneuroses (then-
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6 DOYON v. US
analogues to PTSD). See DoD Directive 1332.18, Encl. 2,
§ XIV ¶ 3(a) (Sept. 9, 1968) (J.A. 1190) (specifying that
“[c]haracter and behavior disorders may render an individ-
ual unsuitable rather than unfit because of physical disa-
bility” (emphasis added)); see also id., Encl. 1 ¶ E
(J.A. 1164) (defining “physical disability” as including
“mental disease [except] behavior disorders, personality
disorders, and primary mental deficiency”).
Military disability retirement, on the other hand, is
governed by
10 U.S.C. § 1201, which provides: “[U]pon the
Secretary’s determination that a service member is ‘unfit
to perform the duties of the member’s office, grade, rank,
or rating because of physical disability incurred while en-
titled to basic pay,’ the service member may retire for dis-
ability.” See Chambers,
417 F.3d at 1223, 1224 (quoting
10 U.S.C. § 1201(a)); see also DoD Directive 1332.18
§ V(A)(1) (Sept. 9, 1968) (J.A. 1153) (setting forth “Stand-
ards of Unfitness by Reason of Physical Disability”). A sep-
arate Physical Examination Board “determines a service
member’s fitness for duty and entitlement to disability re-
tirement once a Medical Examination Board . . . finds the
soldier does not meet the [military department’s] stand-
ards for retention under its regulations.” See Chambers,
417 F.3d at 1225 n.2. So while some service members
might be discharged from military service on “unsuitabil-
ity” grounds, other service members may instead retire
from service due to disability if the Secretary of their re-
spective military department determines that they are “un-
fit” for duty.
II. Mr. Doyon’s Military Service
Mr. Doyon served in the Navy from March 17, 1966, to
November 21, 1968. J.A. 1102; J.A. 1136. During the Vi-
etnam War, Mr. Doyon was assigned to the U.S.S. Intrepid,
where he attained the rank of Airman and received several
medals and commendations, including the Vietnam Service
Medal (One Bronze Star), the Vietnam Campaign Medal,
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DOYON v. US 7
and the National Defense Service Medal. J.A. 1240–46;
J.A. 1969.
On July 29, 1967, a rocket misfired on the deck of the
U.S.S. Forrestal, causing an explosion and fire that re-
sulted in more than 130 deaths and 160 injuries.
J.A. 1001–02 ¶ 2; J.A. 1251–55. From the deck of the In-
trepid, Mr. Doyon witnessed the immediate aftermath of
the explosion and fire.
Id. On October 23, 1967, four mem-
bers of the Intrepid went Absent Without Leave (AWOL).
J.A. 1007–08 ¶ 24; J.A. 1255. Mr. Doyon alleges that be-
cause he was friendly with two of the deserters, he was ver-
bally and physically harassed and threatened by his
shipmates. J.A. 1007–08 ¶ 24; J.A. 1577 ¶ 12. In April
1968, Mr. Doyon’s parents wrote to Senator Edward Ken-
nedy about his mental health, and Senator Kennedy, in
turn, wrote to the commanding officer of the Intrepid.
J.A. 1008 ¶ 25. The commanding officer subsequently rep-
rimanded Mr. Doyon for going outside of the chain of com-
mand. J.A. 1254.
In May 1968, Mr. Doyon went AWOL for two days.
J.A. 1246; J.A. 1256; J.A. 1268–69. Upon his return to the
Intrepid, Mr. Doyon was referred to the ship’s sick bay be-
cause of his “inability to get along with his peers, his recent
mental agitation and deteriorating work habits, and his ex-
pression of admiration for several of 1967’s famous four de-
serters.” J.A. 1009 ¶ 28. Once admitted to sick bay, he was
sedated with Thorazine, which Mr. Doyon contends is an
antipsychotic. J.A. 1009 ¶ 28; J.A. 1115; see also J.A. 1258.
On August 16, 1968, Mr. Doyon was transferred to Naval
Base Subic Bay for further evaluation. J.A. 1009 ¶ 29.
While at Subic Bay, a medical evaluation diagnosed Mr.
Doyon with “passive aggressive personality disorder.” J.A.
1009 ¶ 30.
On August 31, 1968, Mr. Doyon returned to the In-
trepid. J.A. 1010 ¶ 32. Less than a month later, Mr. Doyon
witnessed a fatal plane crash, including dismemberment of
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8 DOYON v. US
a fellow Airman, while he was standing duty at a video re-
cording console. J.A. 1010–11 ¶ 36; J.A. 1256–57.
Mr. Doyon was then spent several hours replaying video
recordings of the crash for Air Department and Incident
Report Personnel. J.A. 1011 ¶ 37; J.A. 1257.
On September 26, 1968, the commanding officer of the
Intrepid recommended the Navy separate Mr. Doyon from
military service for unsuitability, citing his diagnosis of
passive-aggressive personality disorder. J.A. 1279. A sub-
sequent psychiatric evaluation conducted on October 28,
1968, changed Mr. Doyon’s diagnosis to “Emotionally Un-
stable Personality #3210, with noted paranoid trait in his
personality.” J.A. 1002 ¶ 4; J.A. 1115; J.A. 1052.
On November 21, 1968, Mr. Doyon was discharged
from the Navy. J.A. 1134. The “Characterization of Ser-
vice” field on Mr. Doyon’s DD-214 form 1 characterized his
discharge as “Honorable,” and the “Reason and Authority”
field on his DD-214 form contained a separation code indi-
cating that he was discharged for unsuitability due to a
personality disorder. 2 See J.A. 1102. Accordingly, Mr.
1 Mr. Doyon’s DD-214 form is entitled “Armed Forces
of the United States Report of Transfer or Dis-
charge.” J.A. 1102. A DD-214 form provides “a clear, con-
cise summary of each discrete period of active
service . . . . [and] includes relevant data regarding the
[service] member’s service and the circumstances of termi-
nation” and serves as “an authoritative source of personnel
information for administrative purposes, and for making
enlistment or reenlistment eligibility determina-
tions.” DoD Instruction 1336.01 § 1.2(d)(1), (2) (Feb. 17,
2022).
2 The “BUPERS MANUAL ART. C-10310” separa-
tion code in the “Reason and Authority” field of Mr. Doyon’s
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DOYON v. US 9
Doyon was not eligible to receive a military disability re-
tirement.
III. Administrative Proceedings
In December 2013, Mr. Doyon filed an application for
disability compensation with the Department of Veterans
Affairs (VA) for PTSD. J.A. 1404. In June 2014, a VA psy-
chiatrist diagnosed Mr. Doyon with PTSD and opined that
he had experienced in-service stressors, including witness-
ing the fatal plane crash and the Forestall fire.
J.A. 1112–20. The VA subsequently granted Mr. Doyon’s
application for disability compensation due to PTSD and
assigned a 50-percent disability rating, effective December
9, 2013. J.A. 1136–39. On November 18, 2015, based on a
PTSD diagnosis by a second VA psychiatrist, the VA
granted Mr. Doyon’s claim for an increased disability rat-
ing and assigned a 70-percent disability rating, effective
August 27, 2015. J.A. 1406–12; J.A. 1141–44.
In September 2017, Mr. Doyon sought correction of his
military records with the BCNR. J.A. 1068–70. Specifi-
cally, Mr. Doyon requested that the BCNR correct the sep-
aration code indicating the narrative reason for his
discharge on his DD-214 form to: (1) reflect that he was
medically retired due to physical disability; (2) reflect that
he was unfit and medically retired for psychoses or psycho-
neuroses (then-analogues to PTSD); and (3) remove any
reference to unsuitability due to personality disorder. 3
J.A. 1068; see also J.A. 1094 (supporting brief requesting
DD-214 corresponds to “Discharge of Enlisted Personnel by
Reason of Unsuitability.” See J.A. 1102; J.A. 1834.
3 The narrative reason for Mr. Doyon’s discharge is
a separation code, and he seeks to correct the narrative rea-
son by changing to a different separation code, one neces-
sary for military disability retirement. See J.A. 1102;
J.A. 1068.
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10 DOYON v. US
same). Mr. Doyon also argued that his request was entitled
to liberal consideration pursuant to
10 U.S.C. § 1552.
J.A. 1074.
To support his application, Mr. Doyon submitted a psy-
chiatric evaluation report from Dr. Ted R. Greenzang, who
opined that (i) Mr. Doyon experienced manifestations of
PTSD at the time of his military discharge from the mili-
tary, (ii) his medical history was inconsistent with a per-
sonality disorder diagnosis, and (iii) his separation from
the Navy for unsuitability was “not an appropriate disposi-
tion.” J.A. 1423–39. The BCNR then sought an advisory
opinion from Secretary of the Navy Council of Review
Boards (CORB), J.A. 1067, and a CORB medical advisor
responded that the evidence did not support a determina-
tion that Mr. Doyon had a PTSD-based physical disability,
J.A. 1052–57. The medical advisor therefore concluded
that there was insufficient evidence to support an unfitness
determination but noted that reconsideration would be ap-
propriate “[s]hould further evidence surface supporting un-
fitness or a disability retirement.” J.A. 1056. Mr. Doyon
responded to that advisory opinion and submitted a re-
sponsive report from Dr. Greenzang. J.A. 1803–12;
J.A. 1815–20.
On November 20, 2018, the BCNR denied Mr. Doyon’s
petition. J.A. 1049–51. The BCNR “substantially con-
curred” with the advisory opinion, concluding that the evi-
dentiary record did not warrant a change to Mr. Doyon’s
military record. J.A. 1050. As to Dr. Greenzang’s opinion
and Mr. Doyon’s recent VA ratings for his PTSD condition,
the BCNR found that “these findings were made too distant
in time from 1968 to be probative of [Mr. Doyon’s] fitness
for continued naval service in 1968” and there was “more
than enough evidence [in Mr. Doyon’s military record] of
behavior consistent with a personality disorder to support
the diagnosis made in 1968.”
Id.
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DOYON v. US 11
IV. Claims Court Proceeding
On December 27, 2019, Mr. Doyon initiated a military
pay action before the Claims Court, challenging the
BCNR’s denial of his request to correct his military records
to reflect that he was unfit for duty and medically retired
for psychosis or psychoneuroses associated with PTSD.
Doyon v. United States, No. 19-1964C,
2021 WL 120923,
at *1 (Fed. Cl. Jan. 13, 2021). As relief, Mr. Doyon sought
(i) an order that his military records be corrected, (ii) mili-
tary disability retirement pay, and (iii) other pay.
Id. The
government moved to dismiss Mr. Doyon’s complaint for
lack of subject-matter jurisdiction and for failure to state a
claim upon which relief can be granted.
Id. The parties
also filed cross-motions for judgment upon the administra-
tive record.
Id. Mr. Doyon argued that the BCNR erred by
failing to review his application with liberal consideration
pursuant to
10 U.S.C. § 1552(h) and the Kurta Memo.
J.A. 2134–35; J.A. 2304–05; J.A. 2326. The government
argued that the Kurta Memo does not mandate liberal con-
sideration under the circumstances because the memo is
limited to misconduct-based upgrades or modifications to a
service member’s characterization of service (characteriza-
tion upgrades)—e.g., changing a service member’s dis-
charge from dishonorable or less-than-honorable to
honorable. J.A. 2212. The government did not substan-
tively respond to Mr. Doyon’s § 1552(h) arguments. See
J.A. 2214.
In its decision, the Claims Court concluded that the
Kurta Memo is not limited to misconduct-based discharge
upgrades or modifications but instead requires the BCNR
to also afford liberal consideration to requests seeking to
correct the narrative reason for a service member’s dis-
charge. See Doyon,
2021 WL 120923, at *10. The court
found, however, that the BCNR did not err by not applying
liberal consideration to Mr. Doyon’s case because he sought
“a determination regarding his fitness for duty in 1968,”
which is a necessary finding for military disability
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12 DOYON v. US
retirement, rather than “challeng[ing] the narrative reason
for his discharge” from the Navy for unsuitability based on
a personality disorder. Id.; see also
10 U.S.C. § 1201(a).
Mr. Doyon timely appealed to this court. We have ju-
risdiction over an appeal from a final decision of the Claims
Court pursuant to
28 U.S.C. § 1295(a)(3).
DISCUSSION
I. Standard of Review
Service members who are dissatisfied with the decision
of the BCNR may seek judicial review, Mitchell v. United
States,
930 F.2d 893, 896 (Fed. Cir. 1991), but a court may
only set aside the BCNR’s decision if it was “arbitrary or
capricious, unsupported by substantial evidence, or other-
wise not in accordance with law”—i.e., “essentially the
standard under which administrative agency decisions are
reviewed,” Fisher,
402 F.3d at 1180. “We review a decision
of the Court of Federal Claims granting or denying a mo-
tion for judgment on the administrative record without def-
erence.” Barnick v. United States,
591 F.3d 1372, 1377
(Fed. Cir. 2010) (citing Chambers,
417 F.3d at 1227). We
therefore apply “the same standard of review as the trial
court” and will not disturb the BCNR’s decision unless it is
“arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.”
Id.
II. Liberal Consideration
Mr. Doyon’s application asked the BCNR to change the
narrative reason for his discharge indicated on his DD-214
form from unsuitability due to personality disorder to a
PTSD-related physical disability so that he would be eligi-
ble for disability retirement payments. Appellant’s Br. 40–
41; J.A. 1068; J.A. 1073, 1094. The only dispute is whether
the BCNR was required to apply a “liberal consideration”
standard to Mr. Doyon’s application pursuant to either the
Kurta Memo or
10 U.S.C. § 1552(h). We consider each the-
ory separately.
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DOYON v. US 13
A. Kurta Memo
Mr. Doyon argues that the BCNR should have given
liberal consideration, in view of the Kurta Memo, to his ap-
plication to correct the narrative reason on his DD-214
form. Appellant’s Br. 39–49. The government again ar-
gues that the Kurta Memo is limited to characterization
upgrades and does not encompass changing a narrative
reason for discharge to medical disability retirement. Ap-
pellee’s Br. 32–35. We agree with the Claims Court that
the Kurta Memo is not limited to characterization up-
grades but “requires that the BCNR give ‘liberal consider-
ation’ to applications seeking discharge relief that
challenge the narrative reason for a military discharge.”
Doyon,
2021 WL 120923, at *10. However, we disagree
with the Claims Court’s finding that Mr. Doyon is not chal-
lenging the reason for his discharge. Mr. Doyon requested
the BCNR change the narrative reason on his DD-214 form
to reflect that he was discharged due to physical disability
(i.e., PTSD) rather than personality disorder. Mr. Doyon
thus challenged his narrative reason for discharge, and
such challenge is entitled to liberal consideration under the
Kurta Memo.
To ensure “greater uniformity amongst the review
boards,” the Kurta Memo instructs that liberal considera-
tion (1) “will be given” to a veteran’s application for dis-
charge relief “based in whole or in part on matters relating
to mental health conditions, including PTSD”; and (2) is
not limited to characterization upgrades (e.g., from Under
Other Than Honorable Condition to Honorable Discharge)
but “appl[ies] to any petition seeking discharge relief includ-
ing requests to change the narrative reason, re-enlistment
codes, and upgrades from General to Honorable character-
izations.” J.A. 1940; J.A. 1941 ¶ 3; J.A. 1943 ¶ 24 (empha-
sis added); see also J.A. 1943 ¶ 20 (defining “discharge” as
including “the characterization, narrative reason, separa-
tion code, and re-enlistment code” (emphasis added)). In
other words, the narrative reason for discharge is a
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14 DOYON v. US
distinct, recognized basis for correction, separate and apart
from upgrading or modifying a service member’s character-
ization of service, and is entitled to liberal consideration.
See also LaBonte v. United States,
43 F.4th 1357, 1374
(Fed. Cir. 2022) (noting that “[t]he Kurta Memo . . .
make[s] clear that this liberal consideration applies not
only to upgrades to the character of a discharge, but also to
requests for changes to the narrative reason for separation
on a veteran’s DD-214”).
Moreover, the Kurta Memo expressly authorizes the
BCNR to analyze evidence related to the correctness of the
narrative reason for discharge: “Evidence that may rea-
sonably support more than one diagnosis or a change in di-
agnosis, particularly where the diagnosis is listed as the
narrative reason for discharge, will be liberally construed
as warranting a change in narrative reason to ‘Secretarial
Authority,’ ‘Condition not a disability,’ or another appropri-
ate basis.” J.A. 1942–43 ¶ 17 (emphasis added); see also
J.A. 1942 ¶¶ 13–14 (explaining that “[a] diagnosis made by
a licensed psychiatrist or psychologist that the condition
existed during military service will receive liberal consid-
eration” and that a determination made by the VA should
be considered “persuasive evidence” that PTSD existed
during military service). The memo further explains that
“liberal consideration” is the appropriate evidentiary bur-
den under these circumstances because “[i]t is unreasona-
ble to expect the same level of proof for injustices
committed years ago when” PTSD was “far less understood
than [it is] today.” J.A. 1943 ¶ 26. In sum, a veteran’s chal-
lenge to the recorded narrative reason for discharge neces-
sarily encompasses the factual determinations necessary
to correct or maintain the narrative reason.
Here, Mr. Doyon contends that the narrative reason for
his discharge, as represented in his DD-214 form, should
be corrected from the “BUPERSMAN Art. C-10310, 265”
separation code (i.e., unsuitability due to personality disor-
der) to the “BUPERSMAN C-10305” separation code (i.e.,
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DOYON v. US 15
separation due to physical disability). Appellant’s
Br. 40–41; J.A. 1001 (Appellant’s complaint to the Claims
Court); see also J.A. 1068 (Appellant’s application to the
BCNR); J.A. 1073, 1094 (Appellant’s briefing to the
BCNR); J.A. 1969 (Appellant’s DD-214 form); J.A. 1830
(description for BUPERSMAN C-10305). Regardless of
whether an unfitness determination is necessary for an ul-
timate determination of whether Mr. Doyon was entitled to
military disability retirement, see Doyon,
2021 WL 120923,
at *10, Mr. Doyon’s application to the BCNR is nonetheless
a challenge to the accuracy of the narrative reason listed
on his DD-214 form. As such, the Kurta Memo requires
that the BCNR review Mr. Doyon’s application with liberal
consideration.
Because the Claims Court mischaracterized Mr.
Doyon’s claim as not challenging the narrative reason for
his discharge and, thus, determined that liberal considera-
tion was not required, vacatur is warranted. We offer no
opinion as to whether liberal consideration would entitle
Mr. Doyon to a correction of his DD-214 form or to disabil-
ity retirement. See discussion infra § III. The BCNR le-
gally erred by reviewing the merits of Mr. Doyon’s
application without giving it liberal consideration.
B.
10 U.S.C. § 1552(H)
Mr. Doyon separately argues that
10 U.S.C. § 1552(h)
requires that the BCNR give liberal consideration to his
correction request because his application is a “claim under
[§ 1552] for review of a discharge,” “based in whole or in
part on matters related to [PTSD],” and his service-con-
nected PTSD “contributed to the circumstances resulting
in [his] discharge.” Appellant’s Br. 32–33 (quoting
§ 1552(h)(1), (2)(B)). The government disagrees, arguing
that § 1552(h) cannot be retroactively applied to his appli-
cation and that it is substantively inapplicable to the same.
Case: 21-2095 Document: 63 Page: 16 Filed: 01/25/2023
16 DOYON v. US
We disagree with the government and address each objec-
tion separately. 4
1
The government argues that Mr. Doyon failed to
demonstrate that § 1552(h), which was enacted after Mr.
Doyon filed his application to the BCNR, retroactively ap-
plied to his application. Appellee’s Br. 20. Although the
government’s argument was not presented to the Claims
4 The government also asserts that Mr. Doyon did
not preserve his § 1552(h)-based arguments by failing to
present it to the BCNR. Appellant’s Br. 18–20. Even if
that were the case, the government did not object below
when Mr. Doyon repeatedly argued to the Claims Court
that § 1552(h)(2)(B) required the BCNR to review his ap-
plication with liberal consideration. J.A. 2134–35;
J.A. 2304–05; J.A. 2326 & n.1. Accordingly, the govern-
ment forfeited its preservation argument. See In re Google
Tech. Holdings LLC,
980 F.3d 858, 862 (Fed. Cir. 2020).
Moreover, we exercise our discretion to consider the inter-
pretation of § 1552(h) because Mr. Doyon pressed his
§ 1552(h)-based argument to the Claims Court and the par-
ties’ cross-motions for judgment based on the administra-
tive record suggest that the factual record needs no further
development. See Singleton v. Wulff,
428 U.S. 106, 121
(1976) (“The matter of what questions may be taken up and
resolved for the first time on appeal is one left primarily to
the discretion of the courts of appeals, to be exercised on
the facts of individual cases.”); see also White v. U.S. Dep’t
of the Army,
720 F.2d 209, 211 (D.C. Cir. 1983) (“Exercise
of that discretion is particularly appropriate where . . . the
question is a purely legal one, the resolution of which would
not be aided by any further factual development. . . . [and
the agency] has fully stated its position and reasoning on
this issue.”).
Case: 21-2095 Document: 63 Page: 17 Filed: 01/25/2023
DOYON v. US 17
Court—despite argument by Mr. Doyon regarding
§ 1552(h)—we nonetheless conclude that § 1552(h) applies
to the BCNR’s decision on Mr. Doyon’s application.
“A statute does not operate ‘retrospectively’ merely be-
cause it is applied in a case arising from conduct antedat-
ing the statute’s enactment.” Landgraf v. USI Film Prods.,
511 U.S. 244, 265, 269 (1994). To determine whether a
“statute should be applied to a case that originated before
the statute was passed”—i.e., whether applying the statute
would have improper “retroactive effect”—the question is
“whether the new provision attaches new legal conse-
quences to events completed before its enactment.” Rodri-
guez v. Peake,
511 F.3d 1147, 1152–53 (Fed. Cir. 2008)
(citing Landgraf,
511 U.S. at 269–70).
We typically examine three factors to determine
whether a statute would have retroactive effect:
“(1) whether it would impair rights possessed by a party
when he acted, (2) whether it would increase a party’s lia-
bility for past conduct, or (3) whether it would impose new
duties with respect to already completed transactions.” Id.
at 1153. Here,
10 U.S.C. § 1552(h) prescribes the circum-
stances in which the BCNR must apply liberal considera-
tion. It does not impair Mr. Doyon’s rights, increase his
liability for past conduct, or impose any new duties on him.
Likewise, § 1552(h) does not impair the rights of, increase
the liability of, or impose new legal consequences on the
government because the Kurta Memo already required the
BCNR to review “any petition seeking discharge relief”
with liberal consideration. See Rodriguez v. Peake,
511
F.3d at 1152–53; see also J.A. 1943. As such, the BCNR
was obligated to “apply the law in effect at the time it ren-
ders its decision, unless doing so would result in manifest
injustice or there is statutory direction or legislative his-
tory to the contrary.” See Bradley v. Sch. Bd. of Richmond,
416 U.S. 696, 711 (1974); see also Landgraf,
511 U.S. at 278
(explaining that Bradley is “consistent with a presumption
against statutory retroactivity”). And although the Claims
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18 DOYON v. US
Court recognized that Congress codified the liberal consid-
eration standard with respect to reviewing “the circum-
stances resulting in the discharge,” Doyon,
2021 WL
120923, at *3 (quoting
10 U.S.C. § 1552(h)(2)(B)), the court
did not apply § 1552(h), which was “in effect at the time it
render[ed] its decision,” nor explain its decision not to ap-
ply § 1552(h), cf. Bradley,
416 U.S. at 711. We therefore
hold that the BCNR and Claims Court erred by failing to
consider the effect of § 1552(h) on Mr. Doyon’s application.
2
The government also argues that the plain meaning of
“review of a discharge or dismissal” in
10 U.S.C. § 1552(h)
does not include review of an honorable discharge for rea-
sons other than misconduct. Appellee’s Br. 21. We disa-
gree.
Section 1552(h) codified the liberal consideration
standard prescribed by the Kurta Memo. Section 1552(h)
states in full:
(h)(1) This subsection applies to a former member
of the armed forces whose claim under this section
for review of a discharge or dismissal is based in
whole or in part on matters relating to post-trau-
matic stress disorder or traumatic brain injury as
supporting rationale, or as justification for priority
consideration, and whose post-traumatic stress dis-
order or traumatic brain injury is related to combat
or military sexual trauma, as determined by the
Secretary concerned.
(2) In the case of a claimant described in para-
graph (1), a board established under subsec-
tion (a)(1) shall—
(A) review medical evidence of the Secre-
tary of Veterans Affairs or a civilian health
care provider that is presented by the
claimant; and
Case: 21-2095 Document: 63 Page: 19 Filed: 01/25/2023
DOYON v. US 19
(B) review the claim with liberal considera-
tion to the claimant that post-traumatic
stress disorder or traumatic brain injury
potentially contributed to the circum-
stances resulting in the discharge or dismis-
sal or to the original characterization of the
claimant’s discharge or dismissal.
10 U.S.C. § 1552(h) (emphases added). In short, § 1552(h)
applies to all “former member[s] of the armed forces whose
claim under this section for review of a discharge or dismis-
sal is based in whole or in part on matters relating to post-
traumatic stress disorder.” Id. § 1552(h)(1). And the
BCNR must review such claims “with liberal consideration
to the claimant that post-traumatic stress disorder” (1) “po-
tentially contributed to the circumstances resulting in the
discharge or dismissal” or (2) potentially contributed to the
“original characterization of the claimant’s discharge or
dismissal.” Id. § 1552(h)(2)(B).
There appears to be no dispute that Mr. Doyon is a “for-
mer member of the armed forces.” See id. § 1552(h)(1). Nor
that his claim is “based in whole or in part on matters re-
lating to post-traumatic stress disorder” that is “related to
combat.” Id. § 1552(h)(1); see also Doyon,
2021 WL 120923,
at *13 (Claims Court noting that Mr. Doyon’s “PTSD diag-
nosis is not in dispute”). Instead, the parties dispute
whether Mr. Doyon’s application seeks a “review of a dis-
charge or dismissal” that is entitled to liberal considera-
tion. See Appellant’s Br. 33–38; Appellee’s Br. 21–23.
The government argues that liberal consideration un-
der § 1552(h) is limited only to upgrading or modifying a
service member’s characterization of service. See Appel-
lee’s Br. 23. However, nothing in the text of § 1552(h) lim-
its liberal consideration for PTSD-related claims to
characterization upgrades or any other subset of miscon-
duct-related discharge relief regularly provided by the
BCNR. Although not defined within the statute, the word
Case: 21-2095 Document: 63 Page: 20 Filed: 01/25/2023
20 DOYON v. US
“discharge” in § 1552(h)(1)’s “review of a discharge or dis-
missal” language plainly refers to “severance from military
service.” See Gumpenberger v. Wilkie,
973 F.3d 1379, 1382
(Fed. Cir. 2020) (“A court interpreting the statute ‘pre-
sume[s] that Congress intended to give those words their
plain and ordinary meanings.’” (alteration in original) (ci-
tation omitted)); see also Discharge, Black’s Law Dictionary
(11th ed. 2019) (“8. The dismissal of a member of the armed
services from military service.”); DoD Instruction 1332.14,
Encl. 6, at 54 (defining “discharge as “[c]omplete severance
from all military status gained through enlistment or in-
duction”). Even if “discharge” may refer to characterization
of service when the term is accompanied by a preceding
characterization modifier, 5 such as “honorable discharge,”
for example, the unmodified “discharge” recited in
§ 1552(h)(1) is not limited to any particular characteriza-
tion, honorable or otherwise. Moreover, the government’s
blanket, unsupported assertion that “discharge” has a set-
tled meaning that is limited to a service member’s charac-
terization of service, see Appellant’s Br. 32–33, is
undermined by the Kurta Memo’s definition of “discharge”
as encompassing “narrative reason, separation code, and
re-enlistment code” in addition to “characterization,” see
J.A. 1943 ¶ 20.
Furthermore, the express language of the statute
makes clear that “review of discharge or dismissal” is not
limited to just upgrading or modifying characterization of
service. The statute does state, as one basis for providing
liberal consideration, a claim that PTSD potentially con-
tributed to “the original characterization of the claimant’s
5 See Discharge, Black’s Law Dictionary (11th ed.
2019) (providing characterization-specific definitions for
“administrative discharge,” “bad-conduct discharge,” “dis-
honorable discharge,” “general discharge,” “honorable dis-
charge,” and “undesirable discharge”).
Case: 21-2095 Document: 63 Page: 21 Filed: 01/25/2023
DOYON v. US 21
discharge or dismissal.”
10 U.S.C. § 1552(h)(2)(B). But the
statute also states a second, broader basis for liberal con-
sideration: whether PTSD “potentially contributed to the
circumstances resulting in the discharge or dismissal.”
Id.
Had Congress intended to limit liberal consideration only
to upgrading or modifying a service member’s characteri-
zation of service, the statute would not include the altera-
tive “circumstances resulting in the discharge” clause as an
additional, separate ground for liberal consideration. See
id. The government’s overly narrow reading would render
the “circumstances resulting in the discharge or dismissal”
clause superfluous and violate the “‘cardinal principle of
statutory construction’ that ‘a statute ought, upon the
whole, to be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous, void, or in-
significant.’” See Gumpenberger, 973 F.3d at 1382 (citation
omitted); see also, e.g., Lowe v. SEC,
472 U.S. 181, 207 n.53
(1985); Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 174–79 (2012). Moreo-
ver, whether the reason for Mr. Doyon’s discharge from the
Navy was based on a misdiagnosis of personality disorder
instead of PSTD is a question that falls within the plain
meaning of the “circumstances resulting in the discharge,”
to which § 1552(h)(2)(B) affords “liberal consideration.”
Contrary to the government’s arguments, that similar
“liberal consideration” language is found in
10 U.S.C.
§ 1553(d) does not control or limit
10 U.S.C. § 1552(h). See
Appellee’s Br. 23. Section 1553 establishes discharge re-
view boards (DRBs), which have the limited authority to
“change a discharge or dismissal, or issue a new discharge.”
10 U.S.C. § 1553(b)(1); see also
32 C.F.R. § 724.205(a)(9)
(“The [DRB] shall have no authority to . . . [c]hange the
reason for discharge from or to a physical disability.” (em-
phasis added)). The BCNR’s authority is broader; it may
“correct any military record” when “necessary to correct an
error or remove an injustice.”
10 U.S.C. § 1552(a)(1) (em-
phasis added). So unlike the BCNR, the scope of liberal
Case: 21-2095 Document: 63 Page: 22 Filed: 01/25/2023
22 DOYON v. US
consideration at the DRB is circumscribed by the jurisdic-
tion of the DRB, not by the language in § 1553(d).
Accordingly,
10 U.S.C. § 1552(h)(1)’s “review of a dis-
charge” refers to the BCNR’s power to review and correct
records related to a former service member’s “severance
from military service.” 6 Mr. Doyon’s DD-214 form, titled
“Report of Transfer or Discharge,” includes a field indicat-
ing the narrative reason for his discharge—i.e., the “Rea-
son and Authority.” J.A. 1102. Mr. Doyon seeks to correct
this field. J.A. 1068; see also J.A. 1094. Whether Mr.
Doyon’s discharge was misattributed to unsuitability based
on a personality disorder instead of unfitness based on
PTSD-related disability plainly falls within
10 U.S.C.
§ 1552(h)’s requirement that the BCNR shall apply liberal
consideration when reviewing whether PTSD “potentially
contributed to the circumstances resulting in the dis-
charge.” Thus, the BCNR erred by not reviewing Mr.
6 After oral arguments, the government filed a letter
pursuant to Rule 28(j) of the Federal Rules of Appellate
Procedure, arguing that “disability retirement is not a ‘dis-
charge’ because it is not a complete severance from all mil-
itary status.” See Appellee’s Letter, No. 21-2095 (July 6,
2022), ECF No. 61. Although the government purports to
offer this argument “in response to Mr. Doyon’s argument
that his request for a disability retirement is encompassed
by a ‘review of a discharge or dismissal’” under
10 U.S.C.
§ 1552(h) or the Kurta Memo,
id., the government never
raised this argument to the Claims Court. See discussion
supra note 4 (discussing the government’s forfeiture). Not-
withstanding forfeiture, Mr. Doyon was in fact discharged
from the Navy, and it is the recorded reason for that dis-
charge for which he seeks review and correction, regardless
of whether disability retirement is a complete separation
from the military.
Case: 21-2095 Document: 63 Page: 23 Filed: 01/25/2023
DOYON v. US 23
Doyon’s application to correct his DD-214 form with liberal
consideration. 7
III. Military Disability Retirement
Although this case is narrowly about correcting Mr.
Doyon’s military records to reflect a discharge due to PTSD
instead of a personality disorder, there is a larger underly-
ing dispute about whether Mr. Doyon was unfit, rather
than unsuitable, for service at the time of his discharge
from the Navy. Mr. Doyon argues that once the BCNR de-
termines that PTSD, rather than a personality disorder,
was the basis of his discharge from the Navy, he is auto-
matically entitled to a new separation code reflecting un-
fitness due to physical disability, and that entitles him to
medical retirement. See Appellant’s Br. 57–60; Appellant’s
Reply Br. 28–29; J.A. 1068. The government disagrees, ar-
guing that a determination that Mr. Doyon was discharged
due to PTSD does not automatically mean that he was also
unfit for service, which is a separate determination neces-
sary for him to receive medical retirement. See Appellee’s
Br. 51–53. This unfitness dispute between the parties is
not properly before us at this stage and can be addressed,
if necessary, on remand.
Accordingly, this case is remanded to the Claims Court
to instruct the BCNR to consider whether the record evi-
dence indicates, under the “liberal consideration”
7 Mr. Doyon also argues that the BCNR’s decision,
even without liberal consideration, is not supported by sub-
stantial evidence. Appellant’s Br. 48–57. Because we de-
cide today that the BCNR applied the wrong legal standard
in assessing Mr. Doyon’s petition, we think the better
course is to have the BCNR apply the liberal consideration
standard in the first instance rather than our court review
fact findings that had been made using an incorrect legal
standard.
Case: 21-2095 Document: 63 Page: 24 Filed: 01/25/2023
24 DOYON v. US
standard, that PTSD-related psychoses or psychoneuroses
“contributed to the circumstances resulting in [Mr.
Doyon’s] discharge,” see
10 U.S.C. § 1552(h)(2), and “war-
rant[s] a change in [the] narrative reason” for Mr. Doyon’s
discharge from the Navy, see, e.g., J.A. 1942–43.
CONCLUSION
For the foregoing reasons, the Claims Court’s decision
is vacated. The case is remanded to the court for further
proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
Costs to Appellant.
