Earlier this month, the Federal Circuit heard oral argument in Doyon v. United States, a case in which Doyon appeals a judgment by the Court of Federal Claims upholding a decision by the Board for the Correction of Naval Records to deny an application to modify his discharge records. Three amicus briefs were filed by veterans organizations in support of Doyon. This is our argument recap.
Michael Clemente argued for Doyon. He began by noting that Doyon’s “combat-induced PTSD is well documented, and it is not disputed by the government.” He then explained that in 1968 the Navy misdiagnosed his PTSD as a personality disorder and that this was a common problem for veterans of the Vietnam War. He asserted that Congress created a solution for Vietnam veterans by requiring the BCNR to apply “liberal consideration” to corrections. He concluded his introduction by saying the decisions below either ignored or dismissed the “liberal consideration requirement.”
One of the judges asked Clemente if there was a retroactivity problem in this case given that the applicable statute was enacted after Doyon filed his application to modify his discharge records. Clemente dismissed any concern by explaining that the statute was enacted before a decision had been rendered on the matter of his discharge record, so he is not asking to apply the statute retroactively.
Next, Clemente addressed a memo governing discharge record modification. He argued the memo expressly explains what “liberal consideration” ought to apply to and that “discharge” includes not only characterization of service but also “the narrative reason in the separation code and enlistment code.” He explained that Doyon wishes to change only the separation code on his discharge records. This change would simply change the narrative reason from a personality disorder to PTSD, Clemente explained.
A judge then asked about the language of 10 U.S.C. § 1552(h), the statute that Doyon claims mandates liberal consideration of his application. The judge said he understood Doyon’s plain language argument for § 1552(h), but then brought up the government’s argument comparing § 1552(h) to another section with almost identical language. Clemente pushed back on the government’s interpretation of both sections. He argued that there is no evidence that “discharge” is a term of art as the government claims and that the term’s true definition allows for a broader interpretation that would include modification of a narrative reason for discharge.
Elizabeth Speck argued for the United States. She argued that both the BCNR and the Court of Federal Claims upheld the correct standard in their decisions. She argued that the Board could change the narrative reason for discharge. Still, she continued, the Board cannot change a code to one related to a disability because the Navy’s regulations say the Board does not have the authority to change a medical code.
One of the judges questioned the logic of Speck’s interpretation, indicating that a disability actually might be a narrative reason for discharge. Speck responded by arguing that a disability is not a narrative reason for discharge because disability retirement is not a complete separation from the Armed Forces. She said that, without a complete separation, one is not considered discharged from the military.
Another judge then asked about 10 U.S.C. § 1552(h) and § 1553. Specifically, he asked what the two sections refer to because, he said, they must refer to two different things. Speck replied that analysis of discharge modification applications such as this one hinge upon whether the reason for the discharge led to the circumstances of the discharge. As an example, she explained, PTSD could mitigate a discharge for drunk driving or possession of a controlled substance if PTSD caused the offense.
The judge questioned her example, asking why it was any different from PTSD being the reason for Doyon’s behavior that led to his diagnosis of a personality disorder and then to his discharge. In response, Speck agreed Doyon is entitled to have this change reviewed, just not with the liberal consideration standard because disability or medical retirement is not a complete separation.
One of the judges took issue with the government’s position that medical retirement is not a ground for separation. Speck replied by again indicating that medical retirement is not a complete separation. She then moved on to argue that, in enacting § 1552(h), Congress was simply trying to minimize misconduct.
In rebuttal, Clemente noted that the government had not previously raised the argument that medical retirement is not a complete separation, though he said the distinction should not matter. He claimed the Board regularly grants modification for disability retirement.
A judge asked Clemente to walk him through what would happen next if Doyon’s records were changed to reflect his PTSD diagnosis. Clemente replied that the separation code would be changed to say he was discharged for “unfitness.” As a result, he continued, Doyon would enter disability retirement and be entitled to backpay.
Clemente concluded his rebuttal by asserting that, even without liberal consideration, Doyon should still receive relief because he has substantial evidence for his claim.
We will continue to monitor the case and report on any developments.