The Federal Circuit recently issued its opinion in Doyon v. United States, a case we have been following because it attracted amicus briefs in favor of Doyon. In the case, Doyon appealed a judgment of the Court of Federal Claims upholding a decision by the Board for the Correction of Naval Records to deny an application to correct discharge records. In an opinion authored by Judge Chen and joined by Judges Newman and Linn, however, the Federal Circuit vacated the judgment of the Court of Federal Claims and remanded the case with instructions. This is our opinion summary.

Judge Chen presented the facts of the case:

Congress authorized the Secretaries of military departments, acting through such administrative boards for each department, to “correct any military record” when “necessary to correct an error or remove an injustice.” 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 errors in his military records may petition the BCNR for correction of his military record.

[O]n August 25, 2017, Undersecretary of Defense Anthony Kurta issued another memorandum, titled “Clarifying 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 uniformity amongst the review boards.”

Mr. Doyon served in the Navy from March 17, 1966, to November 21, 1968 . . . . On July 29, 1967, a rocket misfired on the deck of the U.S.S. Forrestal, causing an explosion and fire that resulted in more than 130 deaths and 160 injuries. J.A. 1001–02 ¶ 2; J.A. 1251–55. From the deck of the Intrepid, Mr. Doyon witnessed the immediate aftermath of the explosion and fire. Id. On October 23, 1967, four members of the Intrepid went Absent Without Leave (AWOL). J.A. 1007–08 ¶ 24; J.A. 1255. Mr. Doyon alleges that because he was friendly with two of the deserters, he was verbally and physically harassed and threatened by his shipmates.

On November 21, 1968, Mr. Doyon was discharged from the Navy. J.A. 1134. The “Characterization of Service” field on Mr. Doyon’s DD-214 form1 characterized his discharge as “Honorable,” and the “Reason and Authority” field on his DD-214 form contained a separation code indicating that he was discharged for unsuitability due to a personality disorder.

In September 2017, Mr. Doyon sought correction of his military records with the BCNR. J.A. 1068–70. Specifically, Mr. Doyon requested that the BCNR correct the separation 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 psychoneuroses (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 same). Mr. Doyon also argued that his request was entitled to liberal consideration pursuant to 10 U.S.C. § 1552. J.A. 1074.

On November 20, 2018, the BCNR denied Mr. Doyon’s petition. J.A. 1049–51. The BCNR “substantially concurred” with the advisory opinion, concluding that the evidentiary record did not warrant a change to Mr. Doyon’s military record.

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.

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 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.

After providing this background, Judge Chen first addressed “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).” Regarding the Kurta Memo, Judge Chen agreed “with the Claims Court that 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.'” He disagreed, however, “with the Claims Court’s finding that Mr. Doyon is not challenging the reason for his discharge.” Instead, Judge Chen reasoned, Mr. Doyon “challenged his narrative reason for discharge, and such challenge is entitled to liberal consideration under the Kurta Memo.”

Judge Chen then agreed with Mr. Doyon’s argument 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-connected PTSD ‘contributed to the circumstances resulting in [his] discharge.'” Moreover, he disagreed with the government’s argument that “Mr. Doyon failed to demonstrate that § 1552(h), which was enacted after Mr. Doyon filed his application to the BCNR, retroactively applied to his application.” Judge Chen went on to reason that three factors used to determine whether a statue would have retroactive effect weigh in favor of Mr. Doyon. In addition, he also rejected the government’s argument “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 reasons other than misconduct.”

In short, in this case, the Federal Circuit held that the BCNR erred by not reviewing Mr. Doyon’s application to correct his DD-214 form with liberal consideration. As a result of its analysis, the Federal Circuit vacated the underlying judgment and remanded the case with instructions to the BCNR to give “liberal consideration” to Doyon’s application seeking discharge relief related to his service-connected PTSD.