Earlier this month the Federal Circuit issued its opinion in Bee v. United States, a case involving correction of military records that we have been following because it attracted two amicus briefs. In this case, William Bee appealed the denial of his request to have his military records reflect medical retirement rather than voluntary separation. In an opinion authored by Judge Reyna and joined by Judges Clevenger and Chen, the court vacated the judgment and remanded the case. This is our summary of the opinion.
Judge Reyna began by outlining the factual and procedural background:
During his third deployment, Mr. Bee suffered a major head injury. Following this deployment, he was diagnosed with a ‘[p]otential [traumatic brain injury] with persistent symptoms.’ During his fourth and final deployment from December 2009–June 2010, Mr. Bee was wounded by explosions of multiple improvised explosive devices, which killed two fellow marines. After this deployment, in 2010, Mr. Bee was diagnosed with a traumatic brain injury (‘TBI’) and post-traumatic stress disorder (‘PTSD’).
In June 2010, Mr. Bee returned to the United States from Afghanistan and was placed on limited duty effective June 21, 2010. Around September 2010, Mr. Bee was removed from limited duty and subsequently promoted from sergeant to staff sergeant. . . .
In October 2012, Mr. Bee requested to separate early from the Marine Corps through the Voluntary Separation Program (‘VSP’).
On April 1, 2013, Mr. Bee was discharged pursuant to his VSP request. On Mr. Bee’s discharge certification, formally referred to as a ‘DD Form 214,’ his discharge was noted as April 1, 2013. In block 28 of this form, titled ‘Narrative Reason for Separation,’ the Navy noted ‘FORCE SHAPING-VSP,’ referring to the VSP Mr. Bee entered into and which resulted in his voluntary discharge. Notably, prior to discharge, Mr. Bee was never afforded review by a medical review board to determine whether Mr. Bee’s PTSD and TBI rendered him unfit for duty and entitled to a medical disability retirement.
In April 2013, after his discharge, Mr. Bee applied for disability benefits from the U.S. Department of Veterans Affairs (‘VA’). On October 10, 2013, the VA issued a letter of its proposed VA Rating Decision, noting that Mr. Bee had a TBI and PTSD, that his injuries were ‘service connect[ed],’ and that each condition was rated at 70 percent disability. He was rated for other conditions and received an overall disability rating of 100 percent.
In April 2018, Mr. Bee submitted an application to the Board for Correction of Naval Records (‘BCNR’) requesting a change in the narrative reason for separation noted on his April 1, 2013 DD Form 214 from Force-Shaping VSP to medical disability retirement for his PTSD and TBI. Mr. Bee submitted a brief in support of his application, arguing that ‘he should have qualified for disability retirement at the time of his discharge on April 1, 2013,’ due to his PTSD and TBI, that were more than 30 percent disabling.
In 2019, the BCNR denied Mr. Bee’s petition in a short three-page opinion, concluding that the evidence showed that Mr. Bee was fit for service at the time of discharge and thus not entitled to a medical disability retirement.
On October 6, 2021, Mr. Bee filed a complaint before the U.S. Court of Federal Claims (‘Federal Claims Court’), seeking an award of disability retirement pay and challenging the BCNR 2019 Decision. The challenge resulted in a voluntary remand so that the BCNR could reconsider its decision.
On remand, in a more fulsome decision, the BCNR again denied Mr. Bee’s petition. The BCNR concluded that the preponderance of the evidence showed that at the time of his discharge, Mr. Bee was fit for duty and thus was not entitled to a medical disability retirement. The BCNR did not explicitly state in its decision whether it was affording ‘liberal consideration,’ a principle at issue in this appeal, to Mr. Bee’s petition.
Reaching the current dispute, Judge Reyna first addressed the government’s argument “that Mr. Bee’s complaint filed at the Federal Claims Court was time-barred under the six-year statute of limitations.” Judge Reyna disagreed. Instead, he agreed with Mr. Bee’s argument that, “because he did not request or receive review by a medical review board prior to discharge, his claim did not accrue until the BCNR 2019 Decision.” The government, Judge Reyna explained, argued that the complaint is time barred under an exception for “‘circumstances under which the service member’s failure to request a hearing board prior to discharge has been held to have the same effect as a refusal by the service to provide board review.'” Judge Reyna, however, explained “[t]hese ‘circumstances’ are limited to a scenario where the servicemember had ‘either actual or constructive knowledge that he was entitled to disability benefits’ prior to discharge.”
Next, Judge Reyna addressed Mr. Bee’s argument “that the BCNR legally erred under [a relevant disability regulation] when it failed to relate his disabilities of PTSD and TBI to the duties of his ‘office, grade, rank, or rating.'” According to Judge Reyna, “the BCNR ran afoul of [this regulation] by failing to explicitly or implicitly identify any duties ‘reasonably . . . expected’ of an Infantry Unit Leader.” The BCNR, he explained, claimed “that it need not [identify these duties] . . . because ‘[t]he burden was on [Mr. Bee].'” Judge Reyna found the BCNR’s reasoning to be “legally erroneous.” He said “Mr. Bee’s burden to show he was unfit for duty in order to receive relief from the BCNR does not relieve the BCNR of properly applying the legal standard for fitness determinations under” the relevant regulation.
Judge Reyna then addressed Mr. Bee alternative argument that the BCNR erred “when it failed to conduct the proper analysis for considering whether Mr. Bee could reasonably perform his duties.” Judge Reyna found “the BCNR’s focus on a subset of duties, without any finding that these duties are the equivalent of the duties reasonably expected of an Infantry Unit Leader,” to be “legally erroneous.” He disagreed with the government’s argument that any error was harmless.
Finally, Judge Reyna turned to Mr. Bee’s next argument “that the BCNR erred . . . by failing to give ‘liberal consideration’ to his petition.” Rejecting the government’s position, Judge Reyna said it “effectively asks this court to rewrite [the relevant statute] to except fitness determinations from liberal consideration.” Judge Reyna determined “there is no statement, explicit or implied, indicating that the BCNR applied a lenient evidentiary standard.”
As a result of Judge Reyna’s analysis, the panel vacated the judgment and remanded the case.