The Kurta and Hagel Memos are prominently explained in this incredibly important 2023 case.
If you were discharged without proper consideration by IDES or Integrated Disability Evaluation System, your PEB or MEB Physical or Medical Evaluation Boards, you may have been denied your pension.
For me, this is great reading. Enjoy and the link to the full opinion is at the bottom of this article, which is mostly quoted in the below excerpts.
Doyon v. United States
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.” After the BCNR denied his petition, Doyon brought suit in the Court of Federal Claims (Claims Court), seeking disability retirement payment for service-connected PTSD pursuant 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 reasoned that the “liberal consideration” standard does not apply 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 Department of Defense memorandum (Kurta Memo) require liberal consideration for such correction requests, the Claims Court erred in holding that the liberal consideration standard does not apply to Mr. Doyon’s petition.
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] far less understood than [it is] today.” J.A. 1943–44 ¶ 26(a), (b), (k). Evidence relevant to a PTSD-related petition may include “changes in behavior, . . . deterioration in work performance; inability of the individual to conform their behavior to the expectations of the military environment; substance abuse; episodes of depression, panic attacks, 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 consideration standard into the BCNR’s authorizing statute on December 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 requirement 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). Moreover, controlling DoD regulations at the time of Mr. Doyon’s discharge distinguished personality disorders, such as character and behavioral disorders, from physical disabilities, such as psychoses and psychoneuroses.
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). Moreover, controlling DoD regulations at the time of Mr. Doyon’s discharge distinguished personality disorders, such as character and behavioral disorders, from physical disabilities, such as psychoses and psychoneuroses (then 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 individual unsuitable rather than unfit)
The government argues that Mr. Doyon failed to demonstrate that § 1552(h), which was enacted after Mr. Doyon filed his application to the BCNR,
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 reasons other than misconduct. Appellee’s Br. 21. We disagree. 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-traumatic stress disorder or traumatic brain injury as supporting rationale, or as justification for priority consideration, and whose post-traumatic stress disorder 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 paragraph (1), a board established under subsection (a)(1) shall— (A) review medical evidence of the Secretary of Veterans Affairs or a civilian health care provider that is presented by the claimant; and Case: 21-2095 Document: 63 Page: 18 Filed: 01/25/2023 DOYON v. US 19 (B) review the claim with liberal consideration to the claimant that post-traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances resulting in the discharge or dismissal 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 dismissal is based in whole or in part on matters relating to posttraumatic 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) “potentially 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).
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 underlying 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 determines that PTSD, rather than a personality disorder, was the basis of his discharge from the Navy, he is automatically entitled to a new separation code reflecting unfitness 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, arguing 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 necessary 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.
Clearly important to this decision was 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 “warrant[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
21-2095.OPINION.1-25-2023_2069238.pdf (uscourts.gov)
