[00:00:00] Speaker 02:
The next argued case is number 21, 2095, Dayan against the United States.

[00:00:07] Speaker 02:
Mr. Kalanidze, when you're ready.

[00:00:12] Speaker 01:
May I please record Michael Kalanidze for Mr. Doyan?

[00:00:15] Speaker 01:
Mr. Doyan's combat induced PTSD is well documented and it is not disputed by the government.

[00:00:23] Speaker 01:
But in 1968, the Navy misdiagnosed him.

[00:00:26] Speaker 01:
with a personality disorder, which was incorrect even under the standards at the time, and discharged him on that basis.

[00:00:36] Speaker 01:
What happened to Mr. Doyan has happened to a number of other veterans.

[00:00:39] Speaker 01:
And that is why over the past decade or so, the Department of Defense and Congress have crafted a solution to this problem, which is to make correction boards apply liberal consideration to veterans like Mr. Doyan who were discharged

[00:00:54] Speaker 01:
They have claims for PTSD related to discharge or discharge on some other basis.

[00:01:00] Speaker 01:
And the decisions below either ignored or dismissed that solution that was crafted by Congress and by the Department of Defense.

[00:01:09] Speaker 01:
And for that reason, they should be reversed.

[00:01:14] Speaker 04:
Is it your understanding that the CURTA memo expanded

[00:01:20] Speaker 04:
the rights or opportunities for veterans with PTSD compared to the Hegel memo?

[00:01:28] Speaker 04:
And is it your understanding that 1552H is essentially a complete reflection of the Curda memo, essentially a codification of it?

[00:01:39] Speaker 04:
Or are there differences between 1552H and the Curda memo?

[00:01:45] Speaker 01:
To your second question, I think that's less clear.

[00:01:49] Speaker 01:
The credit memo has a lot of very specific details on how to apply liberal consideration that aren't provided in the statute.

[00:01:55] Speaker 01:
The statute is very broad.

[00:01:58] Speaker 01:
It says that liberal consideration applies to a claim under this section, that's 1552, for review of a discharge.

[00:02:06] Speaker 01:
And so this board that Mr. Doyle was before, the VCNR, corrects a variety of different records.

[00:02:13] Speaker 01:
And one of them is the discharge record.

[00:02:15] Speaker 01:
in the DD214 form.

[00:02:19] Speaker 01:
And on that form, there's a series of sections.

[00:02:21] Speaker 01:
This is appendix 1102.

[00:02:23] Speaker 04:
I think it's instructive even to... Before you get there, I want to also ask about the applicability of 1552H to the facts here.

[00:02:33] Speaker 04:
As I understand it, 1552H was enacted after Mr. Doyan's petition was filed at the BCNR.

[00:02:42] Speaker 04:
So generally, there's a presumption that statutes are applicable prospectively, not retroactively, unless Congress states otherwise.

[00:02:55] Speaker 04:
Would that apply here?

[00:02:58] Speaker 01:
There's no retroactivity problem here for a couple of reasons.

[00:03:00] Speaker 01:
And first, I would just say that the government hasn't actually made this argument.

[00:03:05] Speaker 01:
It has referenced retroactivity in a sentence, but never even argued that there's a retroactivity problem.

[00:03:10] Speaker 04:
Something we have to wonder about.

[00:03:14] Speaker 01:
Definitely.

[00:03:14] Speaker 01:
And on that front, I would say that this court's decision in Rodriguez's case explains when a statute has a retroactive effect.

[00:03:26] Speaker 01:
And so just backing up a little bit, in terms of retroactivity, there's an initial question about whether applying a statute would have a retroactive effect in a particular case.

[00:03:36] Speaker 01:
And then if it does, there's the secondary question of, is that permissible?

[00:03:40] Speaker 01:
Did Congress authorize that?

[00:03:42] Speaker 01:
And there's where the presumption against retroactivity occurs.

[00:03:45] Speaker 01:
You don't presume that Congress intended a statute to apply retroactively.

[00:03:50] Speaker 01:
unless Congress expressly said so.

[00:03:52] Speaker 01:
And then a third level of retroactivity analysis would involve there's a constitutional challenge to the statute or something like that under the exposed factor clause.

[00:04:00] Speaker 01:
In this case, we're at step one because there is no retroactive effect.

[00:04:05] Speaker 01:
And that's because the 1552H changed the requirements for the BCNR and how it was supposed to dispose of Mr. Doyan's case.

[00:04:16] Speaker 01:
And that had not yet happened.

[00:04:18] Speaker 01:
And so under the Rodriguez case, this court explained how we understand when a statute would have a retroactive effect.

[00:04:25] Speaker 01:
And it says if the event is already completed before the statute is enacted, and here the event, the party that the 1552H applied to is the BCNR, and it had not yet rendered its decision.

[00:04:42] Speaker 01:
So we don't think that there's any retroactivity problem or that the government raises any argument along those lines.

[00:04:48] Speaker 05:
I know the government argues that the Curda memo was a clarification of the Hegel memo.

[00:04:59] Speaker 05:
But the Curda memo, unless I missed something, doesn't reference the Hegel memo.

[00:05:06] Speaker 05:
And quite the contrary, references a December 2016 department announcement of

[00:05:15] Speaker 05:
renewed efforts to ensure that veterans were aware of the opportunity to have their discharges and military records reviewed.

[00:05:25] Speaker 05:
I looked at that December 2016 announcement, and that's just a very general announcement.

[00:05:34] Speaker 05:
It doesn't mention the Hegel memo.

[00:05:37] Speaker 05:
A very general announcement talking about how the Department of Defense is going to take another look at all of these

[00:05:46] Speaker 05:
records to see whether the discharges in military records properly accounted for PTSD.

[00:05:58] Speaker 05:
So I get the impression that the CURTA memo is not necessarily constrained in any way by the Hegel memo.

[00:06:08] Speaker 01:
So I think that's... I agree that the CURTA memo is not constrained at all by the Hegel memo.

[00:06:16] Speaker 01:
even under the government's own view, which is that it was clarifying the Hegel memo.

[00:06:20] Speaker 01:
The government concedes on page 31 of its brief that it expanded the Hegel memo, as it has to, because the Hegel memo was focused on PTSD.

[00:06:30] Speaker 01:
The Curda memo also includes traumatic brain injury.

[00:06:33] Speaker 01:
It also includes military sexual trauma.

[00:06:36] Speaker 01:
So there's a number of ways where it unambiguously expanded the Curda memo.

[00:06:40] Speaker 04:
And you agree that if all you had was the Hegel memo, then you can't win.

[00:06:47] Speaker 04:
Because the Hegel memo is specifically about upgrading discharge status.

[00:06:54] Speaker 01:
We agree that the Hegel memo focuses on characterization of service and upgrades the characterization of service.

[00:07:01] Speaker 01:
And that's why we're relying mostly on the CURTA memorandum and then separately on the statute, 1552H, which are two separate sources of authority that were not followed below.

[00:07:15] Speaker 01:
On the current memo, I think two really important parts that the government has not really been able to fully respond to.

[00:07:24] Speaker 01:
This is appendix 1943, paragraphs 20 and 24.

[00:07:30] Speaker 01:
And there, the current memo explains very expressly what it applies to.

[00:07:40] Speaker 01:
And it explains in paragraph 20 what it means by the phrase discharge.

[00:07:45] Speaker 01:
The government argues that the Code of Memo only applies to upgrades and characterization of service.

[00:07:52] Speaker 01:
And as this Court knows, characterization of service is a term of arc about whether one's service was honorable or dishonorable or several other categories.

[00:08:01] Speaker 01:
But the Code of Memo doesn't say that.

[00:08:02] Speaker 01:
It defines discharge as including not just characterization of service, that term of arc, but also the narrative reason, the separation code, and the realignment code.

[00:08:14] Speaker 01:
And then if there were any doubt, in paragraph 24, the current memo says, these guidance documents are not limited to under other than honorable condition discharge characterizations, but rather apply to any petition seeking discharge relief, including.

[00:08:27] Speaker 01:
And then it gives a list of items that it includes.

[00:08:32] Speaker 01:
Now, this guidance is directed to the board

[00:08:36] Speaker 01:
the BCNR, which is the Corrections Board, and it corrects records in a variety of different kinds of records.

[00:08:42] Speaker 01:
So there's records about promotions, records about metals and accommodations, and then there's a discharge record, and that's Appendix 11.02, the DD.214.

[00:08:54] Speaker 01:
And on that form, there's a discharge section and a series of boxes that correlate exactly with what the Curda memo is talking about

[00:09:06] Speaker 01:
in paragraph 24.

[00:09:07] Speaker 04:
So this is the form, DDR214, that you want corrected.

[00:09:12] Speaker 01:
The DD214 is the form.

[00:09:15] Speaker 04:
DD214.

[00:09:18] Speaker 04:
And is it just this one field about reasons and authority?

[00:09:22] Speaker 04:
Yes.

[00:09:24] Speaker 04:
That's the only thing you want corrected.

[00:09:25] Speaker 01:
That is the only way that Mr. Doyan can attain the relief that he's seeking, is to go to this board and to ask it to change that box to a different separation code.

[00:09:36] Speaker 01:
And the CURTA memo in those paragraphs 20 and 24 expressly says that it applies to the narrative reason, which is the box that we're referring to.

[00:09:47] Speaker 01:
And it also says it applies to the separation code.

[00:09:50] Speaker 01:
And what we're asking for is a change of the separation code.

[00:09:53] Speaker 01:
Also in the title of the CURTA memo, it says that, and this is paragraph one of its instructions, it says that it applies to requests by veterans for modification of their discharges.

[00:10:06] Speaker 01:
due in whole or in part to PTSD.

[00:10:09] Speaker 01:
And that's exactly what Mr. Doyan is seeking.

[00:10:11] Speaker 01:
He's requesting a modification of his discharge due to PTSD.

[00:10:16] Speaker 01:
And so the board erred by not giving him liberal consideration.

[00:10:20] Speaker 04:
Is there any legislative history suggesting that 1552H was an attempt to codify Curda memo?

[00:10:27] Speaker 01:
The legislative history on this is not

[00:10:31] Speaker 01:
particularly instructive because these amendments that happened over the course of about a decade happened through the National Defense Authorization Act bills.

[00:10:40] Speaker 01:
So there are these massive bills and these were rider provisions in them.

[00:10:45] Speaker 01:
And so the government cites some legislative history, which predates what we're discussing here.

[00:10:52] Speaker 01:
And it's legislative history falling on the heels of the Hegel amendment, which is focusing more on characterization of service.

[00:10:58] Speaker 01:
But you're talking about 1553, right?

[00:11:00] Speaker 01:
Well, yeah.

[00:11:03] Speaker 01:
So the government's legislative history citations involve representatives from the government speaking about a variety of different boards at a variety of different times.

[00:11:11] Speaker 01:
But on the specific question with the legislative history of 1552H, we cite in our brief one example where this was leading right up to the adoption of 1552H in liberal consideration, where

[00:11:25] Speaker 01:
in a hearing, the member of Congress asked the corrections boards how they apply liberal consideration.

[00:11:32] Speaker 01:
And they gave an example where they increased a disability rating because of liberal consideration.

[00:11:38] Speaker 01:
And so also, if you look at this legislative history, which we're more than happy for the court to do, we don't think that's necessary given the plain text of 1552.

[00:11:46] Speaker 01:
If the court were to look at it and actually look at the time period leading up to 1552,

[00:11:54] Speaker 04:
none of its inconsistent with our position uh... before you run out of time i want to talk to you about fifteen fifty three which uses basically identical language to the left language in fifteen fifty two each

[00:12:08] Speaker 04:
And just as a straightforward, plain language argument that you have for 1552H, I understand it.

[00:12:18] Speaker 04:
And I understand why it seems broad enough that it would apply to Mr. Doyan's case.

[00:12:24] Speaker 04:
But the same language as in 1553, which is really about just the discharge review board,

[00:12:30] Speaker 04:
only and if we were to conclude that all that the discharge review board can do under 1553 using the exact same liberal consideration language in 1552H is to change discharge status

[00:12:50] Speaker 04:
then why wouldn't we use the common statutory interpretation canon that identical language in two different provisions ought to be treated the exact same way?

[00:13:00] Speaker 04:
And so therefore, resulting in 1552H likewise being constrained to just modifications of discharge status.

[00:13:10] Speaker 01:
A few points on that.

[00:13:11] Speaker 01:
One is that, as I understand the government's argument about 1553, my understanding is that they're saying

[00:13:18] Speaker 01:
that the phrase, discharge or dismissal, is a term of art.

[00:13:22] Speaker 01:
And because the DRBs, the boards under 1553, are largely limited to changes in characterization of service, that's not even what they're limited to.

[00:13:31] Speaker 01:
They can also change separation code under the narrative of reason, for instance, and they did that after the repeal of Don't Ask, Don't Tell.

[00:13:38] Speaker 01:
So even that board isn't limited just to what the government's arguing, which is upgrades in characterization of service.

[00:13:45] Speaker 01:
But my understanding is

[00:13:48] Speaker 01:
Their basic argument is this is a term of arc from this other statute, but they cite no source at all interpreting discharge or dismissal as a term of arc, meaning only upgrades and characterization of service.

[00:14:01] Speaker 01:
In fact, the DRB regulations, the regulations for 1553 expressly define discharge and dismissal.

[00:14:11] Speaker 01:
And this is 32 CFR 724.107.

[00:14:16] Speaker 01:
The government cites this on page 24 of their brief.

[00:14:20] Speaker 01:
They don't actually quote it.

[00:14:21] Speaker 01:
They just say, defining discharge.

[00:14:23] Speaker 01:
But if you look at that and you read the definition, and excuse me for reading a little bit of length here, but it says, by reason of usage, the term discharge is predominantly applicable to the separation of enlisted personnel for any reason and the term dismissal to the separation of officers as a result of secretarial or general court martial action.

[00:14:44] Speaker 01:
In the context of the mission of the NDRB, the term discharge used here shall, for purpose of ease of expression, include any complete separation from the naval service.

[00:14:54] Speaker 01:
Other than that pursuant to the sentence of General Court Marshall, the term discharge also includes the type of discharge and the reason or basis for that discharge.

[00:15:03] Speaker 04:
You've done a very thorough job of resisting the premise of my question, but putting that to the side, what if we're still stuck with thinking that 1553 is for something more specific and limited than what the BCNR can do under 1552H in terms of it only updates or changes discharge status.

[00:15:28] Speaker 04:
then is it still possible to read the liberal consideration provision in 1552H differently, more broadly in terms of what kinds of remedies the BCNR can provide under that liberal consideration privilege in 1552H?

[00:15:44] Speaker 01:
So it's definitely possible to read them separately, to read them differently, and it's because liberal consideration is the standard of review.

[00:15:54] Speaker 01:
And it's completely normal and understandable that different courts with different jurisdictions would apply a standard review to different cases that they're allowed to hear.

[00:16:03] Speaker 01:
And the BCNR in 1552 H1 says that it applies to any claim under this section, which is 1552.

[00:16:09] Speaker 01:
In 1552, that BCNR board can hear disability retirement claims.

[00:16:14] Speaker 01:
But the DRB can't.

[00:16:16] Speaker 01:
And that's just because of regulations that have been prescribed by the secretary pursuant to the secretary's general authority to prescribe regulations for the DRB's jurisdiction.

[00:16:25] Speaker 01:
That is not an interpretation of the meaning of discharge or dismissal.

[00:16:29] Speaker 01:
So there's, I think, a number of reasons why there's no inconsistency at all between

[00:16:36] Speaker 01:
liberal consideration being that standard of review being applied to the applications that the BCNR can hear under 1552 on the one hand, versus the more limited cases, that same standard being applied by the DRB, the more limited cases that they hear within their jurisdiction.

[00:16:53] Speaker 01:
If I could reserve my time for that.

[00:16:58] Speaker 02:
Thank you.

[00:16:59] Speaker 02:
We'll save you a little time.

[00:17:02] Speaker 00:
Ms.

[00:17:02] Speaker 00:
Speck.

[00:17:03] Speaker 00:
Good morning, Your Honor.

[00:17:04] Speaker 00:
Elizabeth Speck for the United States.

[00:17:05] Speaker 00:
May it please the court?

[00:17:07] Speaker 00:
The court should affirm the decision of the Navy Corrections Board and the Court of Federal Claims.

[00:17:14] Speaker 00:
And there are several reasons.

[00:17:15] Speaker 00:
First of all, both the trial court and the board applied the correct standard.

[00:17:20] Speaker 00:
The liberal consideration standard does not apply to questions regarding fitness for duty.

[00:17:27] Speaker 00:
And I wanted to first address the idea that a discharge does not

[00:17:32] Speaker 00:
is a term of art, that is our argument, and it does not relate to disability relief.

[00:17:38] Speaker 00:
In terms of what the Discharge Review Board can do, we don't disagree that they could change a narrative reason for the discharge or a re-enlistment code.

[00:17:52] Speaker 00:
The appendix talking about the changes to

[00:17:55] Speaker 00:
1550 the legislative history that cited Appendix 2232 which preceded the amendments to 1552H talked about the fact that discharge petitions could encompass that, could encompass a change in the narrative reason for the discharge or a change in the re-enlistment code.

[00:18:16] Speaker 00:
But the fact is the discharge review board does not have the ability to change a

[00:18:22] Speaker 00:
does not have the ability to change a code to one related to a disability.

[00:18:28] Speaker 00:
And that is in a few places that we cited in our brief, specifically the Navy's regulation, which is 32 CFR 724.205A9, says that the Naval Discharge Review Board does not have authority to

[00:18:45] Speaker 00:
change a code to a medical code.

[00:18:48] Speaker 00:
And we also cited gay versus the United States.

[00:18:51] Speaker 04:
How is that consistent though with your earlier statement that the discharge review board can change the narrative reason in a record?

[00:19:02] Speaker 00:
There may be narrative reasons, for example, and these were cited in the list.

[00:19:07] Speaker 04:
Narrative records would include a modification to conclude there was a disability was the reason for separation.

[00:19:20] Speaker 00:
First of all, Your Honor, we wanted to clarify that a disability retirement is not a complete separation from the armed services.

[00:19:28] Speaker 00:
So a disability retirement

[00:19:30] Speaker 00:
And even looking at the definition that is cited by the appellant in terms of a complete separation, when someone is retired for disability, they are placed on a permanent disability list.

[00:19:43] Speaker 00:
And I think they would not dispute here, Mr. Doyan is looking for a disability retirement payment.

[00:19:49] Speaker 00:
Under 10 USC 1401, they still get paid.

[00:19:52] Speaker 00:
Under 10 USC 802, they are subject to court martial.

[00:19:56] Speaker 00:
The fact is, under the codes, for example, looking at the Joint Appendix and some of the examples that were cited by the Navy at 2271 through 2273, they talk about the fact that

[00:20:15] Speaker 00:
you were given a code that was related to substance abuse, or you were given a code related to drunk driving.

[00:20:21] Speaker 00:
And looking at PTSD, perhaps you would maybe change the upgrade.

[00:20:26] Speaker 00:
You would say you're entitled to a general discharge, or perhaps there would be a different reason for separation.

[00:20:33] Speaker 00:
But it simply doesn't go into finding a medical reason for the separation.

[00:20:42] Speaker 00:
It doesn't go into, for example, just looking at this game.

[00:20:45] Speaker 04:
It doesn't go into, are you talking about the statute or what are you referring to?

[00:20:49] Speaker 00:
The statute looking at review of a discharge or dismissal and looking to what liberal consideration applies to.

[00:20:56] Speaker 00:
It's simply not considered discharge relief.

[00:20:59] Speaker 00:
The disability or the medical evaluation system is considered a separate process, for example, from what the discharge review boards do and what is being examined under Section 1552H and 1553.

[00:21:14] Speaker 04:
What we have here is the BCNR, not the discharge review board, right?

[00:21:20] Speaker 00:
Yes, Your Honor, but it is identical language in the statute.

[00:21:23] Speaker 00:
So looking at the statute at 1552H, it typically caveats that section of H1 in terms of review of a discharge or dismissal, which is exactly the language that is used in 1553D3.

[00:21:40] Speaker 00:
And the simple fact is these two boards do have

[00:21:44] Speaker 00:
that they do look at discharge or they do look at the same types of discharge claims.

[00:21:50] Speaker 00:
So you would be for up to 15 years, you would go to the discharge review board.

[00:21:55] Speaker 00:
After that, those same claims could be looked at or could be reviewed by the Naval Corrections Board.

[00:22:02] Speaker 00:
Go ahead.

[00:22:05] Speaker 02:
Quick question.

[00:22:06] Speaker 02:
Are you saying that the statutory authorization to the review boards excludes

[00:22:12] Speaker 02:
Correction of this sort of error when there's a, let's assume that there is a clear or at least prima facie error, that correction of such errors are prohibited by statute.

[00:22:29] Speaker 02:
Yes, Your Honor, for the discharge review board.

[00:22:32] Speaker 02:
It doesn't say that in the statute, as I recall.

[00:22:35] Speaker 00:
Well, Your Honor, the case, and this is a court of federal claims case, not a federal circuit, but it interpreted 93 Fed claims, 681, 687.

[00:22:43] Speaker 02:
You're saying it's an interpretation, not in the statute.

[00:22:48] Speaker 00:
Yes, Your Honor, that was the interpretation of the statute interpreting discharge.

[00:22:52] Speaker 00:
We'd also note the Department of Defense instruction, which specifically talks about

[00:22:56] Speaker 00:
The role of the discharge review wards, that's 1332.28 enclosure four, talks about their authority in terms of characterization of honorable service.

[00:23:07] Speaker 00:
The Navy's regulation, we also cited the legislative history from the 1958 statute when it was first enacted, looking at discharge or dismissals.

[00:23:20] Speaker 00:
I'd note, even in a case cited by the appellants, LaFrancoise versus Mabus, this wasn't for the court.

[00:23:28] Speaker 00:
This is in the facts, not in the court's analysis.

[00:23:31] Speaker 00:
But there, the discharge review board explained that when reviewing a discharge, and this is at 910 Federal Supplement 2D12, and this is page 15,

[00:23:41] Speaker 00:
When reviewing a discharge, the board does consider the extent to which a medical problem diagnosed or undiagnosed while on active duty might affect an applicant's performance and ability to conform to the military standards of conduct and discipline.

[00:23:55] Speaker 02:
Are you reading from the statute?

[00:23:57] Speaker 00:
No, Your Honor.

[00:23:57] Speaker 00:
I'm reading from a case.

[00:23:58] Speaker 00:
That was from the law.

[00:24:00] Speaker 04:
I guess I'm still confused by this argument of yours, because you're really focusing on the Discharge Review Board's work in authority.

[00:24:09] Speaker 04:
And we're here looking at the Military Records Correction Board.

[00:24:14] Speaker 04:
And at bottom, we have to figure out what is 52H1 means.

[00:24:21] Speaker 04:
And when it says,

[00:24:24] Speaker 04:
review the claim with liberal consideration to the claimant that PTSD potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the claimant's discharge or dismissal.

[00:24:40] Speaker 04:
There seem to be two different things that you can consider.

[00:24:44] Speaker 04:
One is the original characterization of the discharge, which, as I take it, is what you think of as discharge honorable or less than honorable.

[00:24:56] Speaker 04:
There's general or something like that.

[00:24:58] Speaker 04:
But then there's the other angle, which is potentially contributed to the circumstances resulting in the discharge.

[00:25:05] Speaker 04:
And that seems to be

[00:25:07] Speaker 04:
the facts of what we have here with Mr. Doyant.

[00:25:10] Speaker 04:
So I guess what I'm wondering is, why do we have to read this statute as relegated to only discharge status modifications when the statute is plainly talking about two different thoughts?

[00:25:25] Speaker 00:
Your Honor, it's talking about review of a discharge or dismissal.

[00:25:29] Speaker 00:
And as we've explained, discharge is understood by the military service not to encompass disability

[00:25:37] Speaker 04:
claims for a medical... Can you just explain to me what these two different provisions inside of the liberal considerations section refers to?

[00:25:49] Speaker 04:
Contributed to the circumstances resulting in the discharge.

[00:25:52] Speaker 04:
What does that mean?

[00:25:53] Speaker 04:
Because it has to mean something different than, quote, the original characterization of the claimant's discharge.

[00:25:59] Speaker 00:
Yes, Your Honor.

[00:26:00] Speaker 00:
I think the circumstances resulting in the discharge, for example, as the billboard looked in the examples that we cited in 2271, for example, in the first example, or let me actually go to the second one, they were looking at he received a punishment for driving under the influence.

[00:26:18] Speaker 00:
or they may have received having a controlled substance.

[00:26:22] Speaker 00:
And so you're looking at whether that contributed to circumstances that resulted in a less than honorable discharge.

[00:26:32] Speaker 04:
Well, here, the provision is PTSD.

[00:26:36] Speaker 04:
It's not drunk driving.

[00:26:37] Speaker 04:
Whether PTSD contributed to the circumstances resulting in the discharge.

[00:26:43] Speaker 00:
Yes, Your Honor.

[00:26:43] Speaker 00:
But under those examples, for example, they eventually did change

[00:26:49] Speaker 00:
They did upgrade the discharge because they looked at the fact that he actually did have PTSD.

[00:26:54] Speaker 00:
So the fact was at the time we discharged you, we thought it was due to drunk driving or having a controlled substance or perhaps you committed some kind of misconduct.

[00:27:04] Speaker 00:
and looking at the fact that now we know you have a diagnosis of PTSD, then that would perhaps mitigate the misconduct or what you were removed for.

[00:27:16] Speaker 04:
And that's exactly what the... How is that different from, oh, we originally thought you had a personality disorder?

[00:27:23] Speaker 04:
But now, looking backwards, when we understand better that you in fact had PTSD, that that was actually a contributing factor to your discharge and your behavior.

[00:27:37] Speaker 00:
Your Honor, they would certainly be entitled to have that reviewed by the Corrections Board.

[00:27:41] Speaker 00:
It would just not be with liberal consideration.

[00:27:44] Speaker 00:
The liberal consideration standard

[00:27:46] Speaker 00:
was intended to be applied in looking at a discharge review.

[00:27:51] Speaker 00:
The discharge is complete separation.

[00:27:55] Speaker 00:
Here, looking at a disability retirement would not be complete separation.

[00:28:00] Speaker 00:
The discharge process is distinct from the claim for disability reviews.

[00:28:09] Speaker 00:
in terms of what liberal consideration was doing.

[00:28:11] Speaker 04:
Does medical retirement lead to a discharge and separation?

[00:28:16] Speaker 00:
It's not considered a complete separation because they are placed on a permanent disability list.

[00:28:24] Speaker 00:
They are still subject to court martial under 10 USC section 802 and under 10 USC 1401 they would still get paid.

[00:28:33] Speaker 00:
They are not considered, if they get a disability retirement, they are not considered a complete separation.

[00:28:38] Speaker 04:
I can't remember.

[00:28:39] Speaker 04:
Did this come up in the red brief?

[00:28:41] Speaker 04:
I mean, it certainly didn't come up in the claims court's decision.

[00:28:45] Speaker 00:
No, the claims court did not discuss, the claims court decision did not discuss the statute.

[00:28:50] Speaker 00:
We did not specifically discuss 802 or 1401.

[00:28:54] Speaker 00:
We took issue with the fact that this was not a complete separation.

[00:28:58] Speaker 00:
But I think the fact, I don't think Mr. Doyan's counsel would dispute that he is looking to receive a disability retirement payment.

[00:29:05] Speaker 00:
And again, that would just go to the fact that there's not a complete separation.

[00:29:09] Speaker 00:
And we're happy to provide these citations to the court if you would like them in a 28-J letter as well.

[00:29:14] Speaker 04:
I suppose we could just conclude that 1552H

[00:29:21] Speaker 04:
applies or can apply to this situation or any situation where it appears somebody wants to modify the reasons for separation and then remand the case back to the claims court to determine whether medical retirement is actual grounds of separation is because it sounds like what I'm hearing for the first time, the government believes it is not a grounds for separation.

[00:29:51] Speaker 00:
It's not considered a complete separation.

[00:29:54] Speaker 00:
And I would also just point in terms of looking at the statute, the court to a couple of other provisions of 1552 and 1553A, which were enacted in 2019, which I think further support the fact that Congress understood this to be related to a certain subset of the liberal consideration standards to apply to a subset of cases that only to

[00:30:19] Speaker 00:
reviews of a discharge like the DRB would do.

[00:30:23] Speaker 00:
And that's 1552 I1, which states that the number of claims considered by such board during the calendar quarter they're required to make information available, including post-traumatic stress disorder or traumatic brain injury, is alleged to have contributed, whether in whole or part, to the original characterization of the discharge or release of the former member.

[00:30:48] Speaker 00:
Also looking at 1552B, it states that there, pardon, 1552-3, pardon me, 4B, if a board established under this section does not grant a request for an upgrade to the characterization of a discharge or dismissal, that declination may be considered under section 1553A of this title.

[00:31:10] Speaker 00:
And then section 1553A,

[00:31:13] Speaker 00:
talks about a review by the Secretary of Defense under 1552 and 1553 regarding the final review of a request for an upgrade in the characterization of a discharge or dismissal.

[00:31:26] Speaker 00:
So I think Congress understood that in enacting the amendments to 1552H,

[00:31:33] Speaker 00:
that it was simply making it consistent to what it had already enacted in 1553D and looking at these questions related to discharge upgrades and in mitigating the misconduct, which as we've emphasized in our brief is very much the focus of the CURTA memo, looking at whether the misconduct was in fact mitigated by a condition such as PTSD or traumatic brain injury.

[00:32:00] Speaker 00:
If the court has no further questions, I see my time has expired.

[00:32:06] Speaker 02:
Thank you, counsel.

[00:32:13] Speaker 04:
It's medical retirement, a complete separation.

[00:32:21] Speaker 01:
So as Your Honor noted, this is the first time we're hearing that argument.

[00:32:24] Speaker 01:
But even so,

[00:32:27] Speaker 01:
It shouldn't make any difference because the discharge review board, the BCNR, which is actually the board that Mr. Dillon was before, they review records and the record is the DD214.

[00:32:46] Speaker 01:
So whether it was a complete separation or not,

[00:32:53] Speaker 04:
it's that the board still authorized to bring this in and regularly does great disability retirement and this court also has overturned decisions of the board were refused to grant that i think that we if uh... mr dolan records were to reflect that he wasn't discharged for personality disorder but instead he uh... his status is changed to medical retirement due to disability due to ptsd

[00:33:22] Speaker 04:
Would he be technically discharged still, or would he not be discharged?

[00:33:30] Speaker 04:
Because it's not a complete separation.

[00:33:33] Speaker 01:
So I think my response would be it doesn't matter.

[00:33:37] Speaker 04:
The statute says discharge or dismissal, so it has to be one or the other.

[00:33:41] Speaker 01:
It says a claim under this section for review of a discharge.

[00:33:45] Speaker 01:
And it's a record, because the board only reviews records.

[00:33:50] Speaker 01:
That's all that it does.

[00:33:51] Speaker 01:
And the discharge record is the DD214.

[00:33:54] Speaker 01:
So whether or not, as we heard for the first time today, that he's technically fully completely separated or not, the way that he would still get that form of relief, disability retirement, is by a claim under this section.

[00:34:07] Speaker 01:
under 1552 for review of his discharge record.

[00:34:10] Speaker 01:
And that's the DD 214.

[00:34:11] Speaker 01:
The board would change that.

[00:34:13] Speaker 01:
And that's in the normal work of what the board does, is making those changes.

[00:34:18] Speaker 04:
So if you had this record updated, what would happen next?

[00:34:25] Speaker 04:
Would his status be converted to no longer discharged?

[00:34:32] Speaker 01:
So again, on that one, it's the first time that the government has argued that disability retirement is not a full separation from the military.

[00:34:41] Speaker 01:
But what the government has argued and what we've responded to is that just the fact that Mr. Doyan had PTSD and had this medical condition that was combat induced that caused his discharge, that doesn't necessarily mean he would receive disability retirement.

[00:35:01] Speaker 01:
But in this case, that's easy because he was discharged when the Navy determined that he could no longer serve capably.

[00:35:08] Speaker 04:
OK, so just walk me through what happens next with Mr. Doyne's claim.

[00:35:13] Speaker 04:
If he were to somehow successfully get the reasons for his discharge status changed or discharge state to reflect that he had PTSD, then how does he go about getting paid?

[00:35:30] Speaker 01:
The separation code, as your honor said, would be changed to show that unfitness, that he was discharged for unfitness, which is, and in his case, it would be a disability retirement.

[00:35:41] Speaker 01:
And what happens for Mr. Doyan is, at that point, he would be able to receive the back pay, and that's specifically authorized under 1552, when there's back pay due to a record correction that restores someone to a position that they were supposed to have been in.

[00:35:57] Speaker 04:
You'd have to file a claim somewhere else for the back pay?

[00:36:00] Speaker 01:
Well, if the government resisted paying, I think he would.

[00:36:05] Speaker 02:
But my understanding is- You're saying back pay back to the date of the discharge or separation or whatever we call it?

[00:36:15] Speaker 02:
How many years is that?

[00:36:17] Speaker 01:
So he received back pay to when he should have been medically discharged.

[00:36:22] Speaker 01:
And that will be subtracted from his VA benefits.

[00:36:26] Speaker 01:
So he will not be able to double recover or anything like that.

[00:36:29] Speaker 01:
But it would be 1968 to 2013.

[00:36:31] Speaker 01:
It would be 1968.

[00:36:32] Speaker 04:
45 years.

[00:36:33] Speaker 01:
Yes.

[00:36:35] Speaker 01:
And that's because Mr. Doyan served honorably, suffered PTSD, and then was wrongly discharged on a basis that has no support in the record.

[00:36:43] Speaker 01:
And I recognize the amount of time, but I would love to say a word about the facts, which is that Mr. Doyan had no hint of a personality disorder

[00:36:52] Speaker 01:
pre-enlistment, his enlistment check-in showed clean psychological evaluation.

[00:36:57] Speaker 01:
He witnessed horrific things in Vietnam and he served honorably.

[00:37:02] Speaker 01:
And then he was discharged on the basis of a personality disorder that has no support in the record.

[00:37:07] Speaker 01:
It doesn't match the diagnostic criteria at the time of a personality disorder.

[00:37:12] Speaker 02:
The reasons that they gave him... Just to be clear as to your position, you're saying that even though he did not request this relief,

[00:37:21] Speaker 02:
in 1968 or any other time in that era, because of the reclassification or whatever we call it, is entitled to a Reconstruction?

[00:37:34] Speaker 01:
Yes, he is definitely entitled to that.

[00:37:36] Speaker 01:
And that's what this board, the BCNR, does on a regular basis, is it'll correct these records looking backwards.

[00:37:43] Speaker 01:
That was the purpose of the Hegel memo.

[00:37:45] Speaker 01:
The Hegel memo specifically focused on Vietnam veterans.

[00:37:48] Speaker 02:
Oh, they corrected?

[00:37:50] Speaker 02:
Perhaps back to the date when the relief or the correction was requested.

[00:37:56] Speaker 02:
Isn't that what the statute provides?

[00:38:01] Speaker 02:
Other than another 40 or 50 years of silence?

[00:38:08] Speaker 01:
So in terms of back peg?

[00:38:10] Speaker 02:
Trying to understand the relief that you're requesting and the basis for it.

[00:38:15] Speaker 01:
The relief from this court specifically would be to reverse with instructions to the trial court to vacate and remand to the BCNR with instructions for that court to make this change that we've requested in the separation code on this form.

[00:38:31] Speaker 04:
The backup argument would be you want us to remand it back to the BCNR to apply the liberal consideration standard in the first instance if we don't want to get into the facts.

[00:38:44] Speaker 01:
That is a backup argument, but respectfully, we urge the court to... You would want us to apply the liberal consideration angle in the first instance?

[00:38:54] Speaker 01:
In this case, we don't think the court... We don't think liberal consideration is even required.

[00:38:58] Speaker 01:
We think that Mr. Doink can win under substantial evidence, given the complete lack of evidence in the record, to support his diagnosis and discharge.

[00:39:05] Speaker 01:
And so either way, Mr. Doyan should, even without substantial evidence, sorry, even without liberal consideration, Mr. Doyan should receive relief.

[00:39:13] Speaker 01:
And we also cite there's a long line of cases from this court where this court resolved a disability

[00:39:19] Speaker 01:
retirement determinations on the merits.

[00:39:21] Speaker 01:
And Fisher, this court's 2005 decision in Fisher, it reviewed a long line of cases from this court's predecessor.

[00:39:27] Speaker 04:
Just following up on Judge Newman's question, isn't the answer that the Curda memo came out fairly recently, just a few years ago, and section 1552H was enacted just a few years ago.

[00:39:41] Speaker 04:
And so it was on the strength of these new authorities that allowed someone like Mr. Doyan to come in

[00:39:49] Speaker 04:
now at this very late stage, many, many years after his service, to request to have his military records corrected to reflect that he did have PTSD.

[00:40:02] Speaker 04:
of medical sciences evolution to understand and appreciate PTSD during military service and wartime that everyone in the past who had served in the military that maybe had suffered PTSD but it just wasn't appreciated at the time ought to have their records reevaluated in the face of now better science.

[00:40:24] Speaker 01:
So yes, the memo and the statute recognized the change in science in our understanding of PTSD and it required a new standard of review for these types of claims.

[00:40:36] Speaker 04:
It wasn't a situation where Mr. Doyan was just lying in wait for a

[00:40:40] Speaker 04:
five decades and then decided to spring all this on.

[00:40:43] Speaker 01:
Mr. Doyne was getting rejected from jobs because when he submitted his DD-214 form, the form that we're asking to be corrected, there's a code on it that this court has recognized.

[00:40:52] Speaker 01:
Employers knew the meaning of the code and Mr. Doyne did not know.

[00:40:56] Speaker 01:
And the code said,

[00:40:57] Speaker 01:
to employer's personality disorder.

[00:41:00] Speaker 01:
So he was getting the opposite of the veteran's preference that he was supposed to be receiving.

[00:41:04] Speaker 01:
And he had a misdiagnosis for most of his life until it was about a decade ago that Mr. Julian started to, he was diagnosed with PTSD.

[00:41:14] Speaker 01:
And then he very quickly, he was not sleeping on his rights.

[00:41:16] Speaker 01:
He very quickly then filed a claim for relief for the BCNR.

[00:41:20] Speaker 05:
Is the question of his entitlement to disability retirement

[00:41:25] Speaker 05:
from the date of his original discharge before us?

[00:41:29] Speaker 01:
No.

[00:41:34] Speaker 01:
I ask the court to reverse and instructions to give relief to Mr. Doyle.

[00:41:40] Speaker 02:
Thank you.

[00:41:40] Speaker 02:
Thanks to both counsel.

[00:41:42] Speaker 02:
The case is taken under submission.