In 1966, as the Vietnam War escalated, Robert Doyon voluntarily enlisted in United States Navy. Upon his enlistment, Mr. Doyon was stationed aboard the storied USS Intrepid where he experienced significant trauma, including witnessing an explosion and fire on a nearby Navy ship that resulted in more than 130 deaths and 160 injuries. Subsequently, his mental health deteriorated, he developed severe agitation and distress, and he was unable to perform his duties. He was referred to sick bay, where he was initially diagnosed with a “nervous collapse” and sedated with an anti-psychotic medication. After a two-week hospitalization, his initial diagnosis was changed to a purported personality disorder, and he was returned to the USS Intrepid. Shortly thereafter, he was discharged with an Honorable discharge for “unsuitability due to a personality disorder.” Decades later, the VA diagnosed Mr. Doyon with Post-Traumatic Stress Disorder (PTSD) from the stressors he encountered in Vietnam.
In recent years, Congress and the Department of Defense (DOD) have recognized that veterans seeking changes in military discharges deserve “liberal consideration” of their claims for PTSD, including veterans erroneously diagnosed with personality disorders and discharged without medical retirement benefits. First, in 2014, DOD enacted guidance instructing military review Boards to give liberal consideration to claims from Vietnam veterans, including those diagnosed with PTSD years later. In 2017, DOD promulgated further guidance clarifying that liberal consideration applies to any petition seeking discharge relief, including changes in the narrative reason. Congress enacted into law the liberal consideration standard for PTSD in 2018.
The implementation of the DOD Guidance and statute has led to many veterans obtaining discharge upgrades, for example changing the discharge characterization from “Other than Honorable” to “Honorable.” These upgrades enable veterans to obtain VA benefits. DOD has also applied liberal consideration to changes in the narrative reason for discharge, for instance replacing “personality disorder” or “misconduct” with “Secretarial Authority.” These narrative changes improve employment opportunities for veterans who must show their discharge certificates to potential employers.
Liberal consideration is particularly important for Vietnam era veterans like Mr. Doyon since PTSD was not a recognized diagnosis in the 1960s, resulting in misdiagnosis and punitive discharges for mental health symptoms. Recent studies have documented that thousands of veterans are improperly discharged yearly based on inaccurate personality disorder diagnoses. Many of these veterans actually suffer from PTSD or other mental health conditions.
However, when Mr. Doyon sought to take advantage of the required liberal consideration guidance to have his discharge corrected to reflect a medical retirement, DOD insisted that liberal consideration did not apply to medical retirement, which changes the narrative reason on a veteran’s discharge document to indicate separation for disability. Medical retirement confers extensive DOD benefits, including monthly retirement payments and military medical care (“Tricare”) for the servicemember, his or her spouse, and the servicemember’s children while they remain dependents.
Mr. Doyon first sought assistance from the National Veterans Legal Services Program (NVLSP) to apply to the Board for Correction of Naval Records for medical retirement benefits for his PTSD. NVLSP determined that his case was meritorious and, through its Lawyers Serving Warriors® program, placed the case with global law firm Latham & Watkins LLP. Unfortunately, his application for medical retirement was denied. The Board ruled that his PTSD diagnosis was too distant in time to be probative of his naval service and that liberal consideration did not apply to medical retirement claims. The Court of Federal Claims upheld the Navy’s decision.
Mr. Doyon, with the continued assistance of NVLSP and Latham & Watkins, appealed to the Federal Circuit, arguing that the clear language of the statute and DOD’s Guidance require applying liberal consideration as the proper standard for medical retirement cases involving PTSD. On January 25, 2023, the Federal Circuit agreed and held that liberal consideration applies, pursuant to both the statute and DOD’s Guidance, to all requests to correct the narrative reason on a veteran’s discharge certificate or DD-214, where the correction sought is based on matters related to PTSD. The Federal Circuit ruled that the Board for Correction of Naval Records’ refusal to apply liberal consideration when reviewing Mr. Doyon’s application for medical retirement was unlawful. The Court remanded the case for application of liberal consideration to his medical retirement claim.
Many veterans of all eras have been impacted by DOD’s previous refusal to apply liberal consideration to medical retirement claims. In the Iraq and Afghanistan wars, numerous veterans lived through traumatic combat events that caused them to suffer PTSD. Moreover, studies have documented the widespread and pervasive experiences of military sexual trauma that cause PTSD. All of these veterans are now entitled to liberal consideration of their medical retirement claims. We are hopeful that with the proper legal standard, veterans can obtain the medical retirement benefits that they have earned.
Comments 1
I repeat my concern that the Disciplinary Committee, the VA’s Discretionary Committee, is being used to silence veterans and to intimidate veterans into submission. This Discretionary Committee is being abused by primary doctors against veterans who merely are contributing personal views as a team member about personal medical care. A large number of primary care doctors in California abuse the regulations that guide the actions of the Disciplinary (Discretionary) Committee toward veterans. Certainly a few veterans become violent. But, these primary care doctors, Schnur of Chico CA and Westphal of Clearlake CA abuse the power of a useful VA Committee that protects VA employees from violent patients. Schnur and Westphal’s abuse of a veteran was the result of his desire to contribute his view of their medical care for him/her. Schnur and Westphal became defensive and belligerent. Then each planned an appointment for the veteran with the intent to bait the veteran. Each doctor intended to ban the veteran from the Clinic. Investigations found the veteran innocent of all alleged outbursts. I, for example, knew what was intended and had an attorney to accompany me with this Schnur primary care doctor of Chico. When we left, the attorney said that they intended to arrest me, which means jail, which means that VA benefits are taken away. Read the posts at all the sites. This abuse toward reasonable veterans is occurring on a routine basis. None of us, however, can afford an attorney to sue the VA. The attorney who accompanied me charged me $500.00. This is an example of veterans who need help from law firms in an area of increasingly abuse by primary care VA doctors of veterans. The veterans only infraction is being a contributing member of the medical team that offers medical care to her/him. The VA message to the veteran including the marketing tells the veteran to speak up in these team discussions about the treatment plan under discussion. Yet, when the veteran insists that a particular medical treatment is preferred, the primary doctor becomes defensive and belligerent with the patient. Then the doctor assigns the veteran to the Disciplinary (Discretionary) Committee. Obviously, these two primary care doctors abused the regulations of the Committee. Only an attorney, however, will get the attention of the VA employee who oversees this abusive committee that ignores the basic civil rights of a veteran. Usually, it is the VISN Director.