William Olas Bee v. United States

United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM OLAS BEE,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-2306
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01970-PSH, Judge Philip S. Hadji.
______________________
Decided: July 16, 2026
______________________
MICHAEL CLEMENTE, Latham & Watkins LLP, Wash-
ington, DC, argued for plaintiff-appellant. Also repre-
sented by K YLE R. J EFCOAT ; ASHLEY K. G EBICKE , D ARRYL
HUGH STEENSMA , San Diego, CA; ROCHELLE BOBROFF ,
ESTHERN L EIBFARTH , National Veterans Legal Services
Program, Arlington, VA.
STEVEN J OHN G ILLINGHAM , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by P ATRICIA M. MCCARTHY , D OUGLAS K.
MICKLE, BRETT SHUMATE.
______________________
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BEE v. US 2
Before REYNA, CLEVENGER , and CHEN, Circuit Judges.
REYNA, Circuit Judge.
William Olas Bee appeals from a final decision of the
United States Court of Federal Claims, which sustained
the Board for Correction of Naval Records’ denial of Mr.
Bee’s petition for correction of his military record to reflect
a medical disability retirement. We hold that the Board
applied the wrong legal standard for assessing fitness and
failed to apply liberal consideration to Mr. Bee’s evidence
of his unfitness for duty. We thus vacate the Federal
Claims Court’s decision and remand to the Board for fur-
ther proceedings.
BACKGROUND
In 1999, appellant William Olas Bee enlisted in the
U.S. Marine Corps (“Marine Corps” or “agency”).
J.A. 4052; J.A. 4940. Mr. Bee served his nation honorably
until his voluntary discharge from the Marine Corps on
April 1, 2013. J.A. 4940. During his service, Mr. Bee’s in-
itial “primary military occupation specialty” (“PMOS”) was
an “Infantry Rifleman.” J.A. 4052. A PMOS, also called a
“rate,” identifies the marine’s primary skills within the Ma-
rine Corps’ career-designation system, the “Military Occu-
pational Specialty,” (“MOS”). Id.
Mr. Bee deployed to Afghanistan four times during his
service. During his third deployment, Mr. Bee suffered a
major head injury. J.A. 4069; J.A. 4185. Following this
deployment, he was diagnosed with a “[p]otential [trau-
matic brain injury] with persistent symptoms.” J.A. 4081.
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 fel-
low marines. J.A. 1011–1012. After this deployment, in
2010, Mr. Bee was diagnosed with a traumatic brain injury
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BEE v. US 3
(“TBI”) and post-traumatic stress disorder (“PTSD”).
J.A. 4180.
In June 2010, Mr. Bee returned to the United States
from Afghanistan and was placed on limited duty effective
June 21, 2010. J.A. 4003. Around September 2010, Mr.
Bee was removed from limited duty and subsequently pro-
moted from sergeant to staff sergeant, with his PMOS of
Infantry Rifleman changing to “Infantry Unit Leader.”
J.A. 4887; J.A. 1562.
In November 2010, following his promotion, Mr. Bee
was transferred to the Marine Corps Field Medical Train-
ing Battalion-East, where, until his separation from ser-
vice, he served as an instructor for Navy chaplains and
medics.
In October 2012, Mr. Bee requested to separate early
from the Marine Corps through the Voluntary Separation
Program (“VSP”). J.A. 4399.
On April 1, 2013, Mr. Bee was discharged pursuant to
his VSP request. J.A. 4330. On Mr. Bee’s discharge certi-
fication, formally referred to as a “DD Form 214,” his dis-
charge was noted as April 1, 2013. J.A. 1595. 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. Id. Notably, prior to discharge, Mr. Bee was
never afforded review by a medical review board to deter-
mine 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 con-
nect[ed],” and that each condition was rated at 70 percent
disability. J.A. 5011. He was rated for other conditions
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BEE v. US 4
and received an overall disability rating of 100 percent. See
J.A. 1564.
In April 2018, Mr. Bee submitted an application to the
Board for Correction of Naval Records (“BCNR”) request-
ing 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.
J.A. 4013; J.A. 4031. 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. J.A. 4049.
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.
J.A. 4003–4005 (“2019 Decision”).
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 chal-
lenging 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. J.A. 4245–4263 (“2023 De-
cision”). 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. See J.A. 4248; J.A. 4263. The BCNR
did not explicitly state in its decision whether it was afford-
ing “liberal consideration,” a principle at issue in this ap-
peal, to Mr. Bee’s petition.
Mr. Bee then amended his complaint to challenge the
BCNR 2023 Decision. J.A. 1. Mr. Bee argued that the
BCNR erred in two respects: that it (1) failed to apply the
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BEE v. US 5
correct legal standard for assessing Mr. Bee’s fitness for
duty, and (2) failed to afford liberal consideration to Mr.
Bee’s petition, which Mr. Bee argued was required under
10 U.S.C. § 1552(h) and binding military policy.
J.A. 10–19. The government defended the BCNR’s deter-
mination and also argued that Mr. Bee’s complaint before
the Federal Claims Court was time-barred under 28 U.S.C.
§ 2501. Id.; J.A. 5.
The Federal Claims Court determined that Mr. Bee’s
complaint was timely, denying the government’s motion to
dismiss for lack of subject matter jurisdiction. J.A. 1. The
Federal Claims Court, however, determined that Mr. Bee’s
complaint failed on the merits and thus granted the gov-
ernment’s motion for judgment on the administrative rec-
ord and denied Mr. Bee’s motion for judgment on the
administrative record. Id.
Mr. Bee appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
D ISCUSSION
We review a decision of the Federal Claims Court
“granting or denying a motion for judgment on the admin-
istrative record without deference.” Bader v. United
States, 97 F.4th 904, 909 (Fed. Cir. 2024) (internal citation
omitted). Applying the same standard of review as the
Federal Claims Court, “we will not disturb the decision of
the [Board] unless it is arbitrary, capricious, contrary to
law, or unsupported by substantial evidence.” Id. (internal
citation omitted). We review the Federal Claims Court’s
decision to deny a motion to dismiss de novo. Banks v.
United States, 314 F.3d 1304, 1307–08 (Fed. Cir. 2003).
I. T IMELINESS OF COMPLAINT
As a threshold issue, the government argues that Mr.
Bee’s complaint filed at the Federal Claims Court was
time-barred under the six-year statute of limitations ex-
pressed at 28 U.S.C. § 2501. Appellee Br. 20–24. For the
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BEE v. US 6
following reasons, we disagree with the government and
affirm the lower court’s decision to deny the government’s
motion to dismiss Mr. Bee’s complaint for lack of subject
matter jurisdiction.
Section 2501 provides that “[e]very claim of which the
United States Court of Federal Claims has jurisdiction
shall be barred unless the petition thereon is filed within
six years after such claim first accrues.” 28 U.S.C. § 2501.
A claim accrues “as soon as all events have occurred that
are necessary to enable the plaintiff to bring suit.” Cham-
bers v. United States, 417 F.3d 1218, 1224 (Fed. Cir. 2005).
Generally, a claim for entitlement to medical disability
retirement pay does not accrue until the appropriate med-
ical review board either finally denies such claim or refuses
to hear it. Friedman v. United States, 310 F.2d 381, 395–96
(Ct. Cl. 1962). Thus, if, at the time discharge, the service-
member’s request for a medical review board was refused
or if the medical review board heard the claim for medical
disability retirement pay and denied it, the claim accrued
at discharge. See id. at 390. However, when a servicemem-
ber does not receive review by a medical review board or
did not request such review prior to discharge, and rather
presented a claim for medical disability retirement pay in
the first instance to a military corrections board post-dis-
charge, the “claim does not accrue until final action by the
Correction Board (which in that instance stands in the
place of the [appropriate medical review board] as the
proper tribunal to determine eligibility for disability retire-
ment).” Id. at 395–96.
Here, Mr. Bee argues that because he did not request
or receive review by a medical review board prior to dis-
charge, his claim did not accrue until the BCNR 2019 De-
cision. Reply Br. 24–29. This means his 2021 complaint
was timely, having been filed at the Federal Claims Court
within six years of the 2019 Decision. The government,
however, argues that under the “Real exception,” Mr. Bee’s
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BEE v. US 7
claim accrued at the time of his April 1, 2013 discharge and
not the BCNR 2019 Decision. Appellee Br. 20–24. The gov-
ernment thus argues that Mr. Bee’s 2021 complaint is
time-barred as having been filed six years after April 1,
2013. Id.
The “Real exception” provides that “there are circum-
stances under which the service member’s failure to re-
quest a hearing board prior to discharge has been held to
have the same effect as a refusal by the service to provide
board review.” Real v. United States, 906 F.2d 1557, 1560
(Fed. Cir. 1990) (citation omitted). Under these “circum-
stances,” the claim for medical disability retirement ac-
crues at discharge and not at the time of the decision by a
military corrections board. See id. These “circumstances”
are limited to a scenario where the servicemember had “ei-
ther actual or constructive knowledge that he was entitled
to disability benefits” prior to discharge such that his fail-
ure to request review by a medical review board “justif[ies]
concluding that he waived the right to board review.” Id.
at 1562–63; see also Chambers, 417 F.3d at 1223–27. This
includes a requirement that the servicemember knew or
should have known at the time of discharge that he was
“suffering from a permanently disabling disorder.” Real,
906 F.2d at 1563; see also Reaves v. United States, No.
21-2306, 2022 WL 412740, at *3 (Fed. Cir. Feb. 10, 2022).
Thus, the Real exception is not triggered if the servicemem-
ber simply “learn[ed] of his disabling condition” pre-dis-
charge but rather when the servicemember “knew that [at
the time of discharge] he was entitled to disability retire-
ment due to a permanent disability.” Chambers, 417 F.3d
at 1226 (emphasis added). For example, in Chambers, we
held that the Real exception did not apply because the evi-
dence pre-discharge did not show such knowledge but ra-
ther indicated knowledge that the servicemember’s
condition was “minor, temporary and circumstantial.” Id.
at 1226–27.
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BEE v. US 8
When the Federal Claims Court looks beyond the com-
plaint in determining whether a servicemember had suffi-
cient knowledge of a permanent disability for purposes of
claim accrual, the Federal Claims Court’s finding of
knowledge, or lack thereof, is a question of fact which we
review for clear error. See Real, 906 F.2d at 1563 (remand-
ing the question of knowledge to the Federal Claims Court
to find in the first instance); see also Banks, 314 F.3d at
1307–08 (“[T]his court reviews the Court of Federal Claims’
. . . jurisdictional findings of fact . . . for clear error.”);
Reaves, 2022 WL 412740, at *3. If, however, the Federal
Claims Court bases its determination of the servicemem-
ber’s knowledge solely on allegations in the complaint,
“[w]e review the [Federal Claims Court’s] dismissal de
novo, taking as true all undisputed facts asserted in the
complaint and drawing all reasonable inferences in favor
of the plaintiff.” Reaves, 2022 WL 412740, at *2.
Here, the Federal Claims Court found that Mr. Bee did
not have sufficient knowledge pre-discharge that his PTSD
or TBI were permanent disabilities, relying on evidence
outside of the complaint, namely the VA’s October 2013
Rating Decision and Mr. Bee’s medical evaluations pre-dis-
charge. J.A. 6. We see no error with this finding of fact.
The two types of evidence relied on by the Federal Claims
Court support its finding of insufficient knowledge of per-
manent disabilities pre-discharge. The VA’s October 2013
Rating Decision notified Mr. Bee post-discharge that his
disabilities, combined, were 100 percent disabling. As
such, as the Federal Claims Court found, Mr. Bee “likely
did not understand the ‘full extent’ of his TBI and PTSD,”
until he received the VA’s October 2013 Rating Decision
post-discharge. Id. As to the medical evaluations, which
were issued pre-discharge, they “repeatedly” gave Mr. Bee
a rating of “fit for duty.” Id. As such, as the Federal Claims
Court correctly reasoned, these “positive evaluations” led
Mr. Bee “to believe that his disabilities were of a less seri-
ous nature and that he was not entitled to disability
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BEE v. US 9
retirement.” J.A. 6–7 (internal quotations omitted). Based
on this evidence, the Federal Claims Court’s finding that
Mr. Bee lacked sufficient knowledge of permanent disabil-
ities prior to his discharge is not clearly erroneous.
The government argues that the Federal Claims
Court’s reliance on the VA’s October 2013 Rating Decision
was misplaced, citing to Jones v. United States for the prop-
osition that under Real, a claimant need not “know the nu-
merical score of his disability or that he has a winning
case,” so long as the servicemember has sufficient
knowledge of the disability. Appellee Br. 23–24 (citing 30
F.4th 1094, 1103 (Fed. Cir. 2022)). We reject the govern-
ment’s argument. While Real does not explicitly require
knowledge of a servicemember’s VA disability rating in or-
der to show sufficient knowledge of a permanent disability,
that is not to say that such evidence could never be relevant
to the knowledge inquiry. As Real explains, the knowledge
inquiry is fact dependent and turns on the “circumstances”
of that case. Real, 906 F.2d at 1560–63. Additionally, con-
trary to the government’s position, Jones does not render a
VA’s disability rating decision irrelevant to the Real anal-
ysis. 30 F.4th at 1103. There, we rejected such evidence
because unlike here, the servicemember had already re-
ceived a decision by a medical review board prior to dis-
charge. Id. Thus, we determined that “all events necessary
to fix the government’s alleged liability occurred, entitling
Mr. Jones to bring suit and demand payment” at discharge.
Id. Unlike in Jones, Mr. Bee never received review by a
medical review board and thus, whether Mr. Bee had suf-
ficient knowledge of the permanency of his disabilities pre-
discharge is at issue. Under these circumstances, coupled
with the fact that Mr. Bee repeatedly received positive
medical evaluations from the military pre-discharge, we
see no error in the Federal Claims Court’s reliance on the
VA’s October 2013 Rating Decision. See Real, 906 F.2d at
1560–63.
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BEE v. US 10
In sum, we conclude that the Real exception does not
apply because the Federal Claims Court’s finding that Mr.
Bee had insufficient knowledge of the permanency of his
disabilities is not clearly erroneous. Without the applica-
tion of the Real exception, Mr. Bee’s complaint before the
Federal Claims Court is timely.
II. F ITNESS D ETERMINATION
Mr. Bee argues on appeal that the BCNR legally erred
in two independent respects when conducting its fitness de-
termination. We address each alleged error in turn.
A. § 3301
Mr. Bee first argues that the BCNR legally erred under
SECNAVINST 1850.4E, § 3301 when it failed to relate his
disabilities of PTSD and TBI to the duties of his “office,
grade, rank, or rating.” Appellant Br. 43. Specifically, Mr.
Bee argues the BCNR never conducted this analysis in its
2023 Decision because it never explicitly or implicitly con-
sidered the duties of Mr. Bee’s rating as an Infantry Unit
Leader. Id. Rather, according to Mr. Bee, the BCNR by-
passed this inquiry and instead relied on Mr. Bee’s perfor-
mance reports in his assignment as an instructor for Navy
chaplains and medics. Id. at 46–47. Based on these per-
formance reports, Mr. Bee argues that the BCNR con-
cluded that he was fit to perform the duties of his office,
grade, rank, and rating without first establishing that his
instructor’s duties are the same as those expected of an In-
fantry Unit Leader. Id. at 47. We conclude that the BCNR
legally erred under § 3301.
By statute, when a “member of a regular component of
the armed forces entitled to basic pay” is determined by the
military to be “unfit to perform the duties of the member’s
office, grade, rank, or rating because of physical disability
incurred while entitled to basic pay . . . , the Secretary may
retire the member, with retired pay . . . .” 10 U.S.C.
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BEE v. US 11
§§ 1201(a), (c). This inquiry is colloquially referred to by
the parties as a “fitness determination.”
The Navy implemented this statutory mandate in the
Secretary of the Navy Instruction (“SECNAVINST”), which
is binding Navy policy. Relevant here, SECNAVINST
1850.4E, § 3301, titled “Standard Used for Disability De-
termination,” provides that “[t]he sole standard to be used
in making determinations of physical disability as a basis
for retirement or separation is unfitness to perform the du-
ties of office, grade, rank or rating because of disease or
injury incurred or aggravated while entitled to basic pay.”
SECNAVINST 1850.4E, § 3301 (emphases added). Thus,
if a servicemember is unable to perform the duties of either
his office, grade, rank, or rating, he may be found to be un-
fit for purposes of § 3301. Id. Here, the issue is whether
Mr. Bee could perform the duties of his rating as an “Infan-
try Unit Leader,” his rating at the time of his discharge.
Section 3301 also provides that “[e]ach case is consid-
ered by relating the nature and degree of physical disability
of the member to the requirements and duties that member
may reasonably be expected to perform in his or her office,
grade, rank or rating.” Id. (emphasis added). Thus, the
deciding body, i.e., the medical review board pre-discharge
or the BCNR post-discharge, is required to “consider[]” a
servicemember’s fitness for duty by “relating the nature
and degree of physical disability of the member to the re-
quirements and duties that member may reasonably be ex-
pected to perform in his or her office, grade, rank or rating.”
Id.1 Notably, § 3301 does not impose any specific format or
1 In its 2023 Decision, the BCNR noted that it does
not conduct fitness determinations. See J.A. 4247. This is
incorrect. As the Federal Claims Court noted below and
the government clarified at oral argument in this appeal,
the BCNR conducts fitness determinations. See J.A. 14; see
also Oral Arg. 1:25:32–1:25:44; 1:28:24–1:28:32.
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BEE v. US 12
procedure for considering the servicemember’s duties.
Thus, the deciding body has flexibility with this analysis
and need not provide an exhaustive list of each duty ex-
pected of the servicemember. But at a minimum, such con-
sideration should contain a clear statement from the
deciding body of the duties a servicemember may “reason-
ably be expected to perform” of their “office, grade, rank, or
rating.” Id. (emphasis added). Thus, so long as the duties
identified are representative of those “reasonably . . . ex-
pected” of the servicemember, the deciding body has satis-
fied § 3301.
Here, the BCNR ran afoul of § 3301 by failing to explic-
itly or implicitly identify any duties “reasonably . . . ex-
pected” of an Infantry Unit Leader in its 2023 Decision. See
J.A. 4245–4263. By failing to identify these duties, the
BCNR could not relate such duties with Mr. Bee’s disabili-
ties as required under § 3301.
Compounding this legal error was the BCNR’s mis-
taken belief that it had no obligation to identify these du-
ties. In its 2023 Decision, the BCNR conceded that it
“failed to make explicit findings” as to the duties of Mr.
Bee’s “office, grade, rank, or rating” in its earlier 2019 De-
cision. J.A. 4248. The BCNR, however, noted that it need
not do so in its 2023 Decision because “[t]he burden was on
[Mr. Bee] to prove [he] w[as] reasonably unable to perform
the duties of [his] office, grade, rank, or rating . . . , and not
upon the Board to prove that [he] w[as] capable of perform-
ing those duties.” Id. The BCNR’s reasoning is legally er-
roneous. 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 § 3301, which requires consideration
of the “duties that member may reasonably be expected to
perform in his or her office, grade, rank or rating.”
SECNAVINST 1850.4E, § 3301. As previously noted, this
requirement, at a minimum, requires a clear statement
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BEE v. US 13
from the BCNR of the duties “reasonably . . . expected” of
an Infantry Unit Leader. Id.
The government, however, argues that the BCNR suf-
ficiently complied with § 3301 in the 2023 Decision when,
towards the end of this decision, the BCNR noted the du-
ties of Mr. Bee’s position as an instructor of Navy chaplains
and medics and concluded that those duties were substan-
tially similar to an “Infantry Unit Leader assigned to an
operational Marine combat unit in a garrison environ-
ment.” Appellee Br. 31–32 (quoting J.A. 4259). This state-
ment, however, is legally insufficient under § 3301. Per the
plain language of § 3301, the inquiry focuses on a compar-
ison of a servicemember’s disabilities to his duties of his
“rating,” not a comparison only in the context of a single
limited environment, such as an Infantry Unit Leader in a
“garrison environment.” SECNAVINST 1850.4E, § 3301.
To conclude, we hold that the BCNR legally erred un-
der § 3301 when it failed to explicitly or implicitly identify
the duties “reasonably . . . expected” of Mr. Bee’s rating as
an Infantry Unit Leader. On remand, the BCNR must pro-
vide a clear statement of the duties “reasonably . . . ex-
pected” of an Infantry Unit Leader based on the record
before it.2
B. § 3304
Mr. Bee also argues that the BCNR separately erred
under SECNAVINST 1850.4E, § 3304 when it failed to con-
duct the proper analysis for considering whether Mr. Bee
could reasonably perform his duties as an Infantry Unit
2 Mr. Bee argues that the duties “reasonably . . . ex-
pected” of an Infantry Unit Leader (1) are described in the
Marine Corps Infantry Training and Readiness Manual
and (2) include combat. Appellant Br. 45–46. Whether
these two points are true is for the BCNR to decide in the
first instance on remand.
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BEE v. US 14
Leader. Appellant Br. 44–45. Specifically, Mr. Bee argues
that the BCNR failed to address two of four required fac-
tors under § 3304: common military tasks and deployabil-
ity. Id. We agree.
Section 3304 is titled “Reasonable Performance of Du-
ties” and provides that when the deciding body is “[d]eter-
mining whether a member can reasonably perform his or
her duties,” the determination “includes consideration of”
four factors: the servicemember’s (1) “Common Military
Tasks,” of his “office, grade, rank, or rating,” (2) “Physical
Readiness/Fitness Tests,” (3) “Deployability,” and (4) “Spe-
cial Qualifications.” SECNAVINST 1850.4E, § 3304. In
other words, the deciding body must consider these four
factors. Id.
Here, the BCNR failed to consider whether Mr. Bee’s
disabilities affected his performance of common military
tasks of an Infantry Unit Leader. As previously discussed,
the BCNR failed to identify the duties of an Infantry Unit
Leader and instead focused on the duties of Mr. Bee’s posi-
tion as an instructor for Navy chaplains and medics. Sim-
ilar to our analysis under § 3301, 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 In-
fantry Unit Leader, is legally erroneous under § 3304. See
Kelly v. United States, 69 F.4th 887, 895–96 (Fed. Cir.
2023) (noting that in the context of § 3304, the Federal
Claims Court “correctly found” that two performance eval-
uations, reflective of a subset of duties, “failed to suffi-
ciently address whether Mr. Kelly was able to perform the
common duties” of a rating of a “Second-Class Navy
Diver”).
The BCNR also failed to consider whether Mr. Bee’s
disabilities would affect his deployability. The government
does not argue otherwise. See Appellee Br. 29–30. How-
ever, the government argues that the BCNR was not re-
quired to consider Mr. Bee’s deployability under § 3304
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BEE v. US 15
because the “[i]nability to perform the duties of his or her
office, grade, rank, or rating in every geographic location
and under every conceivable circumstance will not be the
sole basis for a finding of Unfit[ness].” Id. (quoting J.A. 14
(quoting § 3307)). In other words, the government argues
that the BCNR’s failure to consider deployability was
harmless error because this factor alone could never serve
as the basis for unfitness. See id. We disagree. That de-
ployability alone could never be the basis for a finding of
unfitness does not mean that deployability could never
meaningfully influence an assessment of fitness. The gov-
ernment’s position effectively neuters deployability from
the § 3304 inquiry. This is error.
In sum, the BCNR’s failure to consider the required
factors of common military tasks and deployability under
§ 3304 was legal error. On remand, the BCNR must con-
sider these factors when considering whether Mr. Bee
could “reasonably perform his . . . duties” as an Infantry
Unit Leader under § 3304.
III. L IBERAL CONSIDERATION
Mr. Bee also argues on appeal that the BCNR erred in
its 2023 Decision by failing to give “liberal consideration”
to his petition, which requested a change in the narrative
reason for discharge reflected in his DD Form 214 from vol-
untary discharge to a medical disability retirement based
on his service-connected PTSD and TBI. Appellant Br. 31.
Underlying this argument are two sub-issues. The first is
whether, under either 10 U.S.C. § 1552(h) or binding De-
partment of Defense (“DoD”) policy, the BCNR must afford
“liberal consideration” to not only a request for a change in
the servicemember’s narrative reason in his DD Form 214
but also to the BCNR’s fitness determination. The second
is, assuming liberal consideration extends to a fitness de-
termination, whether the BCNR failed to apply such con-
sideration here. Before addressing these two issues, we
provide an overview of liberal consideration.
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BEE v. US 16
A.
Generally, “liberal consideration” refers to a require-
ment that military correction boards liberally consider pe-
titions for correction of military records that claim that the
servicemember’s service-connected mental health condi-
tion, such as PTSD, TBI, or sexual abuse trauma, affected
the circumstances of his discharge. The specifics of this
rule are found in binding DoD policy and 10 U.S.C.
§ 1552(h), which we discuss below.
Beginning with DoD policy, in 2014, the DoD issued
binding policy via a memorandum by Secretary of Defense
Hagel (“Hagel Memo”). See ADD1–4.3 The Hagel Memo
explains that petitions filed before military correction
boards seeking a “discharge upgrade” based on the vet-
eran’s “previously unrecognized” PTSD should be afforded
“liberal consideration.” See ADD1–2. In other words, when
a veteran is seeking a correction to his discharge reflected
in his military record, such as in his DD Form 214, from an
unfavorable discharge to a more favorable one in light of
the veteran’s PTSD, a military correction board should af-
ford “liberal consideration” to certain aspects of the pro-
ceeding. See id. For example, the Hagel Memo provides
that:
[i]n cases where Service records or any docu-
ment from the period of service substantiate
the existence of one or more symptoms of
what is now recognized as PTSD or a PTSD-
related condition during the time of service,
liberal consideration will be given to finding
that PTSD existed at the time of service.
Id. (emphasis added).
3 “ADD” refers to the addendum at the end of Mr.
Bee’s opening brief in this appeal.
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BEE v. US 17
In August 2017, the DoD issued additional binding pol-
icy in a memorandum by acting Under Secretary of Defense
Kurta (“Kurta Memo”). The Kurta Memo expands on the
Hagel Memo, requiring military correction boards to afford
“liberal consideration” under broader circumstances. See
ADD5–6. For example, the Kurta Memo notes that liberal
consideration should not only be afforded to claims related
to PTSD but to other “[i]nvisible wounds,” including “men-
tal health conditions; traumatic brain injury; sexual as-
sault; or sexual harassment.” ADD5–6. Additionally, the
Kurta Memo clarified that “liberal consideration” applies
not only to a “discharge upgrade” but more broadly to peti-
tions seeking “discharge relief.” ADD6. The Kurta Memo
also recognized that “the term discharge includes the char-
acterization, narrative reason, separation code, and re-en-
listment code” reflected in a servicemember’s military
record, such as in the DD Form 214. ADD8.
Finally, the Kurta Memo provides guidance as to the
meaning of “liberal consideration.” While the Kurta Memo
does not provide a singular definition, it explains that
“[l]iberal consideration includes but is not limited to . . .
[eleven] concepts.” Id. These eleven concepts vary, ranging
from concepts concerning evidentiary leniency to general
propositions concerning the nature of PTSD and other
mental health conditions. ADD8–9. For example, one con-
cept provides that “[s]ome circumstances require greater
leniency and excusal from normal evidentiary burdens.”
ADD8. Another provides that “[m]ental health conditions,
including PTSD [and] TBI . . . inherently affect one’s be-
haviors and choices causing veterans to think and behave
differently than might otherwise be expected.” ADD9.
Turning to statutory authority, in December 2017,
Congress amended the BCNR’s authorizing statute to re-
quire military correction boards to review claims involving
service-connected PTSD, TBI, and other mental health con-
ditions with “liberal consideration.” 10 U.S.C. § 1552(h);
see also National Defense Authorization Act for Fiscal Year
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BEE v. US 18
2018, Pub. L. No. 115-91 § 520, 131 Stat. 1283, 1379, 1380
(2017). The statute provides that:
(1) [t]his subsection applies to a former mem-
ber of the armed forces whose claim under
this section for review of a discharge or dis-
missal is based in whole or in part on matters
relating to post-traumatic stress disorder or
traumatic brain injury as supporting ra-
tionale, or as justification for priority consid-
eration, and whose post-traumatic stress
disorder or traumatic brain injury is related
to combat or military sexual trauma, as deter-
mined by the Secretary concerned.
(2) In the case of a claimant described in par-
agraph (1), a board established under subsec-
tion (a)(1) shall--
. . .
(B) review the claim with liberal considera-
tion to the claimant that post-traumatic
stress disorder or traumatic brain injury po-
tentially contributed to the circumstances re-
sulting in the discharge or dismissal or to the
original characterization of the claimant’s dis-
charge or dismissal.
10 U.S.C. § 1552(h)(1)–(2)(B) (emphasis added).
In 2023, in Doyon v. United States, this court clarified
that under both the Kurta Memo and 10 U.S.C. § 1552(h),
the BCNR must afford “liberal consideration” to a petition
for correction of a servicemember’s military record to re-
flect a change in the narrative reason of discharge in his
DD Form 214 from a personality disorder to discharge due
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BEE v. US 19
to physical disability, i.e., PTSD.4 58 F.4th 1235, 1243–48
(Fed. Cir. 2023). In Doyon, the government argued that
under either the Kurta Memo or 10 U.S.C. § 1552(h), lib-
eral consideration was only to be afforded to a specific type
of discharge relief, i.e., misconduct-based upgrades or mod-
ifications to a servicemember’s characterization of service.
Id. at 1243. We disagreed, noting that under both legal
sources, liberal consideration applies more broadly to “any
petition seeking discharge relief,” including changes to the
narrative reason reflected in the DD Form 214 and changes
to re-enlistment codes. Id. at 1243–48.
B.
We now turn to the arguments on appeal concerning
liberal consideration. The first is whether liberal consider-
ation extends only to Mr. Bee’s request to change the nar-
rative reason for discharge in his DD Form 214 to reflect a
medical disability retirement or whether it also extends to
the related fitness determination the BCNR makes when
determining if the servicemember is entitled to medical
disability retirement pay. According to Mr. Bee, under ei-
ther the Hagel and Kurta Memos or 10 U.S.C. § 1552(h),
liberal consideration extends to both inquiries. See Appel-
lant Br. 32–42. The government argues that liberal con-
sideration can only extend to the former. See Appellee Br.
40–47; see also Oral Arg. at 1:27:55–1:28:16. For the below
reasons, we determine that the plain language of 10 U.S.C.
§ 1552(h) requires the BCNR to afford liberal consideration
to both inquiries. As such, we need not reach whether the
Kurta and Hagel Memos also separately require liberal
consideration to extend this far.
“When interpreting a statute, we begin our analysis
with the language of the statute itself.” Res-Care, Inc. v.
4 The Hagel Memo was not at issue in Doyon. 58
F.4th at 1243.
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BEE v. US 20
United States, 735 F.3d 1384, 1388 (Fed. Cir. 2013). “If the
statutory language is plain and unambiguous, then it con-
trols.” Id. (citation modified); Xianli Zhang v. United
States, 640 F.3d 1358, 1364 (Fed. Cir. 2011).
The statute at issue provides that a military correc-
tions board may review a “claim . . . for review of a dis-
charge or dismissal . . . based in whole or in part on matters
relating to post-traumatic stress disorder or traumatic
brain injury . . . [which] is related to combat or military
sexual trauma, . . .” 10 U.S.C. § 1552(h)(1). No party dis-
putes that Mr. Bee’s petition is a “claim” under
§ 1552(h)(1). Appellant Br. 32; Oral Arg. 1:24:12–1:24:47.
The statute also provides that military corrections boards
“shall . . . review the claim [as defined §1552(h)(1)] with
liberal consideration to the claimant that the post-trau-
matic stress disorder or traumatic brain injury potentially
contributed [1] to the circumstances resulting in the dis-
charge or dismissal or [2] to the original characterization
of the claimant’s discharge or dismissal.” 10 U.S.C.
§ 1552(h)(2)(B). Thus, under § 1552(h)(2)(B), liberal con-
sideration is afforded to two propositions, that the PTSD or
TBI “potentially contributed to the circumstances resulting
in the discharge or dismissal,” and that the PTSD or TBI
“potentially contributed . . . to the original characterization
of the claimant’s discharge or dismissal.” Id.
We need not determine whether the second, narrower
proposition encompasses a fitness determination because
we hold that the first, broader proposition, i.e., that PTSD
or TBI “potentially contributed to the circumstances result-
ing in the discharge,” encompasses fitness determinations.
As previously discussed, a “fitness determination” is an in-
quiry undertaken by the relevant medical review board
pre-discharge, or by the BCNR post-discharge, to deter-
mine whether the servicemember should be retired with
pay from the military due to physical disability. See 10
U.S.C. § 1201(a). The inquiry asks whether, due to a ser-
vice-connected disability, the servicemember is “unfit to
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BEE v. US 21
perform the duties of the member’s office, grade, rank, or
rating.” Id. Here, Mr. Bee is seeking a change in the nar-
rative reason for his discharge in his DD Form 214 to re-
flect a medical disability retirement. Mr. Bee’s fitness, i.e.,
whether he was unfit to perform the duties of an Infantry
Unit Leader under 10 U.S.C. § 1201(a), is a factual deter-
mination necessary to reflect a medical disability retire-
ment on Mr. Bee’s DD Form 214. See 10 U.S.C. § 1201(a)
(providing that only “upon a determination” that the ser-
vicemember is unfit “may [the military] retire the mem-
ber”). As such, the BCNR’s fitness determination plainly
falls within 10 U.S.C. § 1552(h)(2)(B)’s requirement that
liberal consideration be afforded to the proposition that a
servicemember’s PTSD or TBI “potentially contributed to
the circumstances resulting in the discharge.” Whether
Mr. Bee was unfit for duty necessarily falls within and di-
rectly impacts Mr. Bee’s overall claim that his service-con-
nected PTSD and TBI potentially contributed to “the
circumstances resulting in [his] discharge,” which was er-
roneously noted as a voluntary discharge, and which
should be changed to a medical disability retirement.
The government’s argument to the contrary fails. The
government argues that despite the plain language of 10
U.S.C. § 1552(h)(2)(B), Congress did not intend to “topple
. . . well-established” military authority that liberal consid-
eration does not extend to fitness determinations, as evi-
denced by the Hagel and Kurta Memos. Appellee Br.
40–48.5 We reject the government’s position on two
grounds. First, as previously noted, “[i]f the statute is clear
5 See also Oral Arg. at 1:27:10–1:27:25 (govern-
ment’s counsel agreeing that its “view is whatever these
words are in the statute [10 U.S.C. § 1552(h)(2)(B)] just go
look at Hagel and Kurta and just restrict yourself to what
[these memos] speak to and neither . . . speak to medical
retirement”).
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BEE v. US 22
and unambiguous, then the plain meaning of the statute is
conclusive, and we give effect to the unambiguously ex-
pressed intent of Congress.” Xianli Zhang, 640 F.3d at
1364. For the reasons already discussed, 10 U.S.C.
§ 1552(h) broadly applies liberal consideration to fitness
determinations when the petition at issue is seeking a
change in the narrative reason for discharge in the DD
Form 214 to reflect a medical disability retirement. The
government’s position effectively asks this court to rewrite
10 U.S.C. § 1552(h) to except fitness determinations from
liberal consideration, which we cannot do. We only inter-
pret the law; we do not write it. See Marbury v. Madison,
5 U.S. 137, 177 (1803) (“It is emphatically the province and
duty of the judicial department to say what the law is.”).
Second, the Hagel and Kurta Memos do not indicate a
“well-established” military rule that liberal consideration
cannot extend to fitness determinations. Neither memo ex-
plicitly prohibits liberal consideration from extending to
fitness determinations, see ADD1–9, and the Kurta Memo
could reasonably be read as allowing liberal consideration
to extend to fitness determinations. See ADD5–9. The
Kurta Memo notes that liberal consideration applies to pe-
titions seeking “discharge relief,” without any distinction
as to the type of relief sought. ADD6 (emphasis added).
The Kurta Memo also notes that a “discharge” encom-
passes such actions like a change in the narrative reason
for discharge. ADD8. Thus, while the Kurta Memo does
not explicitly discuss fitness determinations, it plainly en-
visions liberal consideration as having broad reach, includ-
ing petitions seeking discharge relief related to service-
connected PTSD, TBI, and/or sexual abuse trauma. See
ADD5–9. Thus, given that neither the Hagel nor Kurta
Memos explicitly prohibit liberal consideration from ex-
tending to fitness determinations and given the broad un-
derstanding of liberal consideration set out in the Kurta
Memo, we reject the government’s position that these two
memos evidence a “well-established” military rule that
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BEE v. US 23
liberal consideration does not extend to fitness determina-
tions.
In sum, we hold that under 10 U.S.C. § 1552(h), liberal
consideration applies to the BCNR’s fitness determination
when a servicemember seeks to change the narrative rea-
son for their discharge to a medical disability retirement.
C.
Mr. Bee next argues the BCNR did not apply liberal
consideration to his petition in form or in substance. Ap-
pellant Br. 37–39. Specifically, Mr. Bee argues that the
BCNR did not expressly state that it was applying liberal
consideration nor did it apply any of the specific principles
of liberal consideration mandated under the Kurta Memo.
Id. The government argues that the BCNR gave liberal
consideration here since it gave “full consideration, accept-
ing Mr. Bee’s PTSD and TBI diagnoses, and analyzing all
of the evidence of his fitness with that in mind.” Appellee
Br. 48. We hold that the BCNR failed to give Mr. Bee’s
petition liberal consideration.
“Liberal consideration” is not defined by statute. See
10 U.S.C. § 1552(h).6 In the absence of a statutory defini-
tion of the term “liberal consideration,” we may consider its
use in other relevant contexts. See F.A.A. v. Cooper, 566
U.S. 284, 291–92 (2012) (“[W]hen Congress employs a term
of art, it presumably knows and adopts the cluster of ideas
that were attached to each borrowed word in the body of
learning from which it was taken.” (citation modified)).
Here, “[s]ection 1552(h) codified the liberal consideration
standard prescribed by the Kurta Memo.” Doyon, 58 F.4th
at 1246. In the Kurta Memo, “liberal consideration” refers
to a cluster of “concepts,” with no singular definition.
6 The parties do not argue in favor of any dictionary
definitions of this phrase or that this phrase has a plain
meaning. See Appellant Br. 39–41; Appellee Br. 48–51.
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BEE v. US 24
ADD8–9. Specifically, the Kurta Memo provides that
“[l]iberal consideration includes but is not limited to . . .
[eleven] concepts,” including concepts related to eviden-
tiary considerations and others related to general proposi-
tions about mental health conditions. Id. And while the
Kurta Memo does not provide a singular definition of “lib-
eral consideration,” there is a fundamental characteristic
to be gleaned from it: liberal consideration may be under-
stood as a “more lenient . . . evidentiary standard.” Doyon,
58 F.4th at 1238. That is, a veteran’s testimony and evi-
dence may be given more credit and weight under certain
circumstances to establish that the veteran was unfit for
duty due to PTSD or TBI. See ADD8 (“It is unreasonable
to expect the same level of proof for injustices committed
years ago when TBI; mental health conditions, such as
PTSD; and victimology were far less understood than they
are today.”).
Thus, we conclude that under 10 U.S.C. § 1552(h), lib-
eral consideration at a minimum (a) is a lenient eviden-
tiary standard the BCNR should apply when considering
whether the servicemember showed he was unfit for duty,
and (b) should reflect the applicable concepts listed in the
Kurta Memo.7 Additionally, the BCNR should clearly in-
dicate in its decision when it is applying liberal considera-
tion.
We now turn to whether the BCNR failed to apply lib-
eral consideration to Mr. Bee’s petition. We determine that
it did. Here, there is no statement, explicit or implied, in-
dicating that the BCNR applied a lenient evidentiary
standard in its 2023 Decision. To the contrary, as the Fed-
eral Claims Court noted, the BCNR “fully grappled with
the evidence for and against [Mr. Bee’s] claim.” J.A. 13.
7 If clarity is needed as to the definition of “liberal
consideration” within 10 U.S.C. § 1552(h), it is for Congress
to address.
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BEE v. US 25
However, to fully grapple with the evidence, i.e., consider
and weigh the evidence in the record, is not liberal consid-
eration but rather the BCNR’s basic duty owed to a service-
member’s petition. See SECNAVINST 1850.4E § 3306(a)
(“All relevant evidence must be weighted in relation to all
known facts and circumstances . . . .”). Thus, on remand,
the BCNR must do more than just consider and weigh Mr.
Bee’s evidence of unfitness. At a minimum, it must afford
a more lenient evidentiary standard when considering
whether Mr. Bee’s evidence establishes that he was unfit
to perform the duties of an Infantry Unit Leader. It must
also consider and apply those concepts applicable to Mr.
Bee’s petition from the Kurta Memo, and it must make
clear that it is applying liberal consideration to Mr. Bee’s
petition.
CONCLUSION
We have considered the government’s other arguments
and find them unpersuasive. For the foregoing reasons, we
vacate the Federal Claims Court’s decision. The BCNR
erred when it failed to apply the correct legal standards for
assessing Mr. Bee’s fitness under SECNAVINST 1850.4E,
§§ 3301, 3304. The BCNR also erred when it failed to apply
liberal consideration to Mr. Bee’s petition, which extends
to his request for a change in his narrative reason for sep-
aration in his DD Form 214 from voluntary separation to
medical disability retirement and to the underlying fitness
determination.
The case is remanded to the Federal Claims Court with
direction for a remand to the BCNR for further proceedings
consistent with this opinion.
VACATED AND REMANDED
COSTS
Costs to appellant.
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