UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
VLADIMIR S. VASQUEZ,
Plaintiff,
v. Case No. 1:24-cv-1373 (TNM)
DANIEL P. DRISCOLL, in his official capacity as Secretary of the Army,
Defendant.
MEMORANDUM OPINION
Vladimir Vasquez requested early separation from the U.S. Army nearly two decades
ago. He believes the military erred by granting his discharge request instead of medically
retiring him because of Post-Traumatic Stress Disorder (“PTSD”). He asked the Army Board for
Correction of Military Records to change his discharge to a medical retirement, but it refused.
So Vasquez is suing the Secretary of the Army, 1 seeking a redo of the Board’s decision.
Both parties move for summary judgment. The focal point is whether the Board applied
the correct standard of review. Vasquez contends that the Board abused its discretion by failing
to give his request “liberal consideration” as required by statute and military policy. The
Secretary maintains that liberal consideration does not apply to Vasquez’s situation. The
Secretary is mistaken. So the Court will grant Vasquez’s motion for summary judgment and
vacate and remand the Board’s decision for reconsideration under the correct standard.
1 Defendant Daniel Driscoll replaced the former Secretary, Christine Wormuth. Under Federal Rule of Civil Procedure 25(d), when a public officer sued in an official capacity vacates the office while the action is pending, her successor is automatically substituted as a party. I.
Vasquez served in the Army from 2001 until 2007. Compl., ECF No. 1, ¶ 3. In 2007, he
and his wife were in a serious car accident. Compl. ¶ 11. Tragically, his wife did not survive.
Id. In the aftermath, he requested—and was granted—early administrative separation from the
military so he could raise his son. See Compl. ¶ 12; Administrative Record (“A.R.”), ECF No.
21, at 4, 7. This is commonly called a “hardship” discharge. See A.R. at 4. He was honorably
discharged in December 2007. Id.
The year after separating from the Army, Vasquez applied for disability with the
Department of Veterans Affair (“VA”) based on PTSD. Compl. ¶ 13. His PTSD stems from
two tours in Iraq, where he experienced “weekly mortar detonations at his base” and “helped
clean up human remains” in the wake of Improvised Explosive Device detonations. Compl.
¶¶ 6–7. The VA found that his service-connected PTSD qualified him for a 10% disability rating
effective December 7, 2007, and a 100% rating effective March 22, 2009. 2 Compl. ¶ 15.
In 2014, Vasquez asked the Board to modify his voluntary discharge and reclassify it as a
medical retirement based on PTSD. Compl. ¶ 16; see also A.R. at 129–30. The Board denied
his request. It found insufficient evidence that he had a condition rendering him unfit for
continued service—and thus eligible for medical retirement—when he separated. Compl. ¶ 17;
A.R. at 134–36.
Several years later in 2017, the Department of Defense (“DoD”) changed how the Board
evaluates discharge modification requests involving PTSD. Then-Under Secretary of Defense
2 A VA disability rating is different from a medical retirement determination. Medical retirement decisions fall outside the VA’s purview and turn on different criteria than VA disability ratings. See Def.’s Mot. Summ. J., ECF No. 16, 6–9 (explaining the framework for each).
2 Anthony Kurta issued a memorandum (the “Kurta Memo”) directing the Board to apply “liberal
consideration” to “discharge relief [requests] when the application for relief is based in whole or
in part on . . . PTSD.” Off. of the Under Sec’y of Def., Clarifying Guidance to Military
Discharge Review Boards and Boards for Correction of Military/Naval Record Considering
Requests by Veterans for Modification of Their Discharge Due to Mental Health Conditions,
Sexual Assault or Sexual Harassment (August 25th, 2017) at 1. Congress codified this liberal
consideration directive later that year. See 10 U.S.C. § 1552(h)(2)(B). By statute, the Board
must give “liberal consideration” when a veteran claims “that post-traumatic stress disorder . . .
potentially contributed to the circumstances resulting in [his] discharge.” Id.
So Vasquez tried again in 2022. Armed with new evidence—letters from his fellow
soldiers indicating that he showed signs of PTSD prior to separating, plus an additional 10% VA
rating for a traumatic brain injury—he asked the Board to reconsider its earlier decision and
apply liberal consideration. Compl. ¶ 18; A.R. at 6. The Board again denied his request and
maintained that the “evidence does not indicate the presence of a medical condition prior to the
applicant’s discharge that would have been a basis for referring him to the Disability Evaluation
System.” Compl. ¶ 19; A.R. at 8. The decision lists Vasquez’s evidence but does not discuss it
further. See A.R. at 4–5. In reaching its conclusions, the Board adopted the findings and
recommendations of a Medical Adviser who reviewed Vasquez’s medical and military records.
See A.R. at 8. The Medical Adviser was under the impression that the liberal consideration
policy “do[es] not apply to” attempts to modify a “voluntary administrative separation”—the
process Vasquez used to trigger his military discharge. A.R. at 6.
Vasquez now appeals and says the Board’s refusal to change his discharge to a medical
retirement violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. He contends,
3 among other things, that the Board abused its discretion by failing to apply liberal consideration.
Pl.’s Mot. Summ. J., ECF No. 14, at 10; see also Compl. ¶¶ 22–23. He wants the Court to vacate
the decision and remand for reconsideration of his request under the proper standard. Compl. ¶¶
26–27. The Secretary retorts that liberal consideration does not apply on these facts, and the
Board reached the right outcome. See Def.’s Mot. Summ. J., ECF No. 16, at 2. The parties
cross-moved for summary judgment, addressing this issue and the Board’s overall findings. See
Pl.’s Mot. Summ. J.; Def.’s Mot. Summ. J. The Court now turns to the motions.
II.
The Court has jurisdiction to review APA claims under 28 U.S.C. § 1331. Trudeau v.
Fed. Trade Comm’n, 456 F.3d 178, 185 (D.C. Cir. 2006). Summary judgment in APA cases
follows a different trajectory than in other civil cases. Truitt v. Kendall, 554 F. Supp. 3d 167,
174 (D.D.C. 2021). In APA cases, an agency has already made findings of fact, which are
frozen in place in the administrative record. Id. Because courts are generally limited to
reviewing the administrative record, they seldom have to decide whether disputed facts preclude
summary judgment. Id. Instead, “when faced with a summary-judgment motion on
an APA claim, the district court must determine as a matter of law whether the agency’s decision
was arbitrary, capricious, an abuse of discretion, or unlawful.” Id. (cleaned up). Put another
way, “[t]he entire case . . . is a question of law.” Am. Bioscience, Inc. v.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
VLADIMIR S. VASQUEZ,
Plaintiff,
v. Case No. 1:24-cv-1373 (TNM)
DANIEL P. DRISCOLL, in his official capacity as Secretary of the Army,
Defendant.
MEMORANDUM OPINION
Vladimir Vasquez requested early separation from the U.S. Army nearly two decades
ago. He believes the military erred by granting his discharge request instead of medically
retiring him because of Post-Traumatic Stress Disorder (“PTSD”). He asked the Army Board for
Correction of Military Records to change his discharge to a medical retirement, but it refused.
So Vasquez is suing the Secretary of the Army, 1 seeking a redo of the Board’s decision.
Both parties move for summary judgment. The focal point is whether the Board applied
the correct standard of review. Vasquez contends that the Board abused its discretion by failing
to give his request “liberal consideration” as required by statute and military policy. The
Secretary maintains that liberal consideration does not apply to Vasquez’s situation. The
Secretary is mistaken. So the Court will grant Vasquez’s motion for summary judgment and
vacate and remand the Board’s decision for reconsideration under the correct standard.
1 Defendant Daniel Driscoll replaced the former Secretary, Christine Wormuth. Under Federal Rule of Civil Procedure 25(d), when a public officer sued in an official capacity vacates the office while the action is pending, her successor is automatically substituted as a party. I.
Vasquez served in the Army from 2001 until 2007. Compl., ECF No. 1, ¶ 3. In 2007, he
and his wife were in a serious car accident. Compl. ¶ 11. Tragically, his wife did not survive.
Id. In the aftermath, he requested—and was granted—early administrative separation from the
military so he could raise his son. See Compl. ¶ 12; Administrative Record (“A.R.”), ECF No.
21, at 4, 7. This is commonly called a “hardship” discharge. See A.R. at 4. He was honorably
discharged in December 2007. Id.
The year after separating from the Army, Vasquez applied for disability with the
Department of Veterans Affair (“VA”) based on PTSD. Compl. ¶ 13. His PTSD stems from
two tours in Iraq, where he experienced “weekly mortar detonations at his base” and “helped
clean up human remains” in the wake of Improvised Explosive Device detonations. Compl.
¶¶ 6–7. The VA found that his service-connected PTSD qualified him for a 10% disability rating
effective December 7, 2007, and a 100% rating effective March 22, 2009. 2 Compl. ¶ 15.
In 2014, Vasquez asked the Board to modify his voluntary discharge and reclassify it as a
medical retirement based on PTSD. Compl. ¶ 16; see also A.R. at 129–30. The Board denied
his request. It found insufficient evidence that he had a condition rendering him unfit for
continued service—and thus eligible for medical retirement—when he separated. Compl. ¶ 17;
A.R. at 134–36.
Several years later in 2017, the Department of Defense (“DoD”) changed how the Board
evaluates discharge modification requests involving PTSD. Then-Under Secretary of Defense
2 A VA disability rating is different from a medical retirement determination. Medical retirement decisions fall outside the VA’s purview and turn on different criteria than VA disability ratings. See Def.’s Mot. Summ. J., ECF No. 16, 6–9 (explaining the framework for each).
2 Anthony Kurta issued a memorandum (the “Kurta Memo”) directing the Board to apply “liberal
consideration” to “discharge relief [requests] when the application for relief is based in whole or
in part on . . . PTSD.” Off. of the Under Sec’y of Def., Clarifying Guidance to Military
Discharge Review Boards and Boards for Correction of Military/Naval Record Considering
Requests by Veterans for Modification of Their Discharge Due to Mental Health Conditions,
Sexual Assault or Sexual Harassment (August 25th, 2017) at 1. Congress codified this liberal
consideration directive later that year. See 10 U.S.C. § 1552(h)(2)(B). By statute, the Board
must give “liberal consideration” when a veteran claims “that post-traumatic stress disorder . . .
potentially contributed to the circumstances resulting in [his] discharge.” Id.
So Vasquez tried again in 2022. Armed with new evidence—letters from his fellow
soldiers indicating that he showed signs of PTSD prior to separating, plus an additional 10% VA
rating for a traumatic brain injury—he asked the Board to reconsider its earlier decision and
apply liberal consideration. Compl. ¶ 18; A.R. at 6. The Board again denied his request and
maintained that the “evidence does not indicate the presence of a medical condition prior to the
applicant’s discharge that would have been a basis for referring him to the Disability Evaluation
System.” Compl. ¶ 19; A.R. at 8. The decision lists Vasquez’s evidence but does not discuss it
further. See A.R. at 4–5. In reaching its conclusions, the Board adopted the findings and
recommendations of a Medical Adviser who reviewed Vasquez’s medical and military records.
See A.R. at 8. The Medical Adviser was under the impression that the liberal consideration
policy “do[es] not apply to” attempts to modify a “voluntary administrative separation”—the
process Vasquez used to trigger his military discharge. A.R. at 6.
Vasquez now appeals and says the Board’s refusal to change his discharge to a medical
retirement violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. He contends,
3 among other things, that the Board abused its discretion by failing to apply liberal consideration.
Pl.’s Mot. Summ. J., ECF No. 14, at 10; see also Compl. ¶¶ 22–23. He wants the Court to vacate
the decision and remand for reconsideration of his request under the proper standard. Compl. ¶¶
26–27. The Secretary retorts that liberal consideration does not apply on these facts, and the
Board reached the right outcome. See Def.’s Mot. Summ. J., ECF No. 16, at 2. The parties
cross-moved for summary judgment, addressing this issue and the Board’s overall findings. See
Pl.’s Mot. Summ. J.; Def.’s Mot. Summ. J. The Court now turns to the motions.
II.
The Court has jurisdiction to review APA claims under 28 U.S.C. § 1331. Trudeau v.
Fed. Trade Comm’n, 456 F.3d 178, 185 (D.C. Cir. 2006). Summary judgment in APA cases
follows a different trajectory than in other civil cases. Truitt v. Kendall, 554 F. Supp. 3d 167,
174 (D.D.C. 2021). In APA cases, an agency has already made findings of fact, which are
frozen in place in the administrative record. Id. Because courts are generally limited to
reviewing the administrative record, they seldom have to decide whether disputed facts preclude
summary judgment. Id. Instead, “when faced with a summary-judgment motion on
an APA claim, the district court must determine as a matter of law whether the agency’s decision
was arbitrary, capricious, an abuse of discretion, or unlawful.” Id. (cleaned up). Put another
way, “[t]he entire case . . . is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d
1077, 1083 (D.C. Cir. 2001) (cleaned up).
Under the APA, a court must “hold unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). As relevant here, “[a]n agency’s decision is an
abuse of discretion if the agency has applied an incorrect legal standard in making its decision.”
4 Buffalo Field Campaign v. Zinke, 289 F. Supp. 3d 103, 109 (D.D.C. 2018) (citing Price v. Dist.
of Columbia, 792 F.3d 112, 114 (D.C. Cir. 2015)). If that happens, the remedy is to “set aside
the agency’s action and remand the case—even though the agency (like a new jury after a
mistrial) might later, in the exercise of its lawful discretion, reach the same result for a different
reason.” FEC v. Akins, 524 U.S. 11, 25 (1998). Courts have done precisely that in response to
flawed decisions by military correction boards. See, e.g., Penland v. Mabus, 181 F. Supp. 3d
100, 106 (D.D.C. 2016) (remanding because of a “legal error” by the Board for Correction of
Naval Records).
III.
The Kurta Memo requires the Board to liberally consider veterans’ requests to modify
their discharges because of PTSD. See Fisher v. United States, 402 F.3d 1167, 1177 (Fed. Cir.
2005) (“[T]he military is bound to follow its own procedural regulations should it choose to
promulgate them.”). A few years ago, an act of Congress codified this requirement. See 10
U.S.C. § 1552(h). Vasquez’s situation is covered by both: He wants the Board to modify his
discharge because he thinks it came about “for reasons related to” his “undiagnosed” PTSD.
A.R. at 2. Thus, the Board’s failure to apply the correct standard—liberal consideration—was an
abuse of discretion. See Buffalo Field Campaign, 289 F. Supp. 3d at 109.
The Medical Adviser, and by extension the Board, reasoned that Vasquez falls outside
the scope of the Kurta Memo and 10 U.S.C. § 1552(h) because he received a “voluntary
administrative separation.” A.R. at 6. The Secretary does not directly make this argument, but
he repeatedly hints that the voluntary nature of Vasquez’s discharge is relevant. See Def.’s Mot.
Summ. J. at 22; Def.’s Reply at 6. Yet it is unclear why. Neither the memo nor the statute
distinguishes between voluntary and involuntary discharges, and the plain text of both directs
5 liberal consideration for any discharge involving PTSD. 10 U.S.C. § 1552(h)(1) (“review of a
discharge”); Kurta Memo at 1 (“requests by veterans for modification of their discharges”). So
the Secretary has offered no reason to conclude that voluntary discharge foils the liberal
consideration mandate.
But what of a “separation” versus a “discharge”? Separation is just “[a] general term that
includes discharge” (as well as a few other options) and signals the end of a servicemember’s
time on active duty. See Enlisted Administrative Separations, DoD Instruction 1332.14, Encl. 6,
at 61. And the administrative separation provision applicable to Vasquez explicitly triggers a
“discharge.” See A.R. at 9 (quoting Army Regulation 635-200, Chapter 6-3); see also Enlisted
Administrative Separations, DoD Instruction 1332.14, Encl. 6, at 60 (“[D]ischarge” is the
“[c]omplete severance from all military status gained through enlistment.”). So neither the
voluntary nature of Vasquez’s discharge nor the fact that it was an administrative separation
takes it outside the ambit of 10 U.S.C. § 1552(h) and the Kurta Memo.
The Secretary’s remaining arguments are unpersuasive. He maintains that liberal
consideration applies “primarily to applications seeking discharge characterization upgrades.”
Def.’s Mot. Summ. J. at 22. Vasquez, in contrast, is asking the Board to convert his discharge
into a medical retirement rather than upgrade his service characterization. So the Secretary
reasons that liberal consideration is inapplicable. See id. Yet nothing in the plain text of the
Kurta Memo or the codifying statute limits liberal consideration to service characterization
upgrades. 3 See Doyon v. United States, 58 F.4th 1235, 1246 (Fed. Cir. 2023) (concluding the
3 An older DoD memo predating the Kurta Memo and 10 U.S.C. § 1552(h) did apply liberal consideration to discharge characterizations only. See Off. of the Under Sec’y of Def., Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (September 3, 2014).
6 same). The Kurta Memo means what it says: Liberal consideration “appl[ies] to any petition
seeking discharge relief” because of PTSD. Kurta Mem. at 3 (emphasis added). The trigger for
liberal consideration is not whether the relief sought is a characterization upgrade; it is whether
the “applications [are] based in whole or in part on matters related to . . . PTSD.” Id. Vasquez’s
request meets that criterion.
The Secretary next contends that “the Board need not apply liberal consideration to its
consideration of unfitness for medical disability retirement purposes.” Reply at 5. For this, he
points the Court to another DoD memorandum written after the Board’s decision—the “Vazirani
Memo.” See id. The Vazirani Memo creates a two-step framework for the Board to follow
when deciding whether to convert a discharge into a medical retirement. Off. of the Under Sec’y
of Def., Clarifying Guidance to Boards for Correction of Military/Naval Records Considering
Cases Involving Both Liberal Consideration Discharge Relief Requests and Fitness
Determinations (April 4, 2024) at 1. The first step just reiterates the existing requirements in
10 U.S.C. § 1552(h) and the Kurta Memo. It says the Board must “apply liberal consideration to
the [veteran’s] assertion that” PTSD “potentially contributed to the circumstances resulting in
their discharge” and then decide whether “any discharge relief . . . is appropriate.” Id.
The real import of the Vazirani Memo comes from its second step: “After making that
determination,” the Board must then “separately assess the individual’s claim of medical
unfitness for continued service due to that PTSD . . . as a discreet issue, without applying liberal
consideration to the unfitness claim.” Id. at 1–2 (emphasis added). But even under the Vazirani
Memo, the Board botched the first step by failing to apply liberal consideration when deciding
7 whether Vasquez had PTSD and whether that PTSD contributed to his discharge. 4 The
Secretary’s argument about fitness determinations 5 only kicks in at step two, which does nothing
to paper over the Board’s legal error in step one. Thus, the Vazirani Memo cannot save the
Board’s decision.
In sum, the Board applied the wrong legal standard by failing to give Vasquez’s evidence
liberal consideration. So “as a matter of law . . . the agency’s decision was . . . an abuse of
discretion.” Truitt, 554 F. Supp. at 174. As a remedy, Vasquez wants an order directing the
Board to medically retire him. See Pl.’s Reply at 14 (asking the Court to “order the correction of
Plaintiff’s military records”). But when the Board’s decision has a legal error, the proper course
is for the Court to order a redo of the decision under the correct standard. See PPG Indus., Inc.
v. United States, 52 F.3d 363, 365 (D.C. Cir. 1995). So the Court will grant only the alternative
relief Vasquez requests and remand the Board’s decision. See Pl.’s Reply at 14–15 (requesting
“[in] the alternative, . . . remand . . . to the [Board] with specific instructions to apply the correct
legal standard”). On remand, the Board must give Vasquez’s evidence liberal consideration.
***
It is not lost on the Court that liberal consideration is unlikely to get Vasquez where he
wants to go. Despite the Board’s legal error, it is hard to parse out any injustice in Vasquez’s
situation. He requested discharge, so the Army discharged him. The Court is hard pressed to
credit his assertion, years later, that the Army made a mistake by giving him what he sought.
4 Because the outcome is the same either way, the Court does not address Vasquez’s contention that the Court cannot consider the Vazirani Memo because it post-dates the Board’s decision. See Pl.’s Opp’n, ECF No. 18, at 9. 5 The Court does not reach the second step of the framework and takes no position on whether the Vazirani Memo is correct that liberal consideration under 10 U.S.C. § 1552(h) does not apply to fitness determinations. Of course, no agency memo could trump Section 1552(h).
8 Such matters are beyond the scope of the Court’s review though. “Under settled principles of
administrative law, when a court reviewing agency action determines that an agency made an
error of law, the court’s inquiry is at an end: the case must be remanded to the agency for further
action consistent with the corrected legal standards.” PPG Indus., 52 F.3d at 365. Even if his
underlying claim is dubious, Vasquez is entitled to liberal consideration of his evidence. And he
did not get that.
IV.
For these reasons, the Court will grant Plaintiff’s Motion for Summary Judgment, deny
Defendant’s Cross-Motion for Summary Judgment, and vacate and remand to the Board for
reconsideration. A separate Order will issue today.
2025.07.07 15:44:27 -04'00' Dated: July 7, 2025 TREVOR N. McFADDEN United States District Judge