Federal Circuit Holds Liberal Consideration Applies to Military Fitness Determinations for Medical Retirement
Court Rejects Government’s Attempt to Limit Liberal Consideration and Holds Combat Duties Cannot Be Ignored When Assessing Fitness
FOR IMMEDIATE RELEASE: July 17, 2026
ARLINGTON, VA — On July 16, 2026, in Bee v. United States, the United States Court of Appeals for the Federal Circuit ruled in favor of William Bee, a combat veteran, who was wrongfully denied medical retirement. Mr. Bee is represented by the National Veterans Legal Services Program (NVLSP) and Latham & Watkins LLP.
Mr. Bee served as an Infantry Marine with the rating of Infantry Unit Leader, deploying to Afghanistan four times. During his final deployment in Afghanistan, a massive explosion caused a building to collapse on him and his unit. Two Marines under his command were killed, others were seriously injured, and Mr. Bee was knocked unconscious. He was later diagnosed with Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) and was awarded the Purple Heart.
Despite his debilitating combat injuries, Mr. Bee was not referred into the military disability evaluation system. Instead, he was reassigned to non-operational positions, first supervising a urinalysis program and then as an instructor for Navy chaplains and medics. Post-discharge, the VA awarded a 90% disability rating for his PTSD and TBI.
Years later, Mr. Bee applied to the Board for Correction of Naval Records (“Board”) for retroactive medical retirement. A veteran who is medically retired is entitled to monthly retirement payments and military medical care (“Tricare”) for the veteran and the veteran’s spouse and dependent children. The Board denied his request and the Court of Federal Claims affirmed that decision. The Federal Circuit’s July 16, 2026 decision vacated that judgment. The Court made two findings of broad significance.
First, the Federal Circuit held that the statutory liberal consideration standard enacted by Congress applies to fitness determinations in military disability cases. Following the victory of NVLSP and Latham in Doyon v. United States, in which the Federal Circuit held liberal consideration applies to medical retirement claims, the Department of Defense (DoD) asserted that liberal consideration did not apply to the fitness determinations made as part of deciding those medical retirement claims. The Federal Circuit forcefully rejected DoD’s position as contrary to the controlling statute, 10 U.S.C. § 1552(h), stating:
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 interpret the law; we do not write it.
The Federal Circuit concluded that liberal consideration is “a lenient evidentiary standard” to be applied “when considering whether the servicemember showed he was unfit for duty.”
Second, the Federal Circuit held that the Board legally erred when it failed to identify the duties of an Infantry Unit Leader, analyze whether Mr. Bee could reasonably perform those duties, or consider each of the four statutory requirements under 10 U.S.C. § 3304 in making its determination. The Court rejected the government’s limitation of its analysis to Mr. Bee’s role as an instructor of medics and chaplain in a non-combat, garrison environment rather than to those reasonably expected of an Infantry Unit Leader.
The Court remanded the case back to the Board for further proceedings consistent with the opinion.
“The military has been disregarding and improperly limiting the Federal Circuit’s holding in Doyon that liberal consideration applies to medical retirement. This decision removes any doubt that the branches must utilize the liberal consideration standard for fitness determinations,” stated NVLSP Senior Managing Attorney Esther Leibfarth. “This ruling further prohibits the military from disregarding combat tasks for servicemembers who have been rendered unable to perform those tasks due to their traumatizing combat service. We are gratified that the Federal Circuit has issued this incredibly important decision for combat veterans, which is also applicable for survivors of Military Sexual Trauma.
“We are proud to continue the important work we began in Doyon and with other matters of ensuring that servicemembers receive the benefits and considerations to which they are entitled under law,” said Darryl Steensma, counsel at Latham & Watkins.
In addition to Ms. Leibfarth, the NVLSP team includes Director of Lawyers Serving Warriors® Rochelle Bobroff and Staff Attorney Matthew Handley.
The Latham team includes Darryl H. Steensma, Kyle R. Jefcoat, Ashley K. Gebicke, and Jack Ring. Former associate Michael Clemente argued the case for Mr. Bee.
Hunton Andrews Kurth LLP filed an amicus brief on behalf of Protect our Defenders and the Service Women’s Action Network explaining that the narrowing of liberal consideration would prejudice thousands of military sexual assault survivors. Sidley Austin LLP filed an amicus brief on behalf of four veterans who had combat specialties when in the military, including veterans who received the Medal of Honor, Purple Heart, Combat Action Ribbon, and other combat awards. The brief highlighted the effect of the lower court ruling on the military community, especially those who serve in combat jobs.
About The National Veterans Legal Services Program (NVLSP)
The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 18 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law. NVLSP’s success in these lawsuits has resulted in more than $7.2 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation’s definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information, go to nvlsp.org.
About Latham & Watkins
Latham & Watkins is a leading global law firm that brings together exceptional legal talent in financial centers around the world to advise on complex transactions, litigation, and regulatory matters. The firm’s deep market and product knowledge, industry experience, vast scale, and commitment to innovation and excellence help clients navigate their most critical challenges and achieve their goals.
Media contacts:
For NVLSP: Patty Briotta, office 202-621-5698, patty@nvlsp.org
For Latham: Jessica Allen, office 212-906-293, jessica.allen@lw.com