In Doyon v. United States, the Court of Appeals for the Federal Circuit held that liberal consideration under 10 U.S.C. 1552(h) and the Kurta memorandum applied to military disability retirement pay cases involving PTSD claims. However, the Department of Defense has tried to limit the effect of that decision. In its Vazirani memorandum, DoD asserts that liberal consideration applies only to the change in characterization of service and not to the unfitness determination.
Court of Federal Claims Chief Judge Elaine Kaplan disagreed with the Vazirani memorandum in a recent opinion. In footnote 10 to her opinion in Thomas v. United States, Judge Kaplin wrote that "principles of liberal consideration do apply to fitness claims." It is not clear however that all the judges of the Court of Federal Claims agree. In Jeanpierre v. United States, Judge Lerner said there remained "some debate" about the issue even after Thomas.
The Thomas decision was handed down on February 13, 2025 and is on the Court's website.
Court of Federal Claims Chief Judge Elaine Kaplan disagreed with the Vazirani memorandum in a recent opinion. In footnote 10 to her opinion in Thomas v. United States, Judge Kaplin wrote that "principles of liberal consideration do apply to fitness claims." It is not clear however that all the judges of the Court of Federal Claims agree. In Jeanpierre v. United States, Judge Lerner said there remained "some debate" about the issue even after Thomas.
The Thomas decision was handed down on February 13, 2025 and is on the Court's website.