Latham Wins Precedential Federal Circuit Victory for Combat‑Wounded Veteran
Alongside longtime pro bono partner National Veterans Legal Services Program (NVLSP), and building on its earlier victories for US veterans and servicemembers, Latham & Watkins secured a landmark victory for servicemembers with service‑connected medical conditions on July 16, 2026. The precedential decision from the United States Court of Appeals for the Federal Circuit holds that the military must apply the “more lenient” evidentiary standard of “liberal consideration” to fitness determinations in military disability cases for servicemembers suffering from traumatic brain injuries and post‑traumatic stress disorder (PTSD), from combat and/or from military sexual trauma.
NVLSP and Latham represented William Bee, an infantry Marine who deployed to Afghanistan four times, including a final deployment during which he suffered a traumatic brain injury in an IED explosion that collapsed a building on him and killed two Marines under his command. Mr. Bee was later diagnosed with traumatic brain injury (TBI) and PTSD and awarded the Purple Heart. Despite his debilitating combat injuries, Mr. Bee was never referred for military disability evaluation. Several months following his voluntary discharge, the VA awarded Mr. Bee a 90% combined disability rating for his PTSD and TBI.
A servicemember who is medically retired is entitled to monthly retirement payments and military medical care for the member, their spouse, and dependent children. In 2018, Mr. Bee filed a petition with the Board for Correction of Naval Records (Board) requesting that his discharge be corrected to reflect medical retirement based on his conditions. After the Board denied Mr. Bee’s request, Latham appealed to the Court of Federal Claims, resulting in a remand to the Board for reconsideration. The Board again denied Mr. Bee’s request. The Court of Federal Claims subsequently affirmed that denial, and Mr. Bee appealed to the Federal Circuit. On July 16, 2026, the Federal Circuit vacated the lower court’s judgment and remanded the case for further proceedings consistent with its opinion.
The Federal Circuit’s decision addressed several issues of broad significance for the military and veteran community. The Court held that the statutory “liberal consideration” standard set forth in 10 U.S.C. § 1552(h) extends to the fitness determination military corrections boards make to determine whether a servicemember is entitled to medical disability retirement pay. This significant ruling builds on the earlier victory of a Latham and NVLSP team in Doyon v. United States (2023), in which the Federal Circuit held that liberal consideration applied to such servicemembers’ petitions for correction to the narrative reason for their discharge. Citing Marbury v. Madison, the Federal Circuit explained that “[t]he 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 further clarified that liberal consideration is “a lenient evidentiary standard” and includes consideration of several concepts detailed in a Department of Defense memorandum on TBI and PTSD, from combat and/or military sexual trauma.
The Federal Circuit also held that a military correction board must (i) specifically identify the duties that are to be reasonably expected of a servicemember’s rating, (ii) analyze whether the servicemember can reasonably perform those duties, and (iii) consider other applicable factors, including a servicemember’s deployability.
The pro bono team at Latham included partner Kyle Jefcoat, counsel Darryl Steensma, associates Ashley Gebicke and Jack Ring, and former associate Michael Clemente, who argued the appeal. The team received invaluable assistance from paralegals Chantel Lacombe, Olga Baeza, and Rachel Jaffe. National Veterans Legal Services Program’s Rochelle Bobroff, Esther Leibfarth, and Matthew Handley served as co‑counsel.