Ryan Bussey v. Daniel Driscoll

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RYAN BUSSEY, No. 23-35588

Plaintiff-Appellant, D.C. No. 2:21-cv-

00346-DKG

v.

DANIEL P. DRISCOLL, in his OPINION

official capacity as Secretary of the

Army,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Idaho

Debora K. Grasham, Magistrate Judge, Presiding

Argued and Submitted August 23, 2024

Portland, Oregon

Filed March 12, 2025

Before: Evan J. Wallach, * Morgan Christen, and Andrew

D. Hurwitz, Circuit Judges.

Opinion by Judge Wallach

*

The Honorable Evan J. Wallach, United States Circuit Judge for the

Federal Circuit, sitting by designation.

2 BUSSEY V. DRISCOLL

SUMMARY **

Correction of Military Records

On Ryan Bussey’s appeal from the district court’s

summary judgment against him in his action under the

Administrative Procedure Act seeking review of the Army

Board for Correction of Military Records’ denial of his

petition to upgrade his military discharge status from Bad

Conduct Discharge to Honorable Discharge, the panel

vacated the district court’s summary judgment for the

Secretary of the United States Army and remanded for the

Board to reconsider the petition.

Bussey received a Bad Conduct Discharge for being

found guilty of wrongful sexual conduct. He sought to

upgrade his discharge on the ground that combat-induced

Post-Traumatic Stress Disorder (“PTSD”) contributed to his

conduct. In denying the petition, the Board agreed that

Bussey had PTSD, but concluded that it was not a mitigating

factor for the crime of conviction.

When a request for a correction is based on

combat-induced PTSD, Congress has instructed the Board to

review discharge upgrade requests with liberal consideration

to the claimant that PTSD potentially contributed to the

circumstances resulting in the discharge.

The panel held that the Board erred in not considering all

the circumstances resulting in Bussey’s discharge, instead

focusing narrowly on whether PTSD caused the legal

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BUSSEY V. DRISCOLL 3

elements of the crime of conviction. Relatedly, it failed to

give liberal consideration to Bussey’s PTSD-based

claim. The Board should have analyzed under a lenient

evidentiary standard whether PTSD potentially contributed

to the facts, events, and conditions that led to Bussey

engaging in the non-consensual sexual activity.

The panel vacated the district court’s judgment and

remanded this case to the Board to reconsider Bussey’s

upgrade request under the appropriate standard. The panel

instructed that on remand, after resolving all such doubts and

inferences in favor of Bussey, if the Board finds that PTSD

contributed to the circumstances resulting in Bussey’s

discharge, even if PTSD did not cause him to commit the

crime, the liberal consideration standard allows the Board to

grant the requested relief.

COUNSEL

Sean P. Griffin (argued) and Travis J. West, West & Dunn

LLC, Waunakee, Wisconsin; Matthew Z. Crotty, Riverside

NW Law Group PLLC, Spokane, Washington; for Plaintiff-

Appellant.

James P. Schaefer (argued), Assistant United States

Attorney; Joshua D. Hurwit, United States Attorney; Office

of the United States Attorney, United States Department of

Justice, Boise, Idaho; for Defendant-Appellee.

4 BUSSEY V. DRISCOLL

OPINION

WALLACH, Circuit Judge:

This case presents two competing imperatives for the

United States Army. Both Congress and the Army have

made extensive efforts to address the “scourge” of sexual

misconduct in the military. See, e.g., Klay v. Panetta,

758 F.3d 369, 376 (D.C. Cir. 2014) (acknowledging

Congress’s efforts). On the other hand, seeking to address

the previously unacknowledged impact of Post-Traumatic

Stress Disorder (“PTSD”) on veterans, Congress has

instructed the Army Board for Correction of Military

Records (“Board”) to review discharge upgrade requests

with “liberal consideration” to whether PTSD “potentially

contributed to the circumstances resulting in” discharges.

10 U.S.C. § 1552(h)(2)(B). The statute covers cases in

which sexual misconduct precipitated the discharge.

I. BACKGROUND

A. Bussey’s Military Service and Discharge

Ryan Bussey volunteered to join the Army in 2008. His

commanders viewed him as an “extraordinary” soldier, who

would “run through a brick wall for” his platoon. In 2009,

he was deployed to Afghanistan, where he was extensively

involved in combat and witnessed severe human suffering.

In a now familiar story, after returning from his

deployment, Bussey suffered from then-undiagnosed PTSD.

His drinking increased, and although Bussey had no prior

history of wrongdoing, he was cited by military police for

larceny, assault while under the influence of alcohol, and

possession of drug paraphernalia.

BUSSEY V. DRISCOLL 5

In January 2010, after months of deteriorating, Bussey

was accused by a married civilian woman of sexual assault.

Following a night of dancing, Bussey and the civilian

woman had returned to Bussey’s barracks. After she

declined Bussey’s request to “cuddle,” she said he picked her

up, took her to the bed, and began removing her clothing.

She said she repeatedly told Bussey to stop and that she did

not want to have sex with him, but he forcibly held her down

and penetrated her.

Bussey was charged under the Uniform Code of Military

Justice (“UCMJ”) with rape, adultery, aggravated sexual

assault, and wrongful sexual contact. A court-martial jury

returned a guilty verdict for wrongful sexual contact and

adultery, and a not guilty verdict for rape and aggravated

sexual assault. 1 Bussey was sentenced to six months of

confinement, required to register as a sex offender, and

received a Dishonorable Discharge. On the recommendation

of the presiding judge, the general court-martial convening

authority modified Bussey’s discharge to a Bad Conduct

Discharge (“BCD”). The Army Court of Criminal Appeals

set aside the adultery conviction, but did not disturb

Bussey’s sentence.

Following his confinement and discharge, Bussey

endured debilitating symptoms of PTSD, including anxiety,

depression, suicidal and homicidal ideation, and severe

agitation and reactivity. He was paralyzed and rendered

permanently wheelchair-bound by a high-speed motorcycle

1

At the time of the conviction, the UCMJ defined wrongful sexual

contact as “engag[ing] in sexual contact with another person without that

other person’s permission.” 10 U.S.C. § 920(m) (Effective October 1,

2007).

6 BUSSEY V. DRISCOLL

accident. At times homeless, he lived out of his truck and

bathed in a river.

B. Bussey’s Discharge Upgrade Request

In 2016, Bussey petitioned the Board to upgrade his

discharge to “Honorable,” so that he could obtain Veterans

Affairs education and medical benefits for which a BCD

renders him ineligible. The Army opposed the upgrade.

Bussey and the Army provided the Board with

competing expert reports on whether PTSD contributed to

the conduct that led to his discharge. Bussey framed the

“circumstances” that led to his discharge as a high-risk

sexual encounter. His expert, psychologist Dr. Ramona

Burdine, who had treated Bussey since he was a child and

who had been treating PTSD patients for nine years, cited

two studies linking PTSD to high-risk sexual behavior

(“HRSB”). These behaviors, she explained, are natural

byproducts of PTSD’s undisputed symptoms, such as

negative cognitions and arousal. The Army narrowly framed

the “circumstances” of Bussey’s discharge as the legal

elements of his crime of conviction and offered expert

reports from two in-house psychologists opining that

“[w]rongful sexual contact (i.e. unwanted sexual contact),”

the crime for which Bussey was convicted, “is not part of the

natural history or sequelae of PTSD.”

The Board denied Bussey’s petition. It agreed that

Bussey had PTSD but concluded that it was not “a mitigating

factor” for the crime of conviction. The Board conceded that

“PTSD might be considered a mitigating factor for engaging

in HRSBs,” but, accepting the Army’s argument, said

Bussey was not discharged because he engaged in a HRSB.

Rather, he was discharged because “he was convicted for

unlawfully touching a woman in a sexual manner without

BUSSEY V. DRISCOLL 7

her consent,” and the Board rejected his petition because

Bussey did not present any evidence “that PTSD influences

a person to engage in” a “non-consensual sexual activity.”

After exhausting administrative remedies, Bussey

sought review of the Board’s decision in the district court

under the Administrative Procedure Act (“APA”), which

allows a court to “hold unlawful and set aside agency action”

that is “not in accordance with law.” 5 U.S.C. § 706(2)(A).

The district court granted the Army summary judgment.

Bussey timely appealed.

II. STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 and review

the summary judgment de novo. Aageson Grain & Cattle v.

U.S. Dep’t of Agric., 500 F.3d 1038, 1041 (9th Cir. 2007).

The Board’s decisions “are subject to judicial review.”

Chappell v. Wallace, 462 U.S. 296, 303 (1983). “If the

[Board] construed the law correctly,” we review its decision

“under the APA’s deferential standards.” Grand Canyon

Univ. v. Cardona, 121 F.4th 717, 723 (9th Cir. 2024); see

also Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514

(D.C. Cir. 1989) (requiring “unusually deferential

application of the arbitrary or capricious standard” to

decisions regarding the correction of military records

(cleaned up)). However, we do not defer to the Board’s

interpretation of the governing statutes, see generally Loper

Bright Enters. v. Raimondo, 603 U.S. 369 (2024), and if it

“failed to apply the correct legal standards, its decisions must

be set aside,” Grand Canyon Univ., 121 F.4th at 727.

III. DISCUSSION

On behalf of the Secretary of the Army, the Board “may

correct any military record,” including a discharge, “to

8 BUSSEY V. DRISCOLL

correct an error or remove an injustice.” 10 U.S.C.

§ 1552(a)(1); see also 32 C.F.R. § 581.3. When a request

for a correction is based on combat-induced PTSD, the

Board must “review the claim with liberal consideration to

the claimant that [PTSD] . . . potentially contributed to the

circumstances resulting in the discharge.” 10 U.S.C.

§ 1552(h)(2)(B); see id. at § 1552(h)(1). Here, the Board

committed two legal errors. First, it did not consider all “the

circumstances resulting in” Bussey’s discharge, instead

focusing narrowly on whether PTSD caused the legal

elements of the crime of conviction. Relatedly, it failed to

give “liberal consideration” to Bussey’s PTSD-based claim.

We address both errors in turn.

A. The Board erred by not considering all the

“circumstances” resulting in the discharge.

Bussey received a BCD as part of his sentence for

wrongful sexual contact. That conviction of course caused

his discharge. But the statute requires the Board focus not

only on the but-for cause of the discharge; it must also ask

whether PTSD contributed to the circumstances that led to

the discharge. In rejecting Bussey’s application, the Board

ignored its legal duty to address those circumstances.

The “circumstances resulting in” a discharge are not

simply the but-for cause of the crime that led to discharge.

A “circumstance” is an “accompanying or accessory fact,

event, or condition.” United States v. Stewart,

420 F.3d 1007, 1020 (9th Cir. 2005) (quoting

Circumstances, Black’s Law Dictionary (8th ed. 2004)).

When a veteran’s conviction results in a discharge, the

“circumstances” the Board must consider include not just

elements of the conviction itself, but the facts, events, and

conditions that led to the conviction. Id. For this reason,

BUSSEY V. DRISCOLL 9

multiple Department of Defense memoranda instruct the

Board to review petitions citing combat-related PTSD

holistically. 2

That approach requires more than a technical focus on

the elements of the offense that led to the discharge.

Assume, for example, that Bussey had received a BCD

following conviction by court martial for operating a vehicle

“while drunk,” 10 U.S.C. § 913(a)(2), and petitioned the

Board for a discharge status upgrade, arguing PTSD

contributed to the discharge. The authoritative DSM-5 did

not list driving under the influence of alcohol as a sequela of

PTSD at the time of Bussey’s petition. But a Board would

have erred if it denied the petition on that narrow basis,

because the “circumstances” of his discharge are broader

than his crime of conviction and must be considered. See

Stewart, 420 F.3d at 1020. The circumstances include the

reasons he drank excessively on that day; the reckless

decision to drive after drinking; and, presumably, other facts,

events, and conditions that led to the conviction. Under

§ 1552(h)(2)(B), the Board is legally required to consider

whether PTSD “potentially contributed to” these

“circumstances.”

Here, the Board denied Bussey’s upgrade request

because Bussey did not show “that PTSD influences a

person to engage in” a “non-consensual sexual activity.”

2

See, e.g., Off. of the Sec’y of Def., Supplemental Guidance to Military

Boards of Military/Naval Records Considering Discharge Upgrade

Requests by Veterans Claiming Post Traumatic Stress Disorder (Sept. 3,

2014) (“Hagel Memorandum”); Off. of the Under Sec’y of Def.,

Clarifying Guidance to Military Discharge Review Boards (Aug. 25,

2017) (“Kurta Memorandum”); Off. of the Under Sec’y of Def.,

Guidance to Military Discharge Review Boards (July 25, 2018) (“Wilkie

Memorandum”).

10 BUSSEY V. DRISCOLL

Even assuming the accuracy of that statement, the Board too

narrowly framed its inquiry. While non-consensual sexual

activity was the legal cause of Bussey’s discharge, it is

plainly not the sole circumstance resulting in the discharge.

See 10 U.S.C. § 1552(h)(2)(B). The Board should have

analyzed whether PTSD “potentially contributed” to the

facts, events, and conditions that led to Bussey engaging in

this non-consensual sexual activity. Id. The Board’s factual

decision on that question would be entitled to considerable

deference. But because the Board did not address that

question, it “failed to apply the correct legal standards” and

“its decisions must be set aside.” Grand Canyon Univ., 121

F.4th at 727.

B. The Board’s review lacked “liberal

consideration” of the effect of PTSD on the

conduct that led to the discharge.

Congress has expressly instructed the Board, when

reviewing discharge upgrade requests based on combat-

induced PTSD, to give “liberal consideration” to whether

PTSD “potentially contributed to the circumstances

resulting in the discharge.” 10 U.S.C. § 1552(h)(2)(B)

(emphasis added). The Board failed to do that here.

Although the statute does not expressly define “liberal

consideration,” the meaning of these two words is well

understood. See Stewart, 420 F.3d at 1020 (“We turn first to

the plain meaning of the statute . . . .”). “Consideration” is

defined as “continuous and careful thought.” Consideration,

Webster’s Third New International Dictionary 484 (2002).

As a condition, state, or opinion, “liberal” is defined as “not

restricted; expansive; tolerant,” Liberal, Black’s Law

Dictionary (10th ed. 2014), and as an interpretation or

construction, “liberal” is defined as “not strict or literal;

BUSSEY V. DRISCOLL 11

loose,” id.; see also Doyon v. United States, 58 F.4th 1235,

1238–39 (Fed. Cir. 2023) (stating § 1552 imposes “the more

lenient liberal consideration evidentiary standard”). 3 In the

same tone, we have described a “liberal” pleading standard

as “lenient.” Austin v. Univ. of Or., 925 F.3d 1133, 1137 n.4

(9th Cir. 2019).

Thus, “liberal consideration” is a lenient evidentiary

standard, that is not strict or literal, for reviewing the

veteran’s claim that PTSD “potentially contributed to the

circumstances resulting in the discharge.” 10 U.S.C.

§ 1552(h)(2)(B). The Board simply did not follow this

standard. 4 The Board here did not consider, let alone under

a lenient evidentiary standard, how Bussey’s PTSD

“potentially contributed to the circumstances” that led to his

3

See also Interpretation, Black’s Law Dictionary (10th ed. 2014)

(defining “liberal interpretation” as having “the object of effectuating the

spirit and broad purpose of the text or producing the result that the

interpreter thinks desirable,” and defining “liberal construction” as

“resolv[ing] all reasonable doubts in favor of the applicability of the

statute to the particular case.” (citations omitted)).

4

In briefing and at argument, the Army maintained its position that

because the Board applied the guidance from applicable Defense

Department memoranda on “liberal consideration” under 10 U.S.C.

§ 1552, see supra note 2, Bussey’s BCD was not an “injustice” under the

statute. “[W]e resolve this case based on statutory text alone.” Rudisill

v. McDonough, 601 U.S. 294, 314 (2024); Stewart, 420 F.3d at 1020.

We need not and do not defer to the Board’s interpretation of the statute.

See Loper Bright, 603 U.S. at 413. Here, the Board failed to review

Bussey’s claim with the “liberal consideration” evidentiary standard

under any construction or interpretation of § 1552(h)(2)(B). The Board

failed to discuss the statute in a meaningful way and failed to mention

subsection (h)(2)(B) at all. See Guerrero v. Stone, 970 F.2d 626, 638–

39 (9th Cir. 1992) (concluding the Board violated the APA by refusing

to follow its statutory mandate); 5 U.S.C. § 706(2)(A) (providing that an

agency decision may be set aside if it is “not in accordance with law.”).

12 BUSSEY V. DRISCOLL

BCD. Rather it simply adopted the Army psychologists’

opinions that PTSD does not cause the legal elements of the

crime of conviction. That narrow approach is the antithesis

of “liberal consideration.” See 10 U.S.C. § 1552(h)(2)(B).

“Liberal consideration” requires the Board to resolve

doubts on the § 1552(h)(2) inquiry in favor of the veteran.

On remand, after resolving all such doubts and inferences in

favor of Bussey, if the Board finds that PTSD “contributed

to the circumstances resulting in [Bussey’s] discharge,” even

if PTSD did not cause him to commit the crime, the “liberal

consideration” standard allows the Board to grant the

requested relief. 5

IV. CONCLUSION

The Board failed to consider the full aperture of

“circumstances resulting in” Bussey’s “discharge,” and

failed to give “liberal consideration” to Bussey’s claim that

his PTSD “contributed to” those circumstances. 10 U.S.C.

§ 1552(h)(2)(B). We vacate the district court’s judgment

and remand this case to the Board to reconsider Bussey’s

upgrade request under the appropriate standard.

VACATED AND REMANDED.

5

To the extent the Board offered other rationales for denying Bussey’s

upgrade request, we find those rationales are not “completely

independent” from its erroneous § 1552(h)(2)(B) analysis and therefore

decline to address them. Grand Canyon Univ., 121 F.4th at 727.