By Kevin Courtney, Esq. | Former USMC Judge Advocate | California Attorney
If a review board denied your discharge upgrade application, you may have seen the phrase “liberal consideration” scattered throughout its written decision. You may have assumed the board applied the standard. In March 2026, a federal court in New Hampshire found that one board did not — and vacated its decision entirely.
In Machado v. Driscoll, 2026 U.S. Dist. LEXIS 65055 (D.N.H. March 26, 2026), U.S. District Judge Paul Barbadoro granted a combat veteran’s motion for summary judgment and remanded his case after finding that the Army Discharge Review Board had paid “lip service” to liberal consideration without actually applying it. The board had used the phrase. It had not done the work.
This post explains what the liberal consideration discharge upgrade standard actually requires, how boards routinely fail to apply it, what Machado means for veterans who have already been denied, and what you can do about it.
What Is Liberal Consideration?
Liberal consideration is the legal standard that governs how military discharge review boards evaluate applications from veterans whose service-connected mental health conditions may have contributed to the misconduct that led to their discharge.
The standard traces to two Department of Defense memoranda. In September 2014, then-Secretary of Defense Chuck Hagel directed discharge review boards to give “liberal consideration” to veterans applying for upgrades based on post-traumatic stress disorder (PTSD) or PTSD-related conditions. In August 2017, then-Acting Under Secretary of Defense A.M. Kurta expanded and clarified the standard to cover PTSD, traumatic brain injury (TBI), military sexual trauma (MST), and other mental health conditions.
Congress codified the standard in 10 U.S.C. § 1553(d)(3). Under that statute, any veteran whose application relies in whole or in part on PTSD or TBI as supporting rationale is entitled to review with liberal consideration that those conditions “potentially contributed to the circumstances resulting in the discharge.”
The Ninth Circuit defined the standard precisely in Bussey v. Driscoll, 131 F.4th 756 (9th Cir. 2025): liberal consideration is a “lenient evidentiary standard” that is “not strict or literal.” It requires boards to resolve doubts and inferences in favor of the veteran. For more on Bussey and its implications, see our analysis of the Bussey v. Driscoll decision. A board that reaches a denial without genuinely wrestling with the evidence does not satisfy the standard.
The Four Questions Every Board Must Answer
The Kurta Memorandum established a four-question framework that every discharge review board and correction board must work through when a veteran raises PTSD, TBI, or MST:
- Did the veteran have a condition or experience that may excuse or mitigate the discharge?
- Did that condition exist or that experience occur during military service?
- Does that condition or experience actually excuse or mitigate the discharge?
- Does that condition or experience outweigh the discharge?
As a former Marine Corps Judge Advocate, I can tell you that Questions 1 and 2 are rarely the fight. Boards generally acknowledge a service-connected PTSD or TBI diagnosis. Questions 3 and 4 are where applications succeed or fail — and where boards most often go wrong.
The Kurta Memorandum makes clear that liberal consideration does not mandate an upgrade in every case. But it requires a genuine, case-by-case analysis. Even “significant misconduct” can be sufficiently justified or outweighed by the facts and circumstances. The board’s job is to actually engage that question — not assume the answer in advance.
The Gap Between Policy and Practice — What Boards Get Wrong
The liberal consideration standard has been in place for over a decade. It has not translated into consistent results.
A 2025 report from the U.S. Government Accountability Office found that the Department of Defense reviewed more than 21,000 discharge upgrade cases under liberal consideration standards between 2018 and 2024. The grant rate varied dramatically: from approximately 18 percent to nearly 49 percent, depending on the board and the service branch. The GAO concluded that boards were still failing to apply the standard consistently — particularly with respect to VA documentation and veteran testimony.
In practice, the failures tend to look the same way. A board acknowledges your PTSD diagnosis. Then, in two sentences, it concludes that your misconduct falls outside the “natural history” of PTSD — without ever engaging the medical evidence you submitted. Or the board’s own medical advisor says your condition is not a mitigating factor, the board “concurs,” and the decision never addresses your treating clinician’s opinion, the VA’s service-connection findings, or the published research connecting PTSD to the specific conduct at issue.
The board recites the phrase “liberal consideration” in its headings. But it provides no analysis that reflects it.
As the court in Machado v. Driscoll put it, paying “lip service” to the standard while failing to engage the evidence is “anything but” liberal consideration.
If your discharge upgrade was denied and you believe the board did not genuinely engage your PTSD or TBI evidence, Courtney Military Law Group can evaluate your case. Contact us to discuss your options before you run out of time.
What Machado v. Driscoll (2026) Tells Us About How the Standard Should Work
Jeffrey Machado enlisted in the Army in November 2010. In December 2012, his unit — the 1st Armored Division — deployed to Afghanistan in support of Operation Enduring Freedom. Machado served on his company’s Intelligence Support Team, accompanying patrols to collect and verify battlefield intelligence his unit used to interdict IED emplacements and protect troop movements. He earned multiple awards for his performance in that role.
In May 2013, a nearby unit triggered multiple IEDs in a village, killing several soldiers and leaving many others as double and triple amputees. An ensuing patrol by Machado’s own company detonated another IED, injuring four more soldiers. Amid the chaos, Machado ran into the blast zone to help rescue the wounded. He then spent the next eight days collecting the remains of his fellow soldiers.
The following month, Machado collapsed from dehydration, struck his head on a military vehicle as he fell, and lost consciousness for approximately ten minutes. In the weeks that followed, he struggled to concentrate and was slow to react. He received no medical treatment for these symptoms while deployed.
By the time his unit returned to Fort Bliss in August 2013, something had shifted. Machado described becoming “cold and bitter.” He drew a knife on an Afghan police officer during a patrol. Then he stood on found munitions to photograph serial numbers at close range. He could not sleep. Back home, he sometimes woke with a gun in his hand. He made several attempts to take his own life. When he reported feeling “jumpy and paranoid” to an Army doctor, the doctor told him his feelings were normal and would pass in a month.
After a transfer to Schofield Barracks in Hawaii, Machado’s young marriage deteriorated under the weight of untreated PTSD and suicidal ideation. The Army ultimately charged him with domestic violence, criminal threats against his wife, and violating a military protective order twice while psychiatrically hospitalized — on one occasion, according to Machado, because his wife had texted him threatening to divorce him, and he responded. Facing court-martial, he requested discharge in lieu of trial in September 2014 and left the Army with an Other Than Honorable characterization.
After separation, a veterans’ outreach program connected him to the Red Sox Foundation’s Home Base Program at Massachusetts General Hospital. Clinicians diagnosed him with major depressive disorder, PTSD, and TBI. In 2016, the VA found his discharge “honorable for VA purposes” because he was “insane at the time” of the misconduct — a formal finding that entitled him to VA benefits despite his OTH characterization. In 2017, the VA assigned him a 100-percent service-connected disability rating for PTSD and TBI.
Machado applied to the Army Discharge Review Board three times over nine years. The Board denied him each time. Its final 2022 decision — issued after a mandatory reconsideration under the Kennedy v. Whitleyclass action settlement — concluded in two sentences that his misconduct was “not part of the natural history or sequelae of PTSD, TBI or other behavioral health conditions.” The decision never mentioned the expert opinion of Dr. Sandra Dixon, a psychologist who had specifically tied Machado’s conduct to PTSD symptomology. It acknowledged the VA’s 100-percent rating only to note that the Board was not bound by VA determinations — without saying anything about why those determinations deserved no weight.
Machado sued the Secretary of the Army in January 2025. Judge Barbadoro granted his summary judgment motion in March 2026 and remanded the case. The court identified four specific failures:
First — 10 U.S.C. § 1177. Machado had argued in every application that the Army violated 10 U.S.C. § 1177, which requires a medical examination assessing whether PTSD or TBI constitutes extenuating circumstances before the Army separates a veteran under other-than-honorable conditions within 24 months of a combat deployment. The 2022 Board decision did not mention § 1177 once. A board cannot silently dismiss a non-frivolous legal argument and call its decision reasoned.
Second — Ignored medical evidence. The Board never cited, analyzed, or distinguished Dr. Dixon’s expert opinion. Under the liberal consideration standard, a board cannot simply “adopt the Army psychologists’ opinions” and ignore contrary evidence. It must at minimum explain why it found that evidence unpersuasive.
Third — Dismissed VA findings without engagement. Noting that the Board is “not bound by” the VA is not the same as engaging what the VA found and explaining why it did not affect the outcome. The Board never did the latter.
Fourth — Post-service rehabilitation analysis tainted. The Board dismissed Machado’s sustained mental health treatment, his volunteer work with veterans’ organizations, and his stable second marriage by pointing to “the serious nature of the discharging offenses.” Because that characterization rested on the Board’s flawed liberal consideration analysis, the rehabilitation analysis also required reconsideration on remand.
Machado sits alongside Bussey v. Driscoll as part of a growing line of federal decisions that refuse to accept board reasoning that invokes liberal consideration as a heading while conducting anything but. Federal courts are watching. The standard has teeth.
What Evidence Matters Under Liberal Consideration
Whether you are preparing an application for the first time or challenging a prior denial, these categories of evidence carry the most weight under the liberal consideration standard:
- Medical diagnoses from treating clinicians, including those obtained after separation. A diagnosis does not need to appear in your service record at the time of discharge.
- VA service-connection determinations and disability ratings. A board can disagree with the VA, but it must engage the substance of those findings — not simply assert its independence from them.
- Independent medical opinions and nexus letters. Expert clinicians who connect your specific diagnosis to the specific conduct at issue can be decisive. Machado turned in part on the Board’s complete failure to address Dr. Dixon’s opinion.
- Buddy statements and unit testimony. Servicemembers who deployed with you and witnessed behavioral changes after combat can corroborate the timeline and the symptoms.
- Published clinical literature. Scientific research connecting PTSD or TBI to specific behavioral patterns — including impulsivity, aggression, hypervigilance, and intimate partner violence — is admissible and probative.
- Your own sworn statement. A detailed, honest personal statement explaining the connection between your condition and your conduct gives the board the narrative it needs to apply the standard correctly.
- Post-service rehabilitation evidence. Under the 2018 Wilkie Memorandum, boards must consider 18 categories of post-service evidence, including mental health treatment, employment, character references, acceptance of responsibility, and volunteer or community service.
What to Do If Your Board Failed to Apply Liberal Consideration
If you received a denial, your options depend on where you are in the process and how long ago the discharge occurred.
Veterans discharged within the last 15 years may apply directly to the Discharge Review Board for their service branch using DD Form 293. Veterans outside that window may apply to the Board for Correction of Military Records (BCMR) or Board for Correction of Naval Records (BCNR) using DD Form 149. Those boards apply a three-year statute of limitations from the date you discovered the error or injustice, but they have discretion to waive it in the interest of justice.
If you received a prior denial from the Army Discharge Review Board and believe you are covered by the Kennedy v. Whitley class action settlement, you may be entitled to mandatory reconsideration. That settlement — the same one that required the Board to “take a fresh look” at Machado’s case — covers Iraq and Afghanistan era veterans who were partially or fully denied relief on liberal consideration grounds.
Beyond the administrative process, discharge review board decisions are subject to judicial review under the Administrative Procedure Act. A federal court may set aside any decision that is arbitrary, capricious, or otherwise not in accordance with law. A board that ignored a non-frivolous argument, rubber-stamped its own medical advisor over your treating clinician’s opinion, or dismissed VA findings without explanation may not survive that review. Machado and Bussey both demonstrate that federal courts will remand when they see those failures. For an overview of the full upgrade process, see our guide on how to upgrade an OTH discharge.
Frequently Asked Questions About Liberal Consideration and Discharge Upgrades
What mental health conditions qualify for liberal consideration in a discharge upgrade?
PTSD, TBI, and other mental health conditions connected to military service qualify under the Kurta Memorandum and 10 U.S.C. § 1553(d)(3). Military sexual trauma (MST) and related conditions are also covered. The condition does not need to appear in your service record — a post-service diagnosis is sufficient if the evidence shows the condition existed during your service.
Does liberal consideration guarantee a discharge upgrade?
No. Liberal consideration is an evidentiary standard, not a guaranteed result. It requires the board to resolve doubts and inferences in your favor and to genuinely engage all the evidence you submit. The board may still deny the application if it properly engages the evidence and explains its reasoning. But a denial that ignores or dismisses your best evidence without explanation does not satisfy the standard — and a federal court may vacate it.
Can I challenge a discharge upgrade denial in federal court?
Yes. Discharge review boards and records correction boards are federal agencies, and their decisions are subject to judicial review under the Administrative Procedure Act. A court may set aside a decision that is arbitrary, capricious, or otherwise not in accordance with law. Machado v. Driscoll (2026) and Bussey v. Driscoll (9th Cir. 2025) are recent examples of federal courts doing exactly that. Federal court review is not a first step — you must generally exhaust the administrative process first — but it is a real option when the board fails to do its job.
What is 10 U.S.C. § 1177, and why does it matter?
Section 1177 requires the military to conduct a medical examination before separating a servicemember — under other-than-honorable conditions — who deployed within the previous 24 months and carries a PTSD or TBI diagnosis. That examination must assess whether those conditions constitute extenuating circumstances related to the basis for separation. If the Army failed to conduct the required examination, or if a review board failed to address your argument that § 1177 was violated, that failure can be a separate, independent ground for remand — as Machado confirmed.
What is the Kennedy settlement, and does it apply to my case?
Kennedy v. Whitley (also known at various stages as Kennedy v. Esper and Kennedy v. McCarthy) is a class action settlement requiring the Army to automatically reconsider certain discharge upgrade denials from Iraq and Afghanistan era veterans. The settlement requires the Army Discharge Review Board to take a “fresh look” at cases where liberal consideration should have applied. If you applied to the ADRB between approximately April 2011 and the settlement’s effective date and received a denial, you may be entitled to reconsideration. An attorney can evaluate whether your case falls within the class.
How long do I have to apply for a discharge upgrade?
Veterans discharged within the last 15 years may apply to the Discharge Review Board for their service branch using DD Form 293. Veterans outside that window may apply to the BCMR or BCNR using DD Form 149, subject to a three-year limitations period from discovery of the error (with board discretion to waive). The clock runs from your discharge date or from the date you learned of the grounds for relief — so acting sooner preserves more options.
This article is general information and is not legal advice. Every case is different. If you have questions about your specific situation, speak with a qualified military law attorney.
Your Discharge Upgrade Denial May Not Be the Final Word
Liberal consideration is more than a phrase boards insert into form decisions. It is a legal standard backed by statute, codified by Congress, and now enforced by a growing body of federal court decisions. Courts in the Ninth Circuit and the First Circuit have both vacated board denials in the last year alone for failing to genuinely apply it.
If a board denied your discharge upgrade application, a careful review of that decision may reveal grounds for a challenge that you have not yet pursued. The question is not just whether the board said the right words. The question is whether the board actually did the work.
Courtney Military Law Group represents service members and veterans in discharge upgrade proceedings, BCMR and BCNR petitions, and related military records corrections. If your case was denied and you want a frank evaluation of what the record shows, contact us to discuss your options.
