How a 2025 Court Ruling Strengthened Your Right to a PTSD Discharge Upgrade

Author: Kevin Courtney, Esq. | California Attorney (#323125) + Former USMC Judge Advocate

If you are a veteran seeking a PTSD discharge upgrade, a landmark 2025 federal court decision just made your case stronger. In Bussey v. Driscoll, the United States Court of Appeals for the Ninth Circuit ruled that military review boards have been applying the wrong legal standard when evaluating discharge upgrade requests from veterans with combat-induced PTSD. Because of this ruling, thousands of veterans who were previously denied relief may now have a path forward.

Here is what the case decided, why it matters, and how you can use it to pursue the upgrade you deserve.

What Is Bussey v. Driscoll?

Bussey petitioned the Army Board for Correction of Military Records to upgrade his discharge. He argued that his PTSD contributed to the conduct that led to his discharge. The Board acknowledged that Bussey had PTSD but denied the petition. It concluded that PTSD was not a mitigating factor because PTSD does not directly cause non-consensual sexual contact.

The Ninth Circuit disagreed — and vacated the Board’s decision entirely.

Why the Board Got It Wrong

The court identified two critical legal errors that the Board made. Understanding these errors is essential, because review boards across all branches of the military have made the same mistakes when evaluating PTSD discharge upgrade requests.

The Board Looked at the Wrong Question

Federal law — specifically 10 U.S.C. § 1552(h)(2)(B) — requires the Board to consider whether PTSD “potentially contributed to the circumstances resulting in the discharge.” The Board, however, narrowly focused on whether PTSD caused the legal elements of the crime itself.

The Ninth Circuit held that this was too narrow. The “circumstances resulting in” a discharge include all the facts, events, and conditions that led to the misconduct — not simply the legal definition of the offense. In other words, boards must look at the full picture of what was happening in a veteran’s life, not just at the four corners of a criminal charge.

For example, the court explained that even if PTSD is not listed as a direct cause of a specific crime, boards must still consider whether PTSD contributed to the conditions, decisions, and behaviors that led to that crime. That is a fundamentally broader and more veteran-friendly standard.

The Board Failed to Apply “Liberal Consideration”

Congress specifically instructed the Board to review PTSD-based discharge upgrade requests with “liberal consideration.” The Ninth Circuit held that the Board did not do this — and explained exactly what liberal consideration requires.

Liberal consideration is a lenient evidentiary standard. It is not strict or literal. Importantly, under this standard, the Board must resolve all doubts and inferences in favor of the veteran. The court was clear: if the Board finds that PTSD contributed to the circumstances resulting in the discharge — even if PTSD did not directly cause the crime — liberal consideration allows the Board to grant relief.

This is significant because it means veterans do not have to prove that PTSD made them commit a specific act. They only need to show that PTSD potentially contributed to the broader circumstances surrounding the conduct.

What This Means for Veterans Seeking a PTSD Discharge Upgrade

If you have combat-induced PTSD and received a less-than-honorable discharge, Bussey v. Driscoll gives you a powerful legal argument. Specifically, this case supports your petition in three key ways.

First, if your petition was previously denied because the Board concluded that PTSD does not directly cause your specific offense, that denial may have been based on the same legal error the Ninth Circuit rejected. Therefore, you may have grounds to petition again under the correct standard.

Second, the ruling confirms that boards must take a holistic view of your service and circumstances. Consequently, evidence of how PTSD affected your thinking, your behavior, and your decision-making during the period leading up to the misconduct is directly relevant — and the Board is required to consider it.

Third, because liberal consideration requires the Board to resolve doubts in your favor, the burden you face is lower than many veterans — and many boards — have historically assumed. As a result, veterans who were told their case was too weak to pursue may want to take another look.

Who Can Benefit From This Ruling

Bussey v. Driscoll applies specifically to veterans with combat-induced PTSD who are petitioning the Army Board for Correction of Military Records. However, the legal principles it establishes — particularly the broad reading of “circumstances resulting in the discharge” and the lenient liberal consideration standard — are consistent with guidance that applies to all branches of the military.

Veterans who may benefit include those who received a discharge following a conviction at court-martial, and veterans whose PTSD was undiagnosed or untreated at the time of their service. Additionally, veterans who were previously denied by a Board that focused narrowly on the crime rather than the surrounding circumstances are well-positioned to use this ruling.

Furthermore, even veterans whose misconduct does not look like a textbook PTSD symptom may have viable cases. The court’s drunk driving analogy makes this clear: a Board cannot deny a petition simply because a specific behavior is not listed in a clinical definition of PTSD. Instead, boards must consider the full chain of circumstances that led to the discharge.

How to Build Your Petition Under the Bussey Standard

A strong PTSD discharge upgrade petition under Bussey v. Driscoll tells a complete story. Moreover, it directly addresses the two standards the court identified: the broad circumstances test and the liberal consideration standard.

That means your petition should include a personal statement that explains your combat experiences and how they affected you, along with medical and mental health records documenting your PTSD diagnosis. You may also need an expert opinion linking PTSD to the broader circumstances of your misconduct, as well as your full service record showing your performance and conduct before and after the incident. Finally, character evidence and post-service rehabilitation strengthen your case by showing who you are today.

Critically, the legal argument in your petition must cite Bussey v. Driscoll and 10 U.S.C. § 1552(h)(2)(B) directly. Boards are required to follow this standard, and putting it squarely in front of them — with a clear record showing how it applies to your case — is essential to getting the review you are entitled to.

A Note on Judicial Review

Bussey v. Driscoll also reinforces something veterans should know: Board decisions are not the final word. Under the Administrative Procedure Act, federal courts can review a Board’s decision and set it aside if the Board failed to apply the correct legal standard. Because the Ninth Circuit found that the Board had done exactly that, it vacated the decision and sent the case back for reconsideration. Therefore, if your petition has been denied and you believe the Board applied the wrong standard, federal court review may be an option worth exploring.

Take the Next Step

A PTSD discharge upgrade is not just a legal formality — it can restore access to VA healthcare, education benefits, and housing support that veterans have earned. Bussey v. Driscoll made the path to that relief clearer than it has ever been.

If you have combat-induced PTSD and received a less-than-honorable discharge, contact our office to schedule a consultation. We will discuss your record, explain how Bussey v. Driscoll applies to your situation, and if retained, help you build the strongest possible petition.

This post is for informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship.