United States Court of Appeals for the Federal Circuit ______________________

ROBERT J. LABONTE, JR., Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2021-1432 ______________________

Appeal from the United States Court of Federal Claims in No. 1:18-cv-01784-RAH, Judge Richard A. Hertling. ______________________

Decided: August 12, 2022 ______________________

ALEXANDER FISCHER, JOSHUA HERMAN, Veterans Legal Services Clinic, Jerome N. Frank Legal Services Organiza- tion, Yale Law School, New Haven, CT, argued for plaintiff- appellant Robert J. Labonte, Jr. Also represented by LERNIK BEGIAN, CASEY SMITH, MICHAEL JOEL WISHNIE.

RICHARD PAUL SCHROEDER, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., DOUGLAS K. MICKLE.

JULIE VEROFF, Cooley LLP, San Francisco, CA, for Case: 21-1432 Document: 75 Page: 2 Filed: 08/12/2022

2 LABONTE v. US

amici curiae John Brooker, Eleanor Morales, Brian D. Schenk, Eugene R. Fidell, Hugh McClean, Raymond Jewell Toney. Also represented by KATHLEEN R. HARTNETT.

LIAM JAMES MONTGOMERY, Williams & Connolly LLP, Washington, DC, for amici curiae National Veterans Legal Services Program, Protect Our Defenders. Also repre- sented by AMY MCKINLAY, MIRANDA PETERSEN. ______________________

Before CHEN, SCHALL, and STOLL, Circuit Judges. SCHALL, Circuit Judge. Appellant, Robert J. LaBonte, Jr., is a veteran who served in the United States Army. In 2006, he went absent without leave (“AWOL”) for six months. After he voluntar- ily returned to his base, he pleaded guilty to a charge of desertion in a court-martial proceeding and was separated from the Army with a Bad Conduct Discharge. In 2015, Mr. LaBonte applied to the Army Board for Correction of Military Records (“ABCMR” or “Board”), seeking retroactive medical retirement. He alleged that, while in the Army, he had had a permanent disability re- sulting from post-traumatic stress disorder (“PTSD”), trau- matic brain injury (“TBI”), depression, and anxiety incurred during service. He also alleged that these disabil- ities had rendered him unfit for service prior to his absence without leave, his court-martial, and his discharge. In 2018, the Board denied his claim. Mr. LaBonte then filed suit in the United States Court of Federal Claims challenging the ABCMR decision. On December 3, 2019, the court remanded the case to the Board for further proceedings. LaBonte v. United States, No. 18-1784C (Fed. Cl. Dec. 3, 2019), J.A. 2716. On April 29, 2020, on remand, the Board again denied Mr. LaBonte’s claim for disability retirement. J.A. 2763–65. Subse- quently, with the case back before the Court of Federal Case: 21-1432 Document: 75 Page: 3 Filed: 08/12/2022

LABONTE v. US 3

Claims, Mr. LaBonte challenged the ABCMR’s April 2020 decision and moved for judgment on the administrative rec- ord. The government renewed a previous motion to dismiss for failure to state a claim upon which relief could be granted and, in addition, cross-moved for judgment on the administrative record. On October 30, 2020, the Court of Federal Claims granted the government’s motion to dismiss. LaBonte v. United States, 150 Fed. Cl. 552, 564–65 (2020). The court determined that, in order for the ABCMR to grant Mr. La- Bonte disability retirement, the Board would have to cor- rect Mr. LaBonte’s DD-214 Form (“DD-214”) to show that he was separated due to ph