Plaintiffs represented by the Yale Law School Veterans Legal Services Clinic and co-counsel at Jenner & Block announced Wednesday they had reached a settlement agreement with the US Army in a class action lawsuit filed on behalf of more than 50,000 veterans who received less-than-Honorable discharges.
Steve Kennedy and Alicia Carson served in Iraq and Afghanistan, respectively, and both were given less-than-Honorable discharges for being absent without leave (AWOL). They both appealed to the Army Discharge Review Board (ADRB), requesting that their discharge status be changed to Honorable because their AWOL behavior could be explained and mitigated by the post-traumatic stress disorder (PTSD) they both suffered due to their service. Their complaint alleges that, by denying the requested status change, the ADRB acted in a way that was “arbitrary, capricious, unsupported by the evidence, and contrary to the Army’s own rules, in violation of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment.” A less-than-Honorable discharge denies a veteran access to the GI Bill for college expenses, denies disability and unemployment compensation connected with their service, denies them a military funeral and benefits for survivors, and many other government benefits. It also carries with it a stigma that can lead employers to be less likely to hire a veteran with a less-than-Honorable discharge.
The plaintiffs requested that the ADRB take steps to address the harm done to discharged veterans and to issue consistent standards about how to take a veteran’s PTSD or related injury into account when reviewing their discharge status. The US District Court for the District of Connecticut granted the class certification in December 2018 and denied a motion to dismiss by the Secretary of the Army shortly thereafter. After negotiations, the plaintiffs and the Army have come to an agreement in which the ADRB will automatically review cases dating back to April 2011 involving discharge status changes relating to PTSD, traumatic brain injury (TBI), military sexual trauma (MST), or other behavioral health (OBH) issue. The ADRB will be required to give “liberal consideration” to those conditions in making their decision about discharge status. The Army will also send notices to a second group of veterans whose applications for upgraded status were denied between October 2001 and April 2011. That group may reapply for an upgrade to Honorable discharge status under the new rules. The Army has also agreed to additional changes in procedures, including increased training for ADRB members, enhanced notice to veterans, more detailed documentation requirements, and most importantly a telephonic hearing program so veterans are not forced to travel to Washington DC for their review hearings.
Before the settlement agreement is finalized, class members will have the opportunity to comment on the terms of the agreement in the district court.