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Army agrees to review thousands of 'bad paper' discharges as part of lawsuit settlement

By NIKKI WENTLING | STARS AND STRIPES Published: November 18, 2020

WASHINGTON — As part of a lawsuit settlement reached Tuesday, the U.S. Army would be required to review and potentially upgrade thousands of other-than-honorable discharges dating back to April 2011.

The agreement is pending approval by the U.S. District Court for the District of Connecticut. It orders the Army Discharge Review Board to reconsider thousands of cases in which the board denied upgrades, despite evidence that veterans were struggling with post-traumatic stress disorder, traumatic brain injury or military sexual trauma when they separated from the military.

Andrew DeGuglielmo, an attorney in the case, said the agreement would provide “durable, long-standing relief” to veterans who were denied upgrades and those who will apply for upgrades in the future.

“This lawsuit has challenged decades-long, systemic deficiencies in the Army Discharge Review Board,” DeGuglielmo said Wednesday. “I’m confident this settlement will make the discharge upgrade process more accessible, just and fair for Army veterans who endure the invisible wounds of service.”

The Defense Department instituted a policy in 2017 to give “liberal consideration” to veterans looking to upgrade their other-than-honorable discharges, or “bad paper,” in situations where a service-related medical disorder could have led to their misconduct. Plaintiffs in the lawsuit argued that the Army Discharge Review Board ignored the policy and denied upgrades when they were warranted.

The wrongful discharges go back even further, according to the Government Accountability Office. The GAO has reported that the Pentagon didn’t consistently apply previous policies going back to 2011 that required discharge review boards to take mental health issues into consideration.

“Bad paper” discharges disqualify veterans from receiving certain health and education benefits, as well as preferential hiring and tax breaks.

The lawsuit was filed in 2017 by Steve Kennedy and Alicia Carson, Iraq and Afghanistan veterans who were denied discharge upgrades despite diagnoses of mental health conditions. They were represented by the Yale Law School Veterans Legal Services Clinic.

The court granted class-action status to the case in 2018 and denied a motion from Secretary of the Army Ryan McCarthy to dismiss it. The parties reached an agreement Tuesday and will next go before the court for its approval.

The Veterans Legal Services Clinic is arguing a similar class-action case against the Navy for decisions made by the Navy Discharge Review Board. DeGuglielmo said he hoped the settlement with the Army would “provide some momentum” for the Navy lawsuit.

In addition to reviewing cases going back to 2011, the settlement requires the Army to send individual notices to veterans who were denied discharge upgrades from Oct. 7, 2001, to April 16, 2011. These veterans will be given information about what to include in their applications for upgrades and how the process works.

Garry Monk, executive director of the National Veterans Council for Legal Redress, said veterans are often unsure about how to apply for upgrades. The notices will help fill what Monk described as a “gap in information.”

As part of the agreement, veterans will also be allowed to participate in their review board hearings over the phone. Currently, veterans are required to appear in person in Washington if they want to argue their case.

Kennedy had his discharge upgraded to honorable in 2018 and traveled to Washington to appear before the review board. Appearing in person helped his case, but it’s not something everyone can do, he said.

“It’s an equity issue,” Kennedy said. “You are much more likely to be successful if you appear. A lot of people don’t have the money, job flexibility and child care, and they’re put at an extreme disadvantage because of it. So, this is a key part of the settlement.”

The Army also agreed to institute more training for members and staff of the Army Discharge Review Board. The parties also agreed that, moving forward, veterans should be given more detailed information about how to apply for upgrades.

Sen. Richard Blumenthal, D-Conn., plans to introduce legislation in the next congressional session that would codify the changes into law, he said.

“I think there really is a need after this settlement to put into statute the kinds of reforms that are achieved here,” Blumenthal said. “It’s been a step-by-step litigation process, and there should be no need for veterans to go to court. I am planning to suggest to the new Congress a measure that will codify these reforms.”

wentling.nikki@stripes.com
Twitter: @nikkiwentling