Court orders Army to review thousands of ‘bad paper’ discharges
By NIKKI WENTLING | STARS AND STRIPES Published: April 28, 2021
WASHINGTON — A federal court approved a lawsuit settlement this week requiring the U.S. Army to review and potentially upgrade thousands of other-than-honorable discharges dating back 10 years.
The U.S. District Court for Connecticut finalized the agreement Monday. It orders the Army Discharge Review Board to reconsider thousands of cases where upgrades were denied, despite evidence that veterans were struggling with post-traumatic stress disorder, traumatic brain injury or military sexual trauma when they separated from the military.
The board will review decisions made between April 17, 2011, and April 26, 2021, that partially or fully denied relief to post-9/11 veterans with other-than-honorable discharges.
The lawsuit was filed in 2017 by Steve Kennedy and Alicia Carson, Iraq and Afghanistan veterans 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.
During the process of the lawsuit, Kennedy had his discharge upgraded to honorable.
“What was most important going forward to me was that everyone else got the same review that I did,” Kennedy said in a statement Wednesday. “And that’s the opportunity that thousands of deserving veterans are going to receive in this settlement.”
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.
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.
Under the agreement, veterans will now 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.
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.
“For many veterans, this could mean the difference between struggling with PTSD symptoms without adequate health care and finally receiving the benefits guaranteed by law,” said Adam Henderson, a law student intern in the Veterans Legal Services Clinic at Yale.
The clinic is arguing a similar class-action case against the Navy for decisions made by the Navy Discharge Review Board. Andrew DeGuglielmo, an attorney with the clinic, said he hoped the Army settlement would provide some momentum for that case.