Army to Review Thousands of ‘Bad Paper’ Discharges in Court Settlement
A federal court has approved a settlement in a lawsuit that requires the U.S. Army to review thousands of other-than-honorable discharges issued in the past decade to soldiers with mental health conditions or traumatic brain injuries.
Judge Charles Haight, with the U.S. District Court of Connecticut, approved the agreement Monday in the class-action suit formerly known as Kennedy v. McCarthy, which charged that the service wrongly discharged troops who engaged in misconduct but whose behavior may have been caused by a psychiatric condition or brain damage.
The Army announced in January that it would review all other-than-honorable discharges since April 17, 2011, for eligible service members, an estimated 3,500 active-duty, Reserve and National Guard troops affected by post-traumatic stress disorder or other psychiatric conditions, trauma related to sexual assault, or brain injury.
Under the settlement, the Army also will notify soldiers who received other-than-honorable discharges from Oct. 7, 2001, to April 16, 2011, of their ability to apply for an upgrade or to appeal a previous denial.
In 2016, the Defense Department announced efforts to increase awareness of the opportunity for veterans to request a review of their discharges and an upgrade. The following year, the DoD released additional guidance to clarify the circumstances that would be covered by a review.
In their lawsuit, Steve Kennedy, a former 82nd Airborne soldier and Iraq War veteran, and Alicia Carson, a National Guard veteran who deployed to Afghanistan for nearly a year, said the Army Discharge Review Board ignored the policy.
Shortly before his discharge, Kennedy was suicidal and suffered from post-traumatic stress disorder, according to court documents. He went absent without leave to attend his own wedding; as a result, he was demoted to private first class and kicked out of the service.
Kennedy, now a University of Connecticut School of Law student, received a discharge status upgrade in 2018, but decided to pursue the lawsuit.
Carson also received an upgrade to her discharge in 2018, but chose to remain with the suit, which was certified as a class action that year.
The two were represented by Yale Veterans Legal Services Clinic and the law firm of Jenner & Block.
“What was most important going forward to me was that everyone else got the same review that I did,” said Kennedy in a news release Tuesday. “And that’s the opportunity that thousands of deserving veterans are going to receive in this settlement.”
The settlement in the case, now known as Kennedy v. Whitley, requires the Army to increase training for members of the Army Discharge Review Board.
It also allows soldiers to participate in their review board hearings by phone, a change from the requirement that they appear in person in Washington, D.C., to argue their cases.
Other-than-honorable and general discharges, also known as “bad paper” discharges, limit veterans’ access to Department of Veterans Affairs benefits, including medical services, disability compensation and education benefits. They also can have an impact on a veteran’s long-term earning power, since many employers will not hire anyone with less than a good-conduct discharge.
More than 51,400 discharges under other-than-honorable conditions were issued for active-duty personnel from fiscal 2010 through 2020, according to the Defense Manpower Data Center.
A similar case has been filed against the Navy for decisions made by the Navy Discharge Review Board, which also oversees Marine Corps discharges. The suit, Manker v. Spencer, also is before Judge Haight, who had rejected motions by the Army and the Navy to dismiss the suits.
“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 with the Yale Veterans Legal Services Clinic who is also involved in the Manker case.
Attorneys who work with service members from the other branches who received other-than-honorable discharges under the same circumstances hope that the Army case will accelerate decisions in their cases.
Danica Gonzalves, a lawyer and program director for a consortium of veterans service organizations that help former service members seeking discharge upgrades, told Military.com that the process is cumbersome and subject to lengthy delays.
“It’s a very frustrating process for advocates and veterans,” she said.
Gonzalves’s Discharge Upgrade Program is supported by the Disabled American Veterans Charitable Service Trust and backed by the American Legion, Paralyzed Veterans of America and the National Veterans Legal Services Program.
— Military.com reporter Richard Sisk contributed to this report.
— Patricia Kime can be reached at Patricia.Kime@Monster.com. Follow her on Twitter @patriciakime.
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