Good afternoon and welcome to CCK Law. My name is Robert Chisholm, joining me this afternoon
is Courtney Ross and Bradley Hennings. Today we are here to talk about a specific case that was
filed in the United States District Court of Connecticut dealing with discharge upgrades.
The case is Kennedy versus McCarthy, and recently there was a proposed settlement
in that case. It is going to have a large impact on army veterans who served after 2001.
Courtney, can you give us sort of a background on this case?
Courtney Ross: Yes. Thanks, Robert. In April of 2017, Steve Kennedy and Alicia Carson filed
a proposed Nationwide Class Action Lawsuit on behalf of approximately fifty thousand
veterans from Iraq and Afghanistan who were discharged with less than honorable discharges.
In December of 2018, a judge of the US District Court for the District of Connecticut
granted the plaintiffs' motion to certify the nationwide class of Army veterans who
meet specific criteria. We are going to go what are those criteria shortly.
With the assistance of Magistrate Judge Robert Spector, the parties reached an agreement,
as you mentioned Robert, on the terms of a settlement in November of 2020.
That settlement, right now, is currently pending final Court approval. Before it can be finalized,
class members will have the opportunity to comment on the terms of the agreement in a hearing
that will be held before the district court. Robert: Brad, can you give us a little more detail
on exactly what was going on in this lawsuit? Bradley Hennings: Absolutely. Specifically,
the lawsuit is alleging that since the start of military operations in Iraq and
Afghanistan, the Army discharged thousands of soldiers Other-Than-Honorable or General,
Under Honorable Conditions. GEN statuses due to misconduct attributable to post-traumatic
stress disorder or PTSD, traumatic brain injury or TBI, military sexual trauma or MST, and other
mental and behavioral health conditions. Additionally, the lawsuit alleges that the
U.S.Army Discharge Review Board systematically denied discharge upgrade applications from those
service members who experienced these conditions; OTH and GEN discharges.
It affected both when the service members were leaving service, as well as when they tried to
upgrade their discharge status. It is important to note that in this suit, that veterans who received
dishonorable discharges, will not be eligible. Robert: Thank you, Brad. Which classes of veterans
are impacted? The court certified a class in this civil action, this is what we currently call the
settlement class, and defined as follows: Members and former members of the Army, Army Reserve,
and Army National Guard who served during the Iraq and Afghanistan era — the period between October
7, 2001, to the Effective Date of Settlement. Who were discharged with less-than-honorable
service characterization, this includes General and Other-Than-Honorable discharges from the Army,
Army Reserve, and Army National Guard but not Bad Conduct or dishonorable discharges.
I want to say that one more time, it does not include Bad Conduct or Dishonorable discharges.
The people who have not received discharge upgrades to Honorable, and have diagnoses of
PTSD or PTSD-related conditions or records documenting one or more symptoms of PTSD
or PTSD-related conditions at the time of discharge attributable to their military service
under the Hagel Memo standards of liberal and special consideration.
That is the class of people that are now eligible under this settlement.
Courtney, what is the Army's response? The Army identified two groups of veterans
that they are going to respond in a slightly different way. For veterans, the Army is going to
automatically reconsider certain discharge status upgrade decisions made by the Army Discharge
Review Board between April 17, 2011, through the date that the settlement is finalized.
Those dates are important because, for any veterans that fall within that category,
the Army will automatically reconsider those decisions already made. The Army said this
will affect about three thousand five hundred active-duty reserve guard and guard troops.
Now, for veterans who fall between October 7, 2001, through April 16, 2011 timeframe,
the Army will send individual notices to the second group of veterans whose applications
were previously denied for an upgrade before the Army Discharge Review Board.
They are not going to automatically review it but they are going to send letters to veterans
who fall within that category. Members of the second group of veterans can re-apply
and receive the benefit of the recent liberalizing laws in accordance with the settlement.
It is estimated that the second group is between fifty to a hundred thousand veterans that
may be eligible to have their upgrades reconsidered.
The Army is also making several other important changes to its general procedures and operations,
this includes additional training for board members and staff who are making these decisions,
allowing phone hearings instead of requiring travel to Washington, DC,
class notices to veterans of the legal and medical services that might assist in their applications,
and more detailed documentation requirements
that the Army Discharge Review Board must follow in any written denials that are provided.
Robert: Hey, Brad, what do you see as the next steps here?
I just wanted to go back to one thing and clarify that when you talk about PTSD-related conditions,
it also included those other items that we discussed a little bit earlier, meaning TBI,
MST, and other mental and behavioral conditions. It is not just PTSD,
I just want to make that really clear. In terms of the next steps, what happens is
the settlement that everyone came to an agreement upon, it was
preliminarily approved by a federal judge, which means that now, the parties are distributing the
class notices to veterans potentially affected by the settlement so that they can comment on
the settlement at a final hearing. This video, like many other efforts,
is an effort to let people know this is going on. If they are interested in commenting on the
settlement at the final hearing, they can. The final hearing is going to be held on zoom
on March 24, 2021, at ten a.m. Eastern time. This is really significant for
our clients and potential clients because the type of discharge has a tremendous impact on
the ability to qualify for VA benefits, if you have a bad discharge you may not be eligible.
If you can get your discharge upgraded, you will automatically be eligible for VA
benefits potentially because, with bad conduct, these lesser discharges can disqualify you.
This can make a huge difference in veterans' ability to qualify for benefits at the VA level.
You can also make a big difference at the state level because the states also
provide benefits to veterans and it is often based on the nature of their discharge.
Finally, it can make a significant impact on employment, employers often want to see
a higher level of discharge rather than the lower level of discharge. It can be
it can have a negative impact on the veterans' careers.
Robert: Do we know who brought the suit on behalf of these two veterans?
Bradley: Go ahead Courtney, please. Courtney: It was the veterans' legal services
law clinic at Yale Law School that initiated the lawsuit on behalf of these individuals.
Robert: I think it is important to point out, first of all, that this is really only the army
that has reached this settlement. We believe there is another suit pending against the Navy right
now, as well, and maybe that will be resolved, not that the Army has resolved this issue,
and potentially if there are any members of the Air Force that they would similarly get
that kind of settlement. But right now, it only applies to the Department of the Army.
Brad and Courtney, I think historically, we have seen the Department of Defense, in previous wars,
discharge people with disabilities and give them bad discharges. So this is a positive step forward
that they are doing this, but they need to continue to look at the past conflicts in wars
that the United States has been in to re-examine those procedures and processes as well.
Anyone who was discharged has the right to have been discharged reviewed, this
is the process that one can go through to do that. But this settlement goes a long way to
hopefully correct these discharges in the Iraq and Afghanistan war.
Any other final thoughts? Courtney: Go ahead, Brad.
Bradley: I was just going to say I think it is a huge step that the Army has agreed to this.
We are hopeful that the Navy will get on board too and there is a sense that if those two branches
of service come to agree to the settlement, that you may have the Air Force, Marines,
Coast Guard, everybody else may get in on it without the need for additional
litigation which would be great for everyone. Courtney: Yeah, and I think the point you made
before, Brad, about the larger impact of a discharge upgrade can have on a veteran,
in terms of VA benefits, employment, and state benefits. If that is to happen and it expanded
more than just the Army, the larger impact for veterans could be really great.
Bradley: It is a matter of respect, ultimately, for these veterans and ensuring that they
are given the respect that they are due if they were discharged due to disability.
Robert: Courtney and Brad, thank you for joining us here
at CCK. Please continue to follow us on Facebook and our website at cck-law.com.