Thousands of United States Sailors and Marines are deployed to combat zones across the globe, and return home suffering from the invisible wounds of war, such as Post-Traumatic Stress Disorder (PTSD) or traumatic brain injury (TBI). Sometimes these mental health issues indirectly lead to less-than-Honorable discharges, resulting in permanent stigma and preventing veterans from accessing essential benefits like the GI bill and much-needed mental health care. The Naval Discharge Review Board adjudicates discharge upgrade applications from veterans seeking an appeal of their less-than-Honorable discharge. In 2014, then-Secretary of Defense Chuck Hagel directed these boards to consider PTSD and related conditions as “potential mitigating factors in the misconduct that caused the under-other-than-honorable-conditions characterization of service.” This Hagel Memo was codified by Congress in 2016, statutorily requiring Discharge Review Boards to grant “liberal consideration” to the discharge upgrade applications of veterans with symptoms related to PTSD or TBI. 10 U.S.C. §1553(d)(3)(A)(ii).
On March 2, 2018, Tyson Manker and the National Veterans Council for Legal Redress (NVCLR), represented by the Veterans Legal Services Clinic at Yale Law School and private counsel, filed a class-action complaint in the U.S. District Court for the District of Connecticut on behalf of a class of Navy and Marine Corps veterans. The complaint was filed against the Secretary of the Navy. According to the plaintiffs, the Naval Discharge Review Board rejected almost 90% of discharge upgrade applications based on credible claims of service-connected PTSD, without clearly explaining what a veteran must show to prevail, and without applying the proper legal standards. The plaintiffs alleged that the Board violated the Administrative Procedure Act by issuing arbitrary and capricious decisions that were inconsistent with relevant statutory law, and deprived applicants of their Fifth Amendment rights to due process of law. They argued that the Board’s actions, in violation of binding Department of Defense guidance, evidenced an unconstitutional secret policy against granting discharge upgrades: the Board had set an unachievable and sometimes unknown evidentiary burden for applicants alleging PTSD as a basis for a discharge upgrade.
The plaintiffs requested that the Court set aside and hold unlawful the Board’s improper denials of veterans’ discharge upgrade applications, order the applications' approval, and issue injunctive relief to ensure that all Navy and Marine Corps veterans had their discharge upgrade applications considered according to the Constitution and as intended by Congress. The case was assigned to Judge Charles S. Haight, Jr.
On November 15 2018, the court granted a motion to certify a class of veterans who served during the Iraq and Afghanistan Era (between October 7, 2001, and the present) and who:
- were discharged from the Navy, Navy Reserve, Marine Corps, or Marine Corps Reserve with less-than-Honorable statuses, including General and Other-than-Honorable discharges but excluding Bad Conduct or Dishonorable discharges;
- have not received upgrades of their discharge statuses to Honorable from the NDRB; and
- have diagnoses of PTSD, TBI, or other related mental health conditions, or records documenting one or more symptoms of PTSD, TBI, or other related mental health conditions at the time of discharge, attributable to their military service under the Hagel Memo standards of liberal or special consideration.
On December 27, 2018, the Court ordered a scheduling conference to resolve the issue of whether the federal and local rules of civil procedure exempt this case from the usual discovery procedures, the scope of discovery, and discovery deadlines.
On July 26, 2019, the Navy sought to dismiss the case, claiming that the court lacked jurisdiction and that the plaintiffs failed to state a claim for which relief can be granted. The court denied the motion on November 7, 2019, holding that in order for the motion to dismiss to prevail, the defendant “must demonstrate that as a matter of law this Court lacks subject matter jurisdiction over each and every claim plausibly pleaded in the Complaint on behalf of Manker, Doe, or any member of the certified Plaintiff class." The court found that the Navy failed to so demonstrate, also stating that whether “the [Board] regarded itself as required to act in accordance with the Hagel Memo’s guidance is at the very least a factual issue that can be explored in discovery.” 2019 WL 5846828.
Following this order, the parties held telephonic settlement conferences on April 14, 2020 and May 7, 2020; this case is ongoing.
Esther Vinarov - 02/04/2019
Bogyung Lim - 06/16/2020
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