Thousands of U.S. Marines and Sailors 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, which causes permanent stigmatization and prevents veterans from accessing essential benefits like the GI bill and much-needed mental health care. Discharge Review Boards adjudicate 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, which statutorily required 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) filed a class action complaint in the US District Court of Connecticut on behalf of Navy and Marine Corps veterans. The complaint was filed against Richard Spencer in his official capacity as Secretary of the Navy. According to the plaintiffs, the Naval Discharge Review Board (NDRB), which adjudicates applications from Navy and Marine Corps veterans, rejected almost 90% of 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 NDRB 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. The plaintifs alleged that the NDRB’s actions, in contravention of binding Department of Defense guidance, indicated an unconstitutional secret policy against granting discharge upgrades, setting an unachievable and sometimes unknown evidentiary burden for applicants alleging PTSD as a basis for a discharge upgrade.

Plaintiffs requested that the Court set aside and hold unlawful the NDRB’s improper denials of veterans’ discharge upgrade applications, order their approval, and issue appropriate injunctive relief to ensure 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 the following class:

veterans who served during the Iraq and Afghanistan Era (between October 7, 2001, and the present) who:
(a) 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;
(b) have not received upgrades of their discharge statuses to Honorable from the NDRB; and
(c) 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.

The case is ongoing.

Esther Vinarov - 02/04/2019


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