The Yale Law School Veterans Legal Services Clinic filed a national class-action lawsuit last week on behalf of two U.S. Army veterans, Stephen Kennedy and Alicia Carson, who allege that they were wrongfully denied honorable discharges as a result of mental health conditions incurred during their military service.
The suit alleges that the Army Discharge Review Board unlawfully denied discharge upgrades to the two veterans by not following a binding 2014 issuance by then-Secretary of Defense Chuck Hagel. The Hagel Memo, as it is commonly referred to, states that all records-correction boards give “special consideration” to post-traumatic stress disorder diagnoses by the Veterans Affairs agency and “liberal consideration” to diagnoses of PTSD by civilian health providers. It also directs the review boards to consider PTSD and other related diagnoses as “potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service,” according to the official complaint published by the VLSC.
Discharge documents contain basic information about a veteran’s service, including the characterization of service and reason for discharge, such as a mental illness. The documents are required for government employment, and civilian employers also normally request to see the documents. Because the majority of veterans receive an honorable discharge at the end of their service, a general discharge is considered stigmatizing, according to the complaint.
“It’s crucial we hold the Army accountable when it fails to protect and serve those who have protected and served and sacrificed for this country,” said Catherine McCarthy LAW ’19, one of the law students representing Kennedy and Carson. “[Veterans] come back wounded and then are denied the very benefits that would help them heal. Our plaintiffs are doing remarkably well, but that is not the norm.”
Kennedy joined the military in 2006. He was engaged in active battle in Iraq and Afghanistan for about a year. In March 2009, the Army informed him that he would not be able to attend his own wedding despite previous informal approval given to him by his squad leader. Kennedy still chose to attend his wedding, going absent without official leave from the Army for 10 days. When he returned to his service, his company commander sent him to a psychologist, who diagnosed Kennedy with major depressive disorder and recommended administrative discharge. Kennedy chose to be discharged on July 27, 2009, but because of his 10 days of absence without official leave, he received a general discharge.
Carson served as a gunner in Afghanistan in 2010, and was responsible for the safety and security of her vehicle and for providing additional support to the four other vehicles in her convoy. Carson continued to serve until March 2012 when a VA psychiatrist diagnosed her with PTSD and a traumatic brain injury. She obtained doctor’s excuses for military drills in March, April and May 2012. But in May 2012, Carson was notified of her AWOL status and received a general discharge one month later due to “unsatisfactory participation.”
Following his discharge, Kennedy returned to school and graduated from the University of Massachusetts Boston for a bachelor’s degree and New York University for a graduate degree, spending about $75,000 in out-of-pocket expenses that would have been covered by the G.I. Bill had he received an honorable discharge. The National Guard sent Carson a bill charging her about $9,000 to pay back her enlistment bonus. The suit requests Kennedy and Carson receive benefits they would have gotten with an honorable discharge, such as access to education benefits and services.
However, the suit does not request that financial reparations be made to Kennedy or Carson. Instead, it aims to hold the Army Discharge Review Board accountable to the Hagel Memo, in order to address what the complaint sees as a systemic issue where the board unjustifiably awards less-than-honorable discharges to veterans as a result of infractions related to mental health.
The Law School VLSC was established in 2010.
Correction, April 25: The previous version incorrectly stated that Kennedy had student debt when in fact he paid $75,000 for his tuition out-of-pocket. Second, Kennedy was deployed in active battle for about a year of his three-year service. Finally, the suit is not seeking financial reparations for Kennedy or Carson.