After over three years of litigation, the Yale Law School Veterans Legal Services Clinic announced a nationwide settlement with the United States Army in the case of Kennedy v. McCarthy in the U.S. District Court for the District of Connecticut at a press conference Wednesday morning.
The clinic represented plaintiffs and veterans Stephen Kennedy and Alicia Carson, who alleged that the Army –– led by Secretary of the Army Ryan McCarthy –– discharged servicemen with less-than-fully honorable statuses, known as “bad paper” discharges, due to misconduct attributable to mental health conditions. They also alleged that the Army Discharge Review Board, or ADRB, systematically denied status upgrades to these veterans.
The settlement will ensure that the Army reconsiders the discharge status of thousands of Iraq- and Afghanistan-era veterans who received these bad paper discharges due to behavioral health conditions such as post-traumatic stress disorder, traumatic brain injury and military sexual trauma. Andrew DeGuglielmo ’18 LAW ’21, Rebecca Brooks LAW ’22, Deepen Gagneja LAW ’22 and Josh Britt LAW ’22 made up the clinic’s student team and helped with the litigation.
“Today marks an important moment in what has been a long process and part of an even longer path to ensure that veterans who have borne the invisible scars of their service are no longer denied the recognition, honor, assistance and opportunities attendant to a fully honorable discharge status,” Brooks said in the press conference.
She said that the settlement is a “significant step” toward holding the government accountable for the promises it made to veterans who volunteered to risk their lives serving the country and have carried “tremendous burdens” as a result of their service.
Brooks added that veterans often suffer from the “invisible wounds of war,” including mental health conditions such as PTSD and military sexual trauma. She said that, prior to the settlement, the Army often neglected or punished these veterans rather than provided them with the resources they needed to recover.
“We’re glad to have secured a preliminary settlement with the Army on behalf of tens of thousands of Army veterans wrongfully discharged from their military service due to in-service conditions … and who were denied the right to a fully honorable discharge status,” DeGuglielmo said at the press conference. “This lawsuit has challenged decadeslong systemic deficiencies at the [ADRB] in the way that it adjudicated the applications of less-than-honorably discharged soldiers with these conditions.”
DeGuglielmo said that the ADRB routinely denied veterans’ applications for discharge review “unfairly, inequitably and in violation of its obligations under federal law,” despite requests from the Department of Defense and from Congress that the ADRB consider whether a veteran’s misconduct is mitigated by their mental health condition.
The settlement ensures that the ADRB will automatically reconsider all applications containing evidence of qualifying mental health conditions decided on or after April 17, 2011, that did not receive the full upgrade requested using standards and procedures more favorable to veterans. The Army will also provide notice to veterans whose ADRB applications were decided from Oct. 7, 2001, to April 16, 2011, that they may submit a new discharge application.
Adrian Bonenberger ’02, a U.S. Army veteran and board member of the Yale Veterans Association, affirmed that these bad paper discharges often do not account for veterans’ psychological issues.
“What we’re looking at here is a case of the military and the military justice system, which is very old and ingrained, just catching up with what we know to be true medically and ethically about soldiers, which is that when they go to war and see certain things … that plays a big role in the type of things that they do,” Bonenberger told the News.
Bonenberger added that if a person has been changed by “heavy, heavy combat,” the Army should take their mental health condition into consideration instead of “kicking them out” with a dishonorable discharge.
The settlement also mandates that the ADRB reform its processes and procedures used to evaluate applications from veterans with qualifying mental health conditions. It will incorporate new language into operating manuals and decisional documents that require in-depth consideration of mental health factors.
Additionally, DeGuglielmo and Kennedy explained that the settlement requires the ADRB to implement a “universal telephonic personal hearing program” than enables veterans to appear at their discharge review hearings remotely — which alleviates the financial and personal burdens of needing to travel to Washington, D.C. for the hearing.
“[The settlement] is a truly historic step forward after many years of fighting and working for fairness and justice for veterans who are given less than honorable discharges through no fault of their own,” Sen. Richard Blumenthal LAW ’73 said at the press conference.
Blumenthal added that veterans who receive bad paper discharges are “victimized twice or three times”: by the unfairness of their discharges, the denial of medical benefits that are necessary for them to rejoin society and the “black mark” that remains on their record from the discharge.
Blumenthal voiced his support for this “tremendous milestone” and affirmed his commitment to the settlement given his membership in the U.S. Senate Committee on Armed Services.
“If we have learned nothing from the history of the bad paper discharges, it is that constant vigilance and oversight, proactive scrutiny are absolutely vital,” Blumenthal said at the press conference. “These measures are not self-enforcing. We need continued vigilance and oversight to make sure every single veteran gets what she or he deserves, and I can pledge to you as a member of the Armed Services Committee that I will be fighting to make sure that this agreement is implemented and enforced rigorously and faithfully.”
The Veterans Legal Services Clinic is part of the Jerome N. Frank Legal Services Organization at Yale Law School.
Julia Brown |email@example.com