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Kennedy v. McCarthy
On April 17, 2017, Steve Kennedy and Alicia Carson filed a proposed nationwide class-action lawsuit on behalf of approximately 50,000 less-than-Honorably discharged Iraq and Afghanistan-era Army veterans with post-traumatic stress disorder (PTSD) and other related mental health conditions.
Since September 11, 2001, hundreds of thousands of veterans have received less-than‑Honorable (“bad paper”) discharges, imposing a lifetime stigma, impairing their employment prospects, and denying them access to critical government services, including GI Bill education benefits, mental health treatment, and disability benefits. Many "bad paper" discharges are a result of misconduct attributable to conditions like PTSD and traumatic brain injury (TBI).
Congress created the Army Discharge Review Board (ADRB) so that veterans upgrade an unjustly harsh discharge after returning to civilian life—but this Board has routinely denied veterans' PTSD-based applications by veterans for decades. The class-action lawsuit challenged the ADRB’s systemic failure to adequately consider mental health conditions when veterans request that their discharge status be upgraded.
On December 21, 2018, Judge Warren W. Eginton of the U.S. District Court for the District of Connecticut granted plaintiffs’ motion to certify a nationwide class of Army veterans who were discharged from the Army with a less-than-Honorable service characterization after October 7, 2001, have not received discharge upgrades to Honorable, and have diagnoses or records that document PTSD, TBI, Military Sexual Trauma (MST), and related conditions. Shortly after granting certification, the court denied the Secretary of the Army’s motion to dismiss the case. After Judge Eginton passed away, the case was transferred to Judge Charles S. Haight, who authorized a period of discovery in the case.
With the assistance of Magistrate Judge Robert Spector, the parties reached an agreement on the terms of settlement on November 17, 2020, subject to court approval. First, the Army agreed that the ADRB will automatically reconsider thousands of cases, dating back nearly a decade to April 2011, in which the Board denied an upgrade to Honorable even though the veteran’s application contained evidence or contentions regarding diagnoses or symptoms of PTSD, TBI, MST, or related conditions. In re-adjudicating the decisions from April 2011 to the date of settlement, the ADRB will apply recent laws and Defense Department guidance requiring “liberal consideration” of mental health conditions. Additionally, the Army will send individual notices to a second group of veterans, whose applications the ADRB previously did not upgrade to Honorable in decisions between October 7, 2001, and April 16, 2011. Members of this second group of veterans may re-apply and receive the benefit of the recent liberalizing laws and guidance. These notices will also provide information about free legal services and medical programs to assist veterans pursuing an upgrade and information about what evidence might help them win an upgrade.
Second, the Army agreed to make a number of important changes to its general procedures and operations. These changes include additional training for Board members and staff, enhanced notices to veterans of legal and medical services that might assist their applications, and more detailed documentation requirements that the ADRB must follow in any written denials. Critically, the ADRB will also implement a universal telephonic hearing program so that veterans are not required to travel to Washington, D.C., to appear in-person for their discharge upgrade hearings but may participate from a residence or other preferred location instead.
Before the agreement is finalized, class members will have the opportunity to comment on the terms of the agreement in a fairness hearing before the District Court.
For additional information about the settlement agreement or upcoming fairness hearing, see the settlement documents and resources below. For assistance with the preparation of a discharge upgrade application, please see the informational documents and links below.
The law firm of Jenner & Block is co-counsel with the clinic on this matter.
Information about Discharge Upgrades and Legal Resources
Amended Complaint (filed Apr. 17, 2017)
Order Granting Class Certification (Dec. 21, 2018)
Order Denying Defendant’s Motion to Dismiss (January 9, 2019)
Settlement Agreement (November 17, 2020)
Selected Media Coverage
John Ismay, Army Agrees to Review Thousands of Unfavorable Discharges for Veterans, New York Times (Nov. 19, 2020)
Alex Horton, Army to review discharges for soldiers kicked out for suicide attempts and sexual assault trauma, Washington Post (Nov. 18, 2020)
Ben Kesling, Army to Weigh Upgrading Less-Than-Honorable Discharges, Wall Street Journal (Nov. 18, 2020)
Nikki Wentling, Army agrees to review thousands of 'bad paper' discharges as part of lawsuit settlement, Stars and Stripes (Nov. 18, 2020)
Leo Shane III, Settlement will ease process for Army veterans looking to upgrade less-than-honorable discharges, Military Times (Nov. 18, 2020)
New Haven Register Staff, Class-action suit could aid more than 50,000 veterans of Iraq, Afghanistan wars, New Haven Register (Dec. 21, 2018)
Justin Schecker, Iraq, Afghanistan Vets With PTSD Sue to Have Discharge Statuses Upgraded, NBC San Diego (Apr. 17, 2017)
Meghann Myers, Veterans with PTSD are suing the Army to have their discharges upgraded, Army Times (Apr. 17, 2017)
Peggy McCarthy, Connecticut Army Veteran Gets Discharge Upgrade, Hartford Courant (Apr. 2, 2018)
Julia Bergman, Former CT National Guard soldier wins fight to upgrade discharge, The Day (Oct. 27, 2017)