Army to Review More Than 3,500 'Bad Paper' Discharges for Post-9/11 Vets

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The U.S. Army plans to review all other-than-honorable discharges given between April 17, 2011, and Nov. 17, 2020, to soldiers who were diagnosed or had symptoms of a mental health condition or brain injury.

The automatic review, announced Tuesday by the service, is part of a settlement in a class-action lawsuit brought by two veterans who say they wrongly received other-than-honorable discharges for behavior linked to a psychiatric condition, such as post-traumatic stress disorder.

The suit, Kennedy v. McCarthy, also charged that the Army did not adequately handle requests for upgrades from them and others, failing to consider their circumstances or behavioral health conditions.

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Under the agreement, the Army will also notify soldiers who received upgrade denials between Oct. 7, 2001, and April 16, 2011, informing them that they can reapply for a status change, according to a statement from the Army Public Affairs Office.

According to the service, 3,500 active-duty, Reserve and National Guard troop discharges will receive an automatic review.

Thousands more -- between 50,000 and 100,000 -- may be eligible to apply for upgrades, according to the Veterans Legal Services Clinic at Yale Law School, which represented the plaintiffs, along with the law firm of Jenner & Block.

In 2016, the Defense Department announced efforts to increase awareness of the opportunity for veterans to request a review of their discharges and an upgrade. The following year, the DoD released additional guidance to clarify the circumstances that would be covered by a review.

In their lawsuit, Steve Kennedy, a former 82nd Airborne soldier and Iraq War veteran, and Alicia Carson, a National Guard veteran who deployed to Afghanistan for nearly a year, said the Army Discharge Review Board ignored the policy.

Shortly before his discharge, Kennedy was suicidal and suffered from post-traumatic stress disorder, according to court documents. He went absent without leave to attend his own wedding; as a result, he was demoted to private first class and kicked out of the service.

Kennedy, now a University of Connecticut Law student, received a discharge status upgrade in 2018, but decided to pursue the lawsuit.

Carson also received an upgrade to her discharge in 2018, but chose to remain with the suit, which was certified as a class action that year.

The settlement, which was agreed to on Nov. 17, is subject to court approval by the U.S. District Court of Connecticut.

In a hearing set for March 24, the court will decide whether to grant final approval of the settlement.

The settlement also requires the Army to increase the amount of case review training that board members receive, and will allow soldiers to participate in their review board hearings by phone -- a change from the current requirement that they appear in person in Washington, D.C. to argue their cases.

That change, said Kristofer Goldsmith, an Army veteran who has fought for years to reinstate rights for veterans with less-than-honorable discharges, will help many who lack the resources to fight their case.

"Not having to fly to DC -- the video conferencing that is part of the settlement should have happened a long time ago," Goldsmith said.

Other-than-honorable and general discharges, sometimes called "bad paper" discharges, limit veterans' access to Department of Veterans Affairs benefits, including medical services, disability compensation and education benefits. They also can have an impact on a veterans' long-term earning power, since many employers will not hire anyone with less than a good-conduct discharge.

The Veterans Legal Services Clinic is arguing a similar case against the Navy for decisions made by the Navy Discharge Review Board, which also handles cases from the Marine Corps.

Goldsmith said the settlement with the Army is likely to bolster the case against the Navy, which has seen a large number of other-than-honorable discharges for Marines.

A settlement is not an admission of guilt by the defendant -- in this case, the Army. Veterans wishing to write to the court or to appear during the decision hearing may contact attorneys through the settlement's website or email the Yale Veterans Legal Services Clinic.

Goldsmith received an upgrade to his discharge in 2019, following a years-long struggle and multiple denials, including one on the anniversary of the suicide attempt that led to his discharge.

He said he is glad soldiers will have an easier time in the appeals process than he did.

"That was super effing traumatic. Knowing that lot of soldiers are going to experience the opposite, hopefully with little effort on their own part. … I'm glad [they] won't have to suffer as much as I did," Goldsmith said.

-- Patricia Kime can be reached at Patricia.Kime@Monster.com. Follow her on Twitter @patriciakime.

Related: The VA is Seeking Input on Updating Eligibility Rules for Bad Paper Discharges

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