GENERAL UPDATE: THE COURT GRANTED APPROVAL OF THE SETTLEMENT ON FEBRUARY 15, 2022
What is this Lawsuit about?
A lawsuit was filed alleging that since the start of military operations in Iraq and Afghanistan, the Navy and Marine Corps discharged thousands of Sailors and Marines with Other Than Honorable ("OTH") or General (Under Honorable Conditions) ("GEN") statuses due to misconduct attributable to post-traumatic stress disorder ("PTSD"), traumatic brain injury ("TBI"), military sexual trauma ("MST"), and other behavioral health conditions ("OBH"). Furthermore, the lawsuit alleges that veterans who experienced PTSD, TBI, MST, or OBH in service and received OTH and GEN discharges were systematically denied status upgrades by the Navy Discharge Review Board ("NDRB"). The Navy has agreed to settle the lawsuit while denying these allegations.
Who is included in the Class?
The Court certified a class in this civil action (the “Settlement Class”) defined as follows:
"Veterans who served during the Iraq and Afghanistan Era—defined as the period between October 7, 2001 and February 15, 2022—who:
- were discharged from the Navy, Navy Reserves, 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;
- have not received upgrades of their discharge statuses to Honorable from the NDRB; and
- 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.”
SUMMARY OF SETTLEMENT TERMS
The full text of the Joint Settlement Agreement can be viewed at https://www.secnav.navy.mil/mra/CORB/Pages/NDRB/default.aspx.
Automatic Reconsideration for Certain Decisions Between 2012-2022
- The NDRB will automatically reconsider its decisions that meet all of the following three criteria: (a) Special Cases (defined as any application for a discharge upgrade or change in narrative reason for separation that includes a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH); (b) issued on or after March 2, 2012 until February 15, 2022; and (c) whose outcome (which the Navy refers to as “grant state”) indicates the applicant did not receive a full upgrade to Honorable.
- The Navy will send notice of this automatic reconsideration process to all eligible applicants, inviting them to submit additional evidence within 60 days and providing referral information for potential free legal representation and medical services.
Reapplication Rights for Certain Decisions Between 2001-2012
- Previous applicants to the NDRB whose decisions (a) were issued between October 7, 2001 and March 2, 2012, and (b) whose outcome (which the Navy refers to as “grant state”) indicates the applicant did not receive a full upgrade to Honorable, have the right to apply again to the NDRB or, if the applicant was discharged more than 15 years ago, to the Board for Correction of Naval Records (BCNR). Applicants discharged more than 15 years ago must apply to the BCNR because the NDRB’s statute of limitations is 15 years. Class counsel will send notice to these applicants informing them of their right to reapply, including referral information for potential free legal representation and medical services.
- Defendant has posted notice of reapplication rights for 2001-2012 applicants and automatic reconsideration for 2012-2022 applicants on its website, including at https://www.secnav.navy.mil/mra/CORB/Pages/NDRB/default.aspx.
Video-Teleconference Personal Appearance Hearing Program
- The Navy will implement a Video-Teleconference (VTC) Personal Appearance Hearing Program for the NDRB. As a result, all NDRB applicants who request a Personal Appearance Hearing will be able to choose to participate by video-teleconference from their personal residences or other location of their own choice.
Revised Decisional Documents & Training Procedures
- The Navy agrees to incorporate new language and procedures into the Military Review Boards Standard Operating Procedures that governs applications, including a requirement for detailed explanations in cases where the NDRB does not grant a full upgrade to Honorable.
- The Navy will conduct annual training for NDRB members and staff tailored to applications that include a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH.
Notice of Referrals for New Applications
- In the future, when the Board writes to acknowledge receipt of a new application, the Board will inform the applicant of how to find potential free legal representation and Veterans Service Organizations who might be able to assist with their application.
- The notice will also provide information about how applicants can submit additional relevant medical evidence.
Online Submission and Tracking for NDRB Applications
- The Navy has agreed to begin accepting NDRB applications and supplemental materials online.
- The Navy will create a web-based application portal for online submission of discharge upgrade applications and supplemental materials to the NDRB.
- This system will also allow applicants to track the status of their applicants online and will contain accessible contact information for status checks on applications.