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A Proposed Legal Settlement Could Upgrade The Discharges Of Thousands of Ex-Soldiers

Former servicemember Stephen Kennedy, with his wife Catherine and four childr...

Credit: Courtesy of Stephen Kennedy

Above: Former servicemember Stephen Kennedy, with his wife Catherine and four children in an undated photo, sued after he received an other-than-honorable discharge from the Army.

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If approved by a federal court, the legal settlement will force the Army to review the discharges of recent veterans with mental health issues.

Aired: March 22, 2021 | Transcript

Tens of thousands of former soldiers with less than honorable discharges from the Army might get upgrades soon. In late March, a federal judge is expected to approve a nationwide class action settlement that would force the Army to reevaluate and possibly upgrade those discharges to honorable if there's evidence of a mental health condition.

Listen to this story by American Homefront.

The agreement calls on the Army to go back and look at thousands of less than honorable discharges for soldiers who served during the Iraq and Afghanistan wars. If they had a condition like post-traumatic stress disorder or a brain injury, they can become eligible to upgrade their discharges and get access to benefits through the Department of Veterans Affairs.

"Opening up the possibility of receiving an honorable discharge for our class members can be a very positive thing for them as it opens up a wide range of government benefits they may not have been eligible for," said Joshua Britt, a law student who helped file the lawsuit at Yale University's Veterans Legal Services Clinic.

If a federal court approves the settlement, it would expand reapplication rights for some former soldiers and grant automatic reconsideration for others.

RELATED: Troops With Service-Related Mental Health Issues Say It's Unfair To Kick Them Out Of Military

The lawsuit started four years ago with Iraq War veteran Stephen Kennedy. He came home with depression and PTSD, which spiraled into alcohol abuse and self-harm. The Army gave him a general discharge, blocking him from some veterans benefits, and it denied his upgrade applications until he sued.

"You can't get the benefits you need to actually recover from the thing that got you discharged in the first place," Kennedy said.

The Department of Veterans Affairs estimates as many as 20 percent of Iraq War veterans experience PTSD.

Honorable discharges are the gold standard among veterans. The designation comes with full access to VA benefits like health care, disability benefits, and higher education.

But discharge status isn't just about benefits. Bart Stichman, the Executive Director at the National Veterans Legal Services Program, said a stigma is attached to less than honorable discharges.

"If you don't get an honorable, it's a ticket to underemployment," Stichman said. "Employers often ask if you served in the military, and if so what type of discharge did you get. And if it's anything other than honorable, then it's very likely that they won't hire you."

In 2014, the Pentagon directed discharge review boards to give "liberal consideration" to veterans with PTSD. Stichman says the military tends to ignore that rule.

"Post-traumatic stress disorder, TBI [Traumatic Brain Injuries], military sexual trauma that existed while you were in service - that is supposed to be considered as mitigating circumstances that warrant an upgrade," Stichman said. "The boards weren't paying any attention to that."

The settlement would bring another big change: the Army Discharge Review Board could conduct upgrade hearings by phone. Joshua Britt at the legal services clinic said that will make the process less burdensome for soldiers.

"In the past, veterans would have to travel to Washington, D.C. to appear personally before the board, so the telephonic program should expand access," Britt said.

A federal judge in Connecticut is scheduled to hear public comments March 24 before finalizing the settlement.

Alexander Conyers, Deputy Assistant Secretary of the Army and Director of the Army Review Boards, said in a statement the settlement was reached after months of negotiation, and he called it a fair way to address soldiers' concerns.

"The Army is actively gathering the necessary resources, in terms of personnel and administrative support, and taking the appropriate steps to plan for the efficient adjudication of any requests for reconsideration pursuant to this settlement," the statement said.

If the settlement is approved, Kennedy wants to see similar changes made to discharge review boards in the rest of the military.

"The fact that the Army is making this change, I think it's really hard to make the argument that the Navy shouldn't be doing the same thing for both the Navy and the Marines," Kennedy said.

Or better yet, Kennedy hopes the military eventually will break the connection that ties benefits to discharge status.

This story is part of our American Homefront Project, a public media collaboration on in-depth military coverage with funding from the Corporation for Public Broadcasting and The Patriots Connection.

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