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Veterans Sue Navy Over Discharge Upgrade Denials

Posted by Gregory M. Rada | Legal Update

Earlier this month, attorneys working with the Yale Law School Veterans Legal Services Clinic filed a class action law suit in federal court alleging that the Navy illegally denies requests for discharge upgrades made by veterans with PTSD and other mental health conditions.  

OTH Discharge Denials Attorney

Is the Navy illegally denying requests for discharge upgrades made by veterans with PTSD?

The lead plaintiff is a Marine veteran of the 2003 invasion of Iraq named Tyson Manker. Mr. Manker enlisted at age 18, saw active combat in Iraq, was awarded commendations for his service, and returned home showing signs of PTSD and traumatic brain injury. Several months later he received an other-than-honorable (OTH) discharge for a minor infraction attributable to behavior directly related to his mental health condition. Because of his OTH discharge, the VA denied him needed support and resources. When he applied for a discharge upgrade, the Navy Discharge and Review Board (NDRB)—which hears claims from Navy and Marine Corp veterans—summarily denied his request.

Mr. Manker’s story is all too common. Since 2001, more than 2 million Americans have served in Afghanistan or Iraq. Of those veterans, more than half suffer from PTSD and related mental health conditions. And, as I have noted in previous posts, service-connected mental health conditions often result in OTH discharges for relatively minor infractions caused by the conditions. Among U.S. Marines deployed to Iraq and Afghanistan, Marines with a diagnosis of PTSD are eleven times more likely to have a misconduct discharge compared to their peers who did not have a psychiatric diagnosis. This problem is widely acknowledged by the VA leadership and by Congress.

The lawsuit filed on behalf of Mr. Manker alleges that the Navy is violating the law by issuing near-blanket denials to veterans seeking discharge upgrades in connection with mental health issues. The law requires discharge review boards to give “liberal consideration” to discharge upgrade applications based on credible claims of service-connected PTSD. This requirement has been the law since at least 2016, and was specifically clarified in guidance documents issued by the Department of Defense (DOD) last August.   

But while the Army and Air Force began granting significantly more discharge upgrade applications in response to the requirement for “liberal consideration,” the Navy review board did not. Indeed, the new guidance barely moved the NDRB’s numbers. According to records released by the DOD, since 2016 the NDRB has granted discharge upgrades in just 15% of cases where the applicant cited PTSD as a contributing factor. By comparison, the Army board has granted upgrades in 45% of such cases, and the Air Force board in 37% of such cases. This statistical discrepancy alone suggests that the NDRB is failing to follow the law.

It should not be impossible for veterans that have received OTH discharges for misconduct attributable to mental health conditions to receive discharge upgrades. But it remains to be seen whether this lawsuit will move the Navy toward needed reform. Unless the Navy seeks an extension of time to answer the complaint, they must file their answer not later than May 5, 2018. I’ll be watching.