Stephen M. Kennedy and Alicia J. Carson, et al., v. Ryan D. McCarthy
Kennedy v. McCarthy
3:16-cv-2010-CSH

Welcome to the Kennedy v. McCarthy Settlement Website

What is this Lawsuit about?

A lawsuit was filed alleging that since the start of military operations in Iraq and Afghanistan, the Army discharged thousands of Soldiers 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 Army Discharge Review Board ("ADRB").  The Army 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:

"Members and former members of the Army, Army Reserve, and Army National Guard who served during the Iraq and Afghanistan era - the period between October 7, 2001 to the Effective Date of Settlement - who

  • were discharged with a less-than-Honorable service characterization (this includes GEN and OTH discharges from the Army, Army Reserve, and Army National Guard, but not Bad Conduct or Dishonorable discharges);
  • have not received discharge upgrades to Honorable; and
  • have diagnoses of PTSD or PTSD-related conditions or records documenting one or more symptoms of PTSD or PTSD-related conditions at the time of discharge attributable to their military service under the Hagel Memo standards of liberal and special consideration."

SUMMARY OF SETTLEMENT TERMS

The full text of the proposed Joint Settlement Agreement can be viewed at https://arba.army.pentagon.mil/adrb-overview.html.

Automatic Reconsideration for Certain 2011-2020 Applicants and Reapplication
Rights for Certain 2001-2011 Applicants

  • The ADRB will automatically reconsider its decisions in cases that: (a) include a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH (the Army refers to these as "Special Cases"); (b) were issued by the ADRB between April 17, 2011 and the Effective Date of Settlement (which will be set if the Settlement is approved after the fairness hearing); and (c) whose outcome (which the Army refers to as "grant state") indicates the applicant did not receive the full relief requested.
    • The Army 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.
    • Previous applicants to the ADRB who are not eligible for automatic reconsideration according to the paragraph above, and whose cases were either denied or only granted partial relief by the ADRB between April 17, 2011, and September 4, 2014, are eligible to reapply to the ADRB. Plaintiff will send notice to these applicants informing them of their right to reapply, including referral information for potential free legal representation and medical services.
  • Previous applicants to the ADRB whose applications (a) are Special Cases, (b) were issued between October 7, 2001 and April 16, 2011, and (c) whose grant state indicates they did not receive the full relief requested, have the right to apply again to the ADRB or, if the applicant was discharged more than 15 years ago, to the Army Board for Correction of Military Records (ABCMR). Applicants discharged more than 15 years ago must apply to the ABCMR because the ADRB’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 will post notice of reapplication rights for 2001-2011 applicants and reconsideration for 2011-2020 applicants on its website, including at https://arba.army.pentagon.mil/adrb-overview.html and https://arba.army.pentagon.mil/adrb-faq.html, within 45 days of the date the Settlement is approved.

Telephonic Personal Appearance Hearing Program

  • The Army will implement a Telephonic Personal Appearance Hearing Program for the ADRB within 18 months of the final approval of the Settlement. As a result, all ADRB applicants who request a Personal Appearance Hearing will be able to choose to participate by telephone from their personal residences or other location of their own choice.

Revised Decisional Documents & Training Procedures

  • The Army 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 ADRB does not grant a full upgrade to Honorable.
  • The Army will conduct annual training for ADRB 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.

For More Information

Visit this website often to get the most up-to-date information.

Mail

Kennedy v. McCarthy Settlement
c/o JND Legal Administration
PO Box 91343
Seattle, WA 98111