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

Frequently Asked Questions

 

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  • Your rights may be affected by a proposed Settlement in the class action lawsuit of Stephen M. Kennedy and Alicia J. Carson, et al. v. Ryan D. McCarthy if you are a former member of the Army, Army Reserve, or Army National Guard who has served between October 7, 2001, and the Effective Date of this proposed Settlement (which will be set if the Settlement is approved after the fairness hearing), and if you were discharged with OTH or GEN while having a diagnosis of, or showing symptoms attributable to, PTSD or PTSD-related conditions.  If approved by the court, this proposed Settlement will resolve the dispute between Plaintiffs and the Army, dismiss the lawsuit, and obligate the parties to abide by the terms of the Settlement Agreement.

  • In 2017, plaintiffs Stephen Kennedy and Alicia Carson (“Plaintiffs”) filed an Amended Complaint alleging that since the start of military operations in Iraq and Afghanistan in October 2001, the Army discharged thousands of people 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”). Specifically, the Amended Complaint alleged that Army 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 Amended Complaint further alleged that these veterans were denied status upgrades even as scientific and medical understandings of PTSD and TBI advanced and explained how these conditions can affect Soldiers’ behavior. Plaintiffs further alleged that, despite the 1944 statute creating the ADRB, longstanding regulations, and binding Department of Defense guidance that clarified the ADRB’s obligation to give liberal consideration to the applications of former Soldiers who incurred these mental health conditions, the ADRB systematically failed to apply appropriate decisional standards or provide veterans with due consideration, in violation of the Administrative Procedure Act ("APA") and the Due Process Clause of the Fifth Amendment.

    The Army has denied and continues to deny each and all of the claims and contentions alleged by Plaintiffs. The Army has expressly denied and continues to deny all charges of wrongdoing or liability against it arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged by Plaintiffs. The Army specifically denies the allegations in the Amended Complaint, including any allegation that the Army violated the APA or the Constitution or failed to follow appropriate procedures.

     
  • Class Counsel and Defendant agreed to settle the litigation because of: (1) the substantial benefits available to the Class under the terms of the agreement; (2) the risks and uncertainty of litigation, especially in complex actions such as this, as well as the difficulties and delays inherent in such litigation; and (3) the desirability of this Settlement Agreement to provide effective relief to the Class.

    Defendant has decided to settle based on its conclusion that further defense of the Litigation would be protracted and expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and upon the terms and conditions set forth in the Settlement Agreement. Defendant also has taken into account the uncertainty and risks inherent in any litigation.Defendant, therefore, has determined that it is desirable and beneficial to it that the Litigation be settled in the manner and upon the terms and conditions set forth in the Settlement Agreement.

  • On December 28, 2020, 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 the Settlement - who:

    1. 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);

    2. have not received discharge upgrades to Honorable; and

    3. 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."

  • The Settlement ensures that applicants partially or fully denied relief between 2011 and 2021 will have their applications automatically reconsidered, and applicants who applied between 2001 and 2011 and were partially or fully denied relief will have reapplication rights. The Settlement also provides that the Army will establish a universal telephonic hearing program within 18 months, reform certain ADRB procedures and training, and provide legal and medical referral information to future applicants.  For more information about Settlement benefits, please review the Class Notice and the Stipulation and Agreement of Settlement on the Important Documents page.

  • If you are a Class Member whose application to the ADRB was decided from October 7, 2001 to April 16, 2011, then you are able to apply again to the ADRB. Your application will be considered under the revised standards in the Settlement Agreement, including the use of new decisional documents and procedures. Within 18 months of the Settlement, the Army will establish a universal telephonic hearing option, which means you will be able to appear telephonically if you apply for a personal appearance hearing. You should also receive a written notice describing the benefits you receive under the Settlement. If you do reapply, the ADRB will also send you a letter explaining how you can find veterans service organizations and legal counsel to aid you in your application.

    If you are a Class Member whose application to the ADRB was decided from April 17, 2011 to the Effective Date of Settlement, then your application will be automatically reconsidered by the ADRB under the revised standards in the Settlement Agreement, including the use of new decisional documents and procedures. You may supplement your application with new evidence, and you will receive a written notice describing the benefits you receive under the Settlement and instructing you in how to provide this additional evidence.

    If you are a Class Member who has not yet applied to the ADRB, then any future application you submit will be considered under the revised standards in the Settlement Agreement, including the use of new decisional documents and procedures. You will also be able to appear telephonically if you apply for a personal appearance hearing, and the ADRB will send you a letter explaining how you can find veterans service organizations and legal counsel who might be able to help you with your application.

    If you are not a Class Member but are eligible to apply to the ADRB, you will still be eligible for the universal telephonic hearing program and reformed ADRB procedures.

  • If you wish to comment for or against the Settlement, you must serve by hand, mail, or e-mail your written objection and support papers, including any legal support for your objection and your status as a class member, upon the following:

    Class Counsel
    Michael J. Wishnie
    Veterans Legal Services Clinic
    Jerome N. Frank Legal Services Organization
    Yale Law School
    P.O. Box 209090
    New Haven, CT 06520-9090
    kennedy.settlement@yale.edu

    Defense Counsel
    Natalie N. Elicker
    U.S. Attorney’s Office for the District of Connecticut
    157 Church St, 25th Floor
    New Haven, CT 06510
    Natalie.Elicker@usdoj.gov

     

    You must also file these documents with the Court at:

    Clerk of the Court
    United States District Court for the District of Connecticut
    141 Church Street
    New Haven, CT 06510

    All written objections must be received by March 3, 2021.

    Objections or comments will not be considered by the Court unless you have given notice in the manner described. If you intend to object to the Settlement and desire to present evidence at the fairness hearing, you must include in your written objections the identity of any witnesses you may call to testify and the exhibits you intend to introduce into evidence at the fairness hearing. If you fail to object in the manner described you shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to any aspect of the Settlement, unless otherwise ordered by the Court. You may present your comments yourself or you may have an attorney present them for you.

  • Before the Settlement can become final, it must be approved by the Court. Any affected person may comment for or against the proposed Settlement. In order to give class members an opportunity to express their comments in support or objection to the Settlement, a hearing will be held before the Hon. Charles S. Haight, Jr., via the videoconferencing software Zoom on March 24, 2021 at 10:00 a.m. EDT. Class members or their attorneys can attend the hearing using the following link: https://www.zoomgov.com/j/1617763525pwd=dmpTVnRSL2xGZ3J2MVBXYVhlVlVjZz09, or by dialing in to +1 (646) 828-7666. The meeting ID for the hearing is 161 776 3525 and the passcode is 071273.

     
  • Yes, you are invited to attend the video hearing whether or not you have given notice that you want to comment on the Settlement, but you are not required to attend in order to submit a comment.

  • You may contact the Settlement Administrator at 1-888-906-0563 and at info@kennedysettlement.com. Additional details about the Settlement can be found in the Stipulation and Agreement of Settlement on the Important Documents page.

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