What is this Lawsuit about?

A lawsuit was filed alleging that since the start of military operations in Iraq and Afghanistan, the Air Force discharged thousands of service members with Other Than Honorable ("OTH") or General (Under Honorable Conditions) ("GEN") service characterizations 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 Air Force Discharge Review Board ("AFDRB"). The Air Force has agreed to settle the lawsuit while denying these allegations.
 

Who is included in the Class?

The Court has preliminarily approved a class in this civil action (the “Settlement Class”) defined as follows:

“Members and former members of the Air Force, Space Force, Air Force Reserve, and Air National Guard who served in the military during the Iraq and Afghanistan eras, defined as those with discharge dates from October 7, 2001 through the Effective Date of Settlement, and who:

1. were discharged from the Air Force, Space Force, Air Force Reserve, or Air National Guard with the following service characterizations: Under Honorable Conditions (General), or Under Other Than Honorable Conditions (UOTHC); but not the following service characterizations: Bad Conduct Discharges (BCDs), Dishonorable discharges, Uncharacterized discharges, or Dismissals;
2. who, if they submitted a previous discharge upgrade application or application for reconsideration, submitted at least one such application on or after September 13, 2006;
3. have not received upgrades of their service characterizations to Honorable; and
4. have diagnoses of post-traumatic stress disorder (“PTSD”), Traumatic Brain Injury (“TBI”), or other mental health conditions, or have experiences of sexual assault or sexual harassment, or records documenting that one or more symptoms of PTSD, TBI, other mental health conditions, or experiences of sexual assault or sexual harassment existed/occurred during military service, under the Kurta Memo standard of liberal consideration.”

SUMMARY OF SETTLEMENT TERMS

The full text of the proposed Joint Settlement Agreement can be viewed here.
 

Automatic Reconsideration for Certain Decisions Between 2015-2023

• The AFDRB will automatically reconsider its decisions that meet all of the following four criteria:  (a) the applicant is a member of the Settlement Class, (b) whose application was submitted on or after September 13, 2015 to the Effective Date of Settlement, (c) where the grant state indicates the applicant did not receive a full upgrade to Honorable, and (d) where the denial was not based on the discharge date being more than 15 years before the application date. Applicants meeting the above criteria are entitled to automatic reconsideration by the AFDRB under the terms of this settlement, regardless of discharge date.  The applicants who are entitled to reconsideration under this paragraph are henceforth referred to as the “Automatic Reconsideration Group Applicants.”
• The Air Force 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 2006-2015

• Previous applicants to the AFDRB whose applications (a) were submitted between September 13, 2006 and September 12, 2015, and (b) whose outcome (which the Air Force refers to as “grant state”) indicates the applicant did not receive a full upgrade to Honorable, have the right to apply again to the AFDRB or, if the applicant was discharged more than 15 years ago, to the Air Force Board for Correction of Military Records (AFBCMR). Applicants discharged more than 15 years ago must apply to the AFBCMR because the AFDRB’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 2006-2015 applicants and automatic reconsideration for 2015-2023 applicants on its website within 45 days of the date the Settlement is approved.
   

Video-Teleconference Personal Appearance Hearing Program

• The Air Force will continue to offer a Video-Teleconference (VTC) Personal Appearance Hearing Program for the AFDRB. As a result, all AFDRB 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 Air Force has incorporated new language and procedures into its decisions, including a requirement for detailed explanations in cases where the AFDRB does not grant a full upgrade to Honorable and an explanation of the mental health professional’s opinion.
• AFDRB members and staff will attend annual trainings tailored to applications that include a diagnosis or evidence of symptoms of, PTSD, TBI, other mental health conditions, or military sexual assault or sexual harassment.
   

Notice for New Applications

• In the future, when the AFDRB 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.
   

Notice Inviting Additional Evidence

• For a one-year trial period, when applicants apply to the AFDRB and claim to have PTSD, TBI, or other mental health conditions, or to have experiences of military sexual assault or sexual harassment, the Board’s mental health professional will send the applicant a notice if they think the application in its current form may have insufficient records to establish that the mental health condition or experience existed in service.
• Applicants will then be able to send additional records to supplement their application.
   

New AFDRB Phone Number to be Provided to Applicants

• For a one-year trial period, the AFRDB will provide a phone number for applicants with questions to leave voicemail messages. Applicants who call should receive a response to their voicemail via phone, unless the applicant clearly indicates a preference for a written response in the voicemail.