Your rights may be affected by a proposed Settlement in the class-action lawsuit of Johnson et al. v. Frank Kendall if you are a former member of the Air Force, Space Force, Air Force Reserve, or Air National Guard who has served between October 7, 2001 and the date the Court orders final approval of the settlement, and were discharged with an OTH or GEN after experiencing military sexual trauma or while having a diagnosis of PTSD, TBI, or another mental health conditions, or records documenting one or more symptoms of PTSD, TBI, or another mental conditions at the time of discharge. If approved by the Court, this proposed Settlement will resolve the dispute between Plaintiffs and the Defendant, dismiss the lawsuit, and obligate the parties to abide by the terms of the Settlement Agreement.

In 2018, plaintiffs Martin Johnson and Jane Doe (“Plaintiffs”) filed a Complaint alleging that since the start of military operations in Iraq and Afghanistan in October 2001, the Air Force 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 mental health conditions. Specifically, the Complaint alleged that Air Force veterans who experienced PTSD, TBI, MST, or mental health conditions in service and received OTH and GEN discharges were systematically denied status upgrades by the Air Force Discharge Review Board (“AFDRB”).

The 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 Airmen’s behavior. Plaintiffs further alleged that, despite the 1944 statute creating the AFDRB, longstanding regulations, and binding Department of Defense guidance that clarified the AFDRB’s obligation to give “liberal consideration” to the applications of former Airmen who incurred these mental health conditions, the AFDRB systematically failed to apply appropriate decisional standards or provide veterans with due consideration, in violation of the Administrative Procedure Act (“APA”), Section 504 of the Rehabilitation Act, and the Due Process Clause of the Fifth Amendment.

The Air Force has denied and continues to deny each and all of the claims and contentions alleged by Plaintiffs. The Air Force 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 Air Force specifically denies the allegations in the Complaint, including any allegation that the Air Force violated the APA, the Rehabilitation Act, or the Constitution or failed to follow appropriate procedures.

Plaintiffs 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 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 has also taken into account the uncertainty and risks inherent in any litigation. Defendant has therefore 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.

The class in this civil action (the “Settlement Class”) is 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.”

No.

The Settlement ensures that Class Members partially or fully denied relief between 2015 and 2023 will have their applications automatically reconsidered, and Class Members who applied between 2006 and 2015 and were partially or fully denied relief will have reapplication rights. The Settlement also provides that the Air Force will continue to provide a universal video-teleconference hearing program, reform certain AFDRB 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 AFDRB was decided from September 13, 2006 to September 12, 2015, then you are able to apply again to the AFDRB (or the AFBCMR if you were discharged more than 15 years ago). Your application will be considered under the revised standards in the Settlement Agreement, including the use of new decisional documents and procedures. The Air Force provides a universal video-teleconference hearing option, which means you will be able to appear by video if you request a personal appearance hearing. You should also receive a written notice describing the benefits you receive under the Settlement. If you choose to reapply, the AFDRB 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 who has not yet applied to the AFDRB, 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 by video if you apply for a personal appearance hearing, and the AFDRB 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 AFDRB, you will still be eligible for the universal video-teleconference hearing program and reformed AFDRB procedures.

If you have any questions about your application to the AFDRB, you may call 1-240-612-5458. If you leave a voicemail message, you will receive a call responding to your question, unless you clearly indicate a preference for a written response.

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:

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 November 13, 2023.

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 December 4, 2023 at 10:00 AM Eastern time.  Class members or their attorneys can attend the hearing by phone.

Join by Phone

Dial: +1-646-828-7666
Meeting ID: 161 129 7914
Passcode: 164628

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 1-888-256-6147 and at info@JohnsonAirForceSettlement.com. Additional details about the Settlement can be found in the Stipulation and Agreement of Settlement on the Important Documents page.