United States District Court, D. Connecticut
STEPHEN M. KENNEDY, and ALICIA J. CARSON, individually and on behalf of all similarly situated persons, Plaintiffs,
MARK ESPER, Secretary of the Army,, Defendant.
MEMORANDUM OF DECISION ON MOTION FOR CLASS
W. Eginton, Senior U.S. District Judge
Stephen Kennedy and Alicia Carson, veterans of the conflicts
in Iraq and Afghanistan respectively, filed this action
pursuant to the Administrative Procedure Act
(“APA”) and the Fifth Amendment due process
clause, individually and on behalf of all similarly situated
persons. Specifically, plaintiffs seek a class-wide
injunction ordering the Army Discharge Review Board
(“ADRB”) reviewing less-than-Honorable discharges
to follow the directive of the memorandum issued by the
Secretary of Defense Hagel (“Hagel Memo”) to give
“liberal consideration” to diagnoses of
post-traumatic stress disorder (PTSD) and similar mental
health conditions, and records indicating symptoms of those
conditions. Plaintiffs have moved for certification of a
class pursuant to Federal Rule of Civil Procedure 23(b)(2)
seeking equitable relief. Specifically, plaintiffs'
proposed class consists of all Army, Army Reserve, and Army
National Guard veterans of the Iraq and Afghanistan era-the
period between October 7, 2001 to present-who: (a) were
discharged with a less-than Honorable service
characterization (this includes General and Other than
Honorable discharges from the Army, Army Reserve, and Army
National Guard, but not Bad Conduct or Dishonorable
discharges); (b) have not received discharge upgrades to
Honorable; and (c) 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.
opposes the motion for certification on numerous grounds. For
the following reasons, the motion for certification will be
following background to plaintiffs' claims is reflected
in the allegations of the amended complaint and the
parties' briefs and the exhibits thereto.
joined the Army in 2006 and served in Iraq in 2007 and 2008.
After his combat deployment, Kennedy returned to the United
States with severe PTSD and major depression that the Army
failed to diagnose or treat adequately.
March 2009, Kennedy's request to take leave to attend his
wedding ceremony in May 2009 was denied due to a scheduled
unit training exercise. In May 12, 2009, Kennedy took an
absence without leave (“AWOL”) to attend his
wedding. After two weeks of AWOL, Kennedy returned to Fort
Bragg, at which time he was referred for a command directed
behavioral health evaluation. He was evaluated for PTSD and
traumatic brain injury, but he did not meet criteria those
diagnoses. He was diagnosed with major depressive disorder.
27, 2009, Kennedy was separated from active duty with a
General, Under Honorable Conditions discharge. Kennedy
represents that after he began mental treatment, he realized
that his misconduct resulted from his undiagnosed and
2010, Kennedy applied to the ADRB for a change to his
discharge status. On November 19, 2010, the ADRB conducted a
record only review and denied his application.
February 2015, Kennedy submitted another application to the
ADRB for a change to his discharge status. He submitted
documentary evidence to support his assertion that his PTSD
was a factor in his AWOL. The ADRB denied his application.
Kennedy asserts that the ADRB failed to follow, or even
reference, the instructions issued in the Hagel Memo.
December 8, 2016, Kennedy filed the original complaint in
this case. In the complaint, Kennedy seeks to set aside the
October 2015 ADRB decision and have the Court direct that his
characterization of service be changed to Honorable.
April 17, 2017, Kennedy filed an amended complaint that
joined Carson to the action. Carson was deployed to
Afghanistan from February until November 2010. During her
deployment, Carson earned a promotion in rank, an Army
Commendation, and a Combat Action Badge.
her return to Connecticut, Carson informed her commander that
she was experiencing symptoms of PTSD, and as result, she was
referred to a medical provider for treatment. She received
mental health services through the Department of Veterans
Affairs and the Hartford Vet Center. She received continual
treatment for her symptoms related to PTSD and a traumatic
brain injury for approximately 18 months. Thereafter, Carson
had several unexcused absences and was separated from service
for unsatisfactory performance. She was discharged on May 29,
2012. The Connecticut National Guard characterized her
service as General, Under Honorable Conditions.
April 2015, she applied to the ADRB seeking a discharge
upgrade to Honorable and a change to the reason for
separation to “Other designated physical or mental
conditions.” In October 2015, the ADRB denied her
upgrade application, noting that the pertinent documents were
“NFI” or “Not in File.” The ADRB
reasoned that denial was appropriate because the “facts
and circumstances leading to discharge are unknown.”
complaint, Carson requests to have her discharge upgraded to
Honorable and seeks to have the Army prevented from recouping
any part of her unearned enlistment bonus.
plaintiffs had filed a motion for class certification,
defendant moved to dismiss or, in the alternative,
voluntarily remand. On September 19, 2017, the Court remanded
both of the plaintiffs' cases to the ADRB to