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Kennedy v. Esper

United States District Court, D. Connecticut

December 21, 2018

STEPHEN M. KENNEDY, and ALICIA J. CARSON, individually and on behalf of all similarly situated persons, Plaintiffs,
MARK ESPER, Secretary of the Army,, Defendant.


          Warren W. Eginton, Senior U.S. District Judge

         Plaintiffs 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.

         Defendant opposes the motion for certification on numerous grounds. For the following reasons, the motion for certification will be granted.


         The following background to plaintiffs' claims is reflected in the allegations of the amended complaint and the parties' briefs and the exhibits thereto.


         Kennedy 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.

         In 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.

         On July 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 untreated PTSD.

         In 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.

         In 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.

         On 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.


         On 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.

         Upon 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.

         In 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.”

         In the 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.

         Remand and Relief

         After 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 “revisit ...

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