“Liberal Consideration” and Discharge Review Boards – Mason Veterans and Servicemembers Legal Clinic

Written By Spring 2021 M-VETS Student Advisor Arianna Drerup.

The Hagel Memorandum, and subsequently the Kurta Memorandum, require the Discharge Review Boards (DBRs) to give “liberal consideration” to “veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD [Post-Traumatic Stress Disorder]; TBI [Traumatic Brain Injury]; sexual assault; or sexual harassment.”[1] However, DRBs struggle to apply the “liberal consideration” standard.[2]

DRBs and the History of “Liberal Consideration”

Under 10 U.S.C. § 1533(a), DRBs are authorized “to review the discharge or dismissal… of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member[.]”[3] The “board established under this section may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings.”[4]

Before 2014, the Army granted relief for less than 5% of applications for discharge upgrades from Vietnam veterans based on PTSD.[5] On 3 March 2014, five Vietnam combat veterans and various veterans’ organizations filed a class action lawsuit to seek relief for Vietnam veterans who developed PTSD and received an other-than-honorable discharge.[6] The Department of Defense responded by issuing new guidance, the Hagel Memorandum (Hagel Memo), to the DRBs to give “liberal consideration” to veterans with PTSD seeking a discharge upgrade.[7] As a result, the district court dismissed Monk v. Mabus and remanded the claims of the five named plaintiffs to their respective DRBs so that their claims could be reconsidered under the new guidance.[8] In 2015, all five plaintiffs received an upgrade.[9]

An Army Board for the Correction of Military Records (ABCMR) joint study found that discharge upgrades increased from, 3.7% to 45% one year after the implementation of the Hagel Memo.[10] In 2016, Congress codified parts of the Hagel Memo. DRBs were now statutorily required to grant “liberal consideration” to the applicants with symptoms related to PTSD or TBI.[11] However, despite this initial increase in granting discharge upgrades, the DRBs still struggled with implementing the “liberal consideration” standard. [12]

Class Action Against the U.S. Army

In 2016, Iraq and Afghanistan veterans filed a class action lawsuit against the U.S. Army to enforce the guidance of the Hagel Memo.[13] In Kennedy v. Esper, the plaintiffs claimed that the Army Discharge Review Board ignored the standards in the Hagel Memo and followed “these binding instructions only sporadically and unpredictably, and when it does purport to follow them, it does so inadequately.”[14] On 25 August 2017, while Kennedy v. Esper was still pending, the Department of Defense issued the Kurta Memorandum (Kurta Memo) to provide more guidance and clarify the concepts in the Hagel Memo.[15]

On 18 December 2020, the court in Kennedy v. Esper, now Kennedy v. McCarthy, issued an order granting preliminary approval of class action settlement.[16] In the court’s preliminary findings, it determined that the Stipulation and Agreement of Settlement was “fundamentally fair, reasonable, adequate, and in the best interests of the Settlement Class members.”[17]A Fairness Hearing, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure was scheduled for 24 March 2021.[18] If the court issues a Final Approval Order, the Amended Complaint will be dismissed with prejudice.[19]

Class Action Against the U.S. Navy

On 2 March 2018, Iraq and Afghanistan veterans filed a complaint against the U.S. Navy in Manker v. Spencer.[20] One of the allegations in the complaint state that “the NDRB frequently denies veterans’ discharge upgrade applications on the basis of the presumption of government regularity without explaining why this presumption applies and why the contrary evidence provided is insufficient to rebut it, particularly in view of the federal statute that codifies the ‘liberal consideration’ standard set forth in the Hagel Memo.”[21] The plaintiffs moved to certify a class on behalf Navy and Marine Corps veterans who were denied discharge upgrades by the Naval Discharge Review Board (NDRB).[22] The court granted class certification[23] and “a judicial settlement conference was scheduled for February 2020.”[24]

“Liberal Consideration” Under the Hagel and Kurta Memos

The standards for an upgrade are equity and propriety.[25] The Hagel and Kurta Memos did not change these legal standards. “Liberal consideration” requires that the DRBs consider the facts liberally with an understanding that behaviors associated with a mental health condition may appear to be misconduct.[26] The Memos relaxed the evidentiary standards for applicants with PTSD or PTSD-related conditions.[27]

Parts of the Hagel Memo were codified by 10 U.S.C. § 1553. The statute requires “liberal consideration” for two types of cases.[28] These cases are: (1) where the former member “was deployed in support of a contingency operation” and “was diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing a post-traumatic stress disorder or traumatic brain injury as a consequence of that deployment and (2) cases involving “post-traumatic stress disorder or traumatic brain injury as supporting rationale… whose [PTSD] or [TBI] is related to combat or military sexual trauma….”[29] The DRBS are required to review these types of cases “with liberal consideration to the former member that [PTSD] or [TBI] potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the member’s discharge or dismissal.”[30] The Hagel Memo directs DRBs to “exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge…” and that PTSD or PTSD-related conditions “will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service.”[31] Liberal consideration also means that PTSD as “not a likely cause of premeditated misconduct.”[32]

The Kurta Memo is a clarifying document that was meant to provide “greater uniformity amongst the review boards” and for “veterans[to] be better informed….”[33] The Kurta Memo recognizes that “[i]nvisible wounds …frequently [result] in limited records for the boards to consider, often through no fault of the veteran….”[34] The Kurta Memo goes on to say that “[s]tandards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity to relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later.”[35]

The clarifying guidance provides an analytical framework made up of four questions the DRBs should implement to ensure that the veteran is receiving “liberal consideration.”[36] These questions are: “(a) Did the veteran have a condition or experience that may excuse or mitigate the discharge? (b) Did that condition exist/experience occur during military service? (c) Does that condition or experience actually excuse or mitigate the discharge? [and] (d) Does that condition or experience outweigh the discharge?”[37] The Kurta Memo then goes on to state that evidence is not limited to the veteran’s service record and that the DRBs can also consider other evidence such as mental health counseling centers, pregnancy test, and statements.[38]

When determining if there was a condition or experience, the Kurta Memo dictates that “[e]vidence that may reasonably support more than one diagnosis should be liberally considered as supporting a diagnosis, where applicable, that could excuse or mitigate the discharge.”[39] However, “[l]iberal consideration is not required in cases involving pre-existing conditions which are determined not to have been aggravated by military service.”[40] The Kurta Memo then goes on to state that “[p]remeditated misconduct is not generally excused by mental health conditions, including PTSD; TBI; or by a sexual assault or sexual harassment experience.”[41] Although, the Kurta Memo does allow the DRB to consider substance-seeking behavior as a symptom of a mental health condition and that the DRB should “exercise caution in assessing the causal relationship….”[42]

The Memo’s attachment contains a list of concepts that describe “liberal consideration.”[43] These concepts include the Memo’s recognition that it is unfair to the veteran to expect a higher standard of proof because things like “TBI; mental health conditions, such as PTSD; and victimology were far less understood than they are today.”[44] The list also mentions that while there are circumstances that warrant relief, “liberal consideration does not mandate an upgrade.”[45]

Tension Between “Liberal Consideration” and Other DRB Presumptions

Veterans and veteran advocates were hopeful that the Hagel and Kurta Memos would increase the success rates of discharge upgrade applicants.[46] According to Professor Jessica Lynn Wherry, “despite some initial increases in upgrade rates, over time, the policy has not been implemented as expected” and that “[r]ecent reports from the boards suggest that liberal consideration has not provided the intended relief as the typically low rate of upgrades continues.”[47] In Professor Wherry’s research, she reviewed 477 Naval Discharge Review Board (NDRB) decisions and found various trends and language used in the decisions that suggested that the NDRBs were struggling to apply the “liberal consideration” standard.[48] Professor Wherry found that many of the decisions relied on a “presumption of regularity” to deny an applicant’s discharge upgrade and that the decisions also failed to apply the relaxed evidentiary standards required for “liberal consideration.”[49]

Under 32 C.F.R. § 724.211, the DRBs presume “regularity in the conduct of governmental affairs” and that the “presumption can be applied in any review unless there is substantial credible evidence to rebut the presumption.”[50] However, the Hagel and Kurta Memos were responses to the military failing to recognize PTSD as a mitigating factor.[51] This tension is not addressed in the Hagel and Kurta Memos and the “boards treat this regulatory presumption as a blanket justification for denying relief.”[52] This is evidenced in the complaint in Manker v. Spencer.[53] The presumption of regularity is inconsistent with “liberal consideration.”[54] According to Professor Wherry, “[w]ithout letting go of the presumption, the Board cannot truly and fully apply liberal consideration.”[55]

The DRBs also struggle to apply the relaxed evidentiary standards required by the Hagel and Kurta Memos because there is no guidance for how DRBs should “exercise caution” when considering the nexus between a mental health condition and the misconduct that led to an other-than-honorable discharge. While the Kurta Memo acknowledges that there may be a causal relationship between substance-seeking behavior and the symptoms of a mental health condition, it does not provide any guidance as to how the DRB should “exercise caution in assessing” this relationship.[56] “Rather than extend liberal consideration in cases where the nexus is not clear, the Board has gone out of its way to deny relief based on insufficient nexus.”[57]

Could the New Discharge Appeal Review Board Provide “Liberal Consideration”?

The 2020 National Defense Authorization Act create a new Board, the Discharge Appeal Review Board.[58] “The formation of a new board of appeals for discharges was designed to ensure all previous decisions on appeals were made according to the law and DoD policy.”[59] In April 2021, the Pentagon announced that the new Board would create a new path for relief for service members who were separated on or after December 20, 2019.[60] This Board would allow a final review of an applicant’s request for a discharge upgrade after all other administrative options were exhausted.

While the veteran has another opportunity to have a new Board review his or her request for relief, “the new board will take a very tightly defined look at each case.”[61] The Board may only review the “records from the Board of Correction of Military/Naval Records’ case file” and “will not see people personally.”[62] Perhaps this new Board will encourage the DRBs to apply “liberal consideration” and provide more relief to applicants suffering from PTSD, TBI, or other mental health conditions. However, given the narrow review the Discharge Appeal Review Board can conduct, there is also the fear that it would act as a rubber stamp and continue to affirm previous decisions made from the DRBs without “liberal consideration” of the evidence. At this point, not much is known about who will be on the Board or how many cases it will review.[63] Since the purpose of this new Board is to ensure that the previous decisions were made in accordance with DoD policy, which includes the Hagel and Kurta Memos, this is a new opportunity to enforce “liberal consideration.”

[1] See Memorandum from Chuck Hagel, Sec’t of Def. to Secretaries of the Military Dep’ts, (Sept. 3, 2014); https://www.secnav.navy.mil/mra/bcnr/Documents/HagelMemo.prf [hereinafter Hagel Memo]; A.M. Kurta, Acting under Sec’y of Def. for Personnel and Readiness, to Secretaries of the Military Dep’ts, (Aug. 25, 2017), https://dod.defense.gov/Portals/1/Documents/pubs/Clarifying-Guidance-to-Military-Discharge-Review-Boards.pdf [hereinafter Kurta Memo].

[2] See Jessica Lynn Wherry, Kicked Out, Kicked Again: The Discharge Review Boards’ Illiberal Application of Liberal Consideration for Veterans with Post-Traumatic Stress Disorder, 108 Calif. L. Rev. 1357, 1404-05 (2020).

[3] 10 U.S.C. § 1553(a).

[4] Id. § 1553(b)(1).

[5] Michael J. Wishnie, ‘A Boy Gets into Trouble’: Service Members, Civil Rights, and Veterans’ Law Exceptionalism, 97 B.U.L. Rev. 1709, 1764 (2017).

[6] Veterans Legal Services Clinic, Monk v. Mabus, https://law.yale.edu/studying-law-yale/clinical-and-experiential-learning/our-clinics/veterans-legal-services-clinic/monk-v-mabus.

[7] See Hagel Memo supra note 1; Wishnie, supra note 5 at 1762.

[8] Wishnie, supra note 5 (citing Order on Motion for a Voluntary Remand at 3, Monk v. Mabus, No. 3:14-cv-00260 (D. Conn. Nov. 18, 2014), EFC No. 48).

[9] Wishnie, supra note 5.

[10] Wherry, supra note 2, at 1382.

[11] 10 U.S.C. § 1553(d)(3)(A)(ii).

[12] Id. at 1383.

[13] Stacey-Rae Simcox, Thirty Years of Veteran Law: Welcome to the Wild West, 67 Kan. L. Rev. 513, 571 (2019).

[14] Major Bryant A. Boohar, Combat Stress Claims: Veterans’ Benefits and Post-Separation Character of Service Upgrades for ‘Bad Paper’ Veterans After the Fairness for Veterans Act, 227 Mil. L. Rev. 95, 111 (2019) (quoting Amended Complaint, Kennedy v. Esper, No. 3:16-cv-02010-WWE at 23 (D. Conn. Apr. 17, 2017), EFC No. 11).

[15] See Kurta Memo, supra note 1.

[16] Slip Copy, Kennedy v. McCarthy, No. 3:16-cv-2010 (D. Conn. Dec. 28, 2020).

[17] Id.

[18] Id.

[19] Id.

[20] Complaint, Manker v. Spencer, No. 3:18-cv-00372 at 2 (D. Conn. Mar. 2, 2018), EFC No. 1.

[21] Id.

[22] Id.

[23] Manker v. Spencer, 329 F.R.D. 110, 123 (D. Conn. Nov. 15, 2018).

[24] Wherry, supra note 2, at 1383 n.171.

[25] 32 C.F.R. § 70.9 (b) – (c).

[26] See Hagel Memo, supra note 1; Kurta Memo, supra note 1.