Two former Air Force airmen have filed a proposed class-action lawsuit to compel the service to review thousands of less-than-honorable discharges awarded since 9/11 to members with a traumatic brain injury or mental health issue.
The suit, known as Johnson v. Kendall, follows two other lawsuits settled against the Army and Navy this year that alleged those services wrongly discharged troops for misconduct linked to a military trauma such as a combat- or training-related head injury or sexual assault.
During a press conference on the lawsuit Monday, advocates said the Air Force Discharge Review Board, a panel of officers and senior enlisted personnel who consider administrative dismissals, has rejected 72% of upgrade requests from former service members with post-traumatic stress disorder or head injuries and 60% of appeals from victims of military sexual assault.
The denials also have been issued with "boilerplate language" and didn't follow legal requirements to review all cases individually, according to Alexis Kallen, a Yale Law student who works for Yale Veterans Legal Services Clinic, representing the two airmen.
"This leaves veterans without the critical support they need to navigate the world," Kallen said.
More than 10,000 former Air Force members could be affected by the case if the class action is approved.
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In 2014, in response to concern that the military had dismissed service members for behavior and infractions that may have been related to post-traumatic stress disorder, then-Defense Secretary Chuck Hagel issued guidance to the military records boards to improve the rate of approvals for discharge upgrades -- ostensibly a second chance to consider extenuating circumstances tied to the departure of service members.
The instruction was later clarified to ensure that the requester did not have to have an official mental health diagnosis at the time of their misconduct or discharge and only needed to provide "sufficient evidence" that they suffered from an issue.
Despite the guidance, the services continued to reject appeals, spawning a lawsuit in late 2017 against the Army that challenged its approval rate.
That case was settled earlier this year, with the Army agreeing to review all other-than-honorable discharges since April 17, 2011, for eligible service members. That included an estimated 3,500 active-duty, Reserve and National Guard troops affected by post-traumatic stress disorder or other psychiatric conditions, trauma related to sexual assault, or brain injury.
The Army also agreed to notify soldiers who received other-than-honorable discharges from Oct. 7, 2001, to April 16, 2011, of their ability to apply for an upgrade or to appeal a previous denial.
The new lawsuit challenges the Air Force's handling of similar cases. The case's named plaintiff, former Airman 1st Class Martin Johnson, served as an F-16 Fighting Falcon crew chief and deployed to Iraq in 2007 where, he said, a car bomb exploded near his base, "shaking everything" and triggering a deep depression.
Johnson said he became sensitive to loud noises and other sensory stimulation and also had relationship issues and behavioral problems after his return home.
Despite earning multiple awards and accolades, Johnson engaged in "minor misconduct -- failing to keep his lawn fully mowed was one of the charges" and was given a general discharge under honorable conditions, according to Shariful Khan, a student intern at Yale Veterans Legal Services Clinic.
"I wasn't able to get the help I immediately needed in the Air Force," Johnson said at the press conference, his voice quavering as he grew emotional. "I've tried going through established channels to get my discharge upgraded, but it's been [a] letdown by the Air Force. I feel as though I have no other option other than [to] bring this complaint today on behalf of myself and other U.S. Air Force veterans."
The other plaintiff, known as former Airman 1st Class Jane Doe, served from 2013 to 2016. She was raped during her military service and later developed post-traumatic stress disorder, which also manifested itself in misconduct, according to Khan. She was awarded an other-than-honorable discharge, which denied her a host of benefits, including medical services, disability compensation, and burial and education benefits.
"Veterans like these agreed to put their country above themselves and, in return, the country promised to take care of them should anything happen," Garry Monk, executive director of the National Veterans Council for Legal Redress, said during the event. "Sure enough, they developed mental health disabilities or experienced military sexual trauma ... and the Air Force broke its promise."
While general discharges and other-than-honorable discharges, also known as "bad paper" discharges, limit veterans' access to Department of Veterans Affairs benefits, they also can affect a veteran's long-term earning power, since many employers will not hire anyone with less than a good-conduct discharge.
More than 51,400 discharges under other-than-honorable conditions were issued for active-duty personnel from fiscal 2010 through 2020, according to the Defense Manpower Data Center.
A similar case was filed against the Navy for decisions made by the Navy Discharge Review Board, which also oversees Marine Corps discharges. That suit was settled this summer, but details of the agreement have yet to be released.
Sen. Richard Blumenthal, D-Conn., said Monday in a press release that he supports the legal action to hold the Air Force accountable to fairly review these discharge review requests.
He noted that while 2% of all World War II veterans and 7% of Vietnam veterans received other-than-honorable discharges, 15% of service members who have left the military since 9/11 have such discharges.
"And they're repeatedly victimized when they're denied jobs and educational opportunities benefits from the VA," Blumenthal said. "This situation is an outrage."
-- Patricia Kime can be reached at Patricia.Kime@Monster.com. Follow her on Twitter @patriciakime.
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