Judge Certifies Class of Vets Suing Navy Over Discharge Reviews

NEW HAVEN, Ct. (CN) — Navy and Marine Corps veterans who say that the military shirks its duty to review disciplinary decisions, essentially creating life sentences for actions done in the heat of battle, can proceed in their lawsuit as a class, a federal judge ruled Thursday.

U.S. District Judge Charles Haight Jr. certified a class to include all Navy, Navy Reserve, Marine Corps and Marine Corps Reserve veterans of the Iraq and Afghanistan wars with less-than-honorable statuses who have not received discharge upgrades to honorable, and also have diagnoses of post-traumatic stress disorder, traumatic brain injury, or PTSD-related conditions, attributable to their military service.

The lead plaintiff, Tyson Manker, was 18 years old when he enlisted in 1999.

By 2002, he was an officer leading infantry Marines in the invasion of Iraq. After experiencing intense combat and witnessing the death of a close friend and squad mate, Manker allegedly began experiencing nightmares and other PTSD symptoms. Manker received an other-than-honorable discharge in 2003 upon his first infraction for self-medicating with an illegal drug.

Though he is now a lawyer in his home state of Illinois, Manker says the OTH designation of his discharge has cost him numerous opportunities to get treatment for his mental health condition, as well as education benefits under the GI Bill.

Filed in Connecticut eight months ago, the underlying lawsuit says the Naval Discharge Review Board granted discharge upgrades in only 15 percent of cases in which PTSD was alleged to have been a factor in characterization. This is in stark contrast to rates of 45 percent and 37 percent, respectively, by the Army Discharge Review Board and Air Force Discharge Review Board.

The Navy argues that the court cannot even consider class certification because it lacks jurisdiction to grant injunctive relief sought by plaintiffs.

In granting the class certification this week, Haight said the plaintiffs are not challenging the outcome of any individual case.

“Rather, they are challenging the general policies that allegedly disadvantage the proposed class members’ applications, regardless of their applications’ individual merits,” the ruling states. “The low approval rates of discharge upgrades by the NDRB, in contrast to those of their counterparts in the Army and the Air Force, suggest a systemic difference in overall practice by the NDRB.”

The court will revise the proposed class definition, in part, to limit the class to those who “have not received upgrades of their discharge statuses to honorable” from the NDRB only, to avoid a blanket inclusion of those denied upgrades to Honorable from all Navy records correction boards, Haight wrote.

The court rejected an argument from the Navy that review of certification upgrades is too individualized for a classwide resolution.

The Yale Law School’s Veterans Legal Services Clinic and Jenner & Block LLP will represent all the plaintiffs in the case.

The U.S. Navy is being represented by the U.S. Attorney’s Office, which declined to comment on the certification order.

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