Released 1/3/20 | Tags:
NVLSP Sues U.S. Military Departments For Removing From Public View All Past Decisions of the Discharge Review Boards and Boards for Correction of Military Records
FOR IMMEDIATE RELEASE- Jan. 3, 2020
WASHINGTON – On January 02, 2020, the National Veterans Legal Services Program (NVLSP) filed a complaint in U. S. District Court for the Eastern District of Virginia seeking declaratory and injunctive relief against the Secretaries of the military departments for unlawfully removing from public view all of the past decisions made by defendants’ Discharge Review Boards (DRBs) and Boards for Correction of Military Records (BCMRs) (collectively, the Boards). The other defendants include the Acting Secretary of Homeland Security, the Department of Defense and the Secretary of Defense.
The complaint, filed with the pro bono assistance of Hunton Andrews Kurth LLP, asserts that defendants have mandatory statutory and regulatory requirements to ensure that the decisions of the Boards are made available to the public. As part of these requirements, defendants must ensure that all decisions of the Boards are available to the public and that decisions are indexed to allow the public to research and find relevant cases.
According to the complaint, before April 2019, defendants violated its legal requirements by making available to the public some, but not all of the decisions of the Boards and by failing adequately to index the decisions they did make publicly available.
In April 2019, the government defendants began violating its legal requirements by removing from public view all previous and subsequent Board decisions. No Board decisions have been made publicly available since then. Thus, virtually all decisions made by the Boards are now unavailable to the public. While this removal was allegedly temporary, defendants have now been in noncompliance with the law for 9 consecutive months, and have failed to even provide an estimate of when they will come back into compliance with the law. Unfortunately, there is no alternative method to access prior Board decisions.
“The failure to make the Board decisions public is not simply a bureaucratic matter. The Boards are unlawfully withholding valuable information that NVLSP and others can use to help bring life-changing benefits to veterans and their families,” said NVLSP Executive Director Bart Stichman. “This is an unnecessary obstacle that veterans have to overcome to pursue their lawful claim for benefits they have been wrongfully denied.”
In its complaint, NVLSP is seeking a declaratory judgment that defendants’ removal and continued withholding of the decisions of the Boards from the Public Reading Room is unlawful. NVLSP is also requesting that the Court issue a declaratory judgment that Defendants’ failure to properly index DRB and BCMR decisions in a usable and concise form is unlawful. Additionally, NVLSP is requesting a preliminary injunction requiring Defendants to:
a. immediately republish decisions of the Boards in the Public Reading Room that existed prior to April 2019; and
b. ensure that all decisions made more than 60 days prior to the Court’s Order are promptly added to the Reading Room.
NVLSP also seeks a permanent injunction requiring Defendants to:
c. continue to publish all decisions of the Boards electronically within a reasonable time after the decision; and
d. maintain an index of decisions that allows users to easily find relevant decisions.
The petitioner- National Veterans Legal Services Program (NVLSP)
The National Veterans Legal Services Program (NVLSP) is a 501 (C)(3) nonprofit veterans service organization. Part of its mission is to assist veterans in effectively applying to a DRB or BCMR to correct errors or injustices contained in their military records. NVLSP achieves its mission by providing free legal representation to veterans applying to DRBs and BCMRS as well as by training attorneys to represent veterans before these agencies and preparing training and advocacy resources on representation of veterans before these agencies. NVLSP and its network of pro-bono attorneys depend on the availability of previous Board decisions to assess which cases to accept for representation and to determine the best arguments to present before the DRB or the BCMR. NVLSP also publishes and updates yearly its 2,200 page, Veterans Benefits Manual as well as other training materials. To keep the Veterans Benefits Manual and training materials updated, NVLSP monitors the Boards’ decisions to determine how each Board interprets key military directives and regulations and the circumstances under which they have granted various types of relief, identify systemic issues in the Boards’ decision-making process and evaluate how new policies are being implemented and interpreted in the Boards’ decisions.
The failure of defendants to publish all DRB decisions seriously impedes NVLSP in fulfilling its mission and its advocacy for veterans. Without access to the Board decisions, NVLSP lacks critical information required to identify key issues and prepare effective arguments regarding DRB and BCMR applications. The availability of these Board decisions is critical for the daily operations of NVLSP. The efficacy of NVLSP’s services rely on understanding the reasoning behind the Boards’ decisions.
Background
In the supporting brief for the complaint, NVLSP states that when a service member separates from the military, the relevant military branch awards one of five discharge classifications—honorable; general under honorable conditions; under other than honorable conditions; bad conduct; or dishonorable.“ The ramifications of a discharge characterized below fully honorable is harmful. The veteran loses some or all of the VA benefits that are available for honorably discharged veterans, and any less-than-fully-honorable classification stigmatizes the veteran in civilian society. Regrettably, these classifications are sometimes made erroneously or unjustly. Recognizing that there may be several factors that could merit re-characterization of less-than-honorable discharges, Congress created the Discharge Review Boards (DRBs) and the BCMRs to review military discharges and determine whether individual veteran-petitioners deserve re-characterization of less-than-fully-honorable designations. Each service branch has its own DRB and BCMR. The BCMRs have greater authority than the DRBs; among other things, BCMRs can correct military records to change a reenlistment code, the date of discharge, or passovers for promotion; make a veteran entitled to military disability retirement; and alter in-service punishments.
Prior to April 2019, defendants had to make all DRB decisions available for public inspection and copying. The law, 32 C.F.R. § 70.8, also requires that DRB decisions be “indexed in a usable and concise form so as to enable the public, and those who represent applicants before the DRBs, to isolate from all these decisions that are indexed, those cases that may be similar to an applicant’s case and that indicate the circumstances under or reasons for (or both) which the DRB or the Secretary concerned granted or denied relief.” Additionally, “under Department of Defense Directive 1332.41, Defendants must publish “all the decisional documents since 1996 for each Department’s boards” in the Reading Room, located at http://boards.af.mil.”
About NVLSP
The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1980. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation's definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org.
Media contacts:
For NVLSP: Patty Briotta, office 202-621-5698, patty@nvlsp.org