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NVLSP and Morrison & Foerster LLP File Class Action Suit Against Army Board of Military Corrections

Released 11/14/14 | Tags: Class Actions

Federal court lawsuit exposes Army’s illegal practices in reviewing applications for corrections of errors and injustices in military records, impacting thousands of service members and veterans; two decorated veterans are lead plaintiffs for putative class; suit seeks to compel the Army to comply with its legal obligations, and to provide due process

WASHINGTON D.C. (November 13, 2014) – Morrison & Foerster and two veterans organizations, the National Veterans Legal Services Program (NVLSP) and Vietnam Veterans of America (VVA), have filed a class action suit on behalf of thousands of former soldiers whose service files contain errors or injustices, and whose applications were handled improperly by the U.S. Army’s Board for Correction of Military Records (ABCMR).

“The plaintiffs are distinguished combat veterans who served their country and returned home to find that errors in their records have prevented them from receiving benefits they have earned by virtue of their service,” said San Francisco partner Stacey Sprenkel, one of the attorneys leading the Morrison & Foerster team handling the case. “We are simply asking the Court to compel the Army to fulfill its legal obligations.”

Authorized by Congress, the Secretary of the Army, acting through the ABCMR, can make changes to any Army record when doing so is “necessary to correct an error or remove an injustice.” In many cases, these decisions can impact financial benefits, military retirement benefits, civil service eligibility, employment eligibility, VA compensation, and healthcare benefits for veterans and service members, as well as their families.

The suit, NVLSP v. United States Department of Defense, filed today in the U.S. District Court for the District of Columbia, names as defendants the Dept. of Defense, the U.S. Army and Army Secretary John McHugh, the Army Review Boards Agency, and the ABCMR and its Director. The suit seeks, among other things, to void all ABCMR denials made by staff and without participation of the board’s civilian review panel. According to the suit, ABCMR staff are not allowed to make final decisions on veterans’ applications, and the Army is required to assist applicants in gathering documents in support of their applications. The ABCMR is the highest level of administrative review within the Dept. of the Army.

Named plaintiffs Angelo Duran and Scott Fink are decorated combat veterans who suffer from PTSD and other injuries as a result of military service in Iraq. Both have errors in their military files that have prevented them from receiving substantial benefits. And despite a legal requirement that the Board review their applications, their applications were improperly denied by ABCMR staff without Board review.

Although a previous ruling by the District Court for the District of Columbia requires the ABCMR to convene its civilian board to review veterans’ applications regarding their records, the agency continues to assign such appeals to agency staff, and its criteria for evaluating applications remains opaque. A Fusion investigation published November 6, 2014, found that “about 9,000 cases a year are reviewed by ABCMR board members. Several thousand more cases are handled by the civilian staff of 43 people, and never reach board members.”

“The Army Board for Correction of Military Records wields a powerful review function that is supposed to ensure that service members are treated fairly, that mistakes are fixed, and justice is served,” said Bart Stichman, co-founder and co-executive director of NVLSP. “The errors the Board has the power to correct potentially impact employment, benefits, and healthcare for service members and their families for life. Instead of following the regulations, the board’s staff are denying thousands of applications without even showing them to the civilian board members who are required by law to review them, and operating using secret and unpublished procedural manuals. All of this is in direct violation of army regulations, federal law, the direction of Congress, and the United States Constitution,” said Mr. Stichman.

NVLSP and Morrison and Foerster are providing pro-bono legal services for the lawsuit. In addition to Ms. Sprenkel, Morrison & Foerster lawyers representing the veterans who are party to the suit include Northern Virginia partner Richard Vacura, of counsel John Trocki III, and associate Catherine Chapple, and Washington, D.C. associate Kirk Sigmon.

ABOUT THE PLAINTIFFS

Army Specialist Angelo Duran
Army veteran Angelo Duran, of Fountain, Colo., was deployed to Iraq from August 2006 to October 2007. On at least eight occasions during his deployment, he was exposed to improvised explosive devices (IEDs), several of which caused him to lose consciousness for brief periods of time. Even though he reported health problems and was diagnosed by a private doctor and the mental health clinic servicing the 82nd Airborne Division with post-traumatic stress disorder (PTSD), Duran was never referred to a medical evaluation board. Duran was honorably discharged in 2013. The discharge failed to mention his medical disabilities and gave his reason for separation as merely “completion of required active service.”  Duran applied to the ABCMR seeking a medical discharge. If awarded, the change would have awarded Duran military disability retirement benefits and healthcare for his family. His application was illegally denied by the ABCMR staff without board review.

Staff Sergeant Scott Fink
Army veteran Scott Fink, of Olney, Md., joined the National Guard in 1991 and served for 17 years. He deployed to Iraq from January 2005 to June 2006. He sustained serious physical injuries in Iraq and was diagnosed with service-connected PTSD after returning home. In 2008 when his unit deployed again, Fink was told that he had been placed on a medical hold pending a Medical Evaluation Board. His case was never reviewed for medical retirement. Instead, Staff Sergeant Fink was reassigned to the inactive National Guard, which meant he did not earn “retirement points” and lost full military retirement benefits worth tens of thousands of dollars. When Fink applied to the ABCMR seeking to return to military service for three years, his application was illegally denied by the staff and without board review.

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 federal benefits they have earned through their service to our country. NVSLP 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.

ABOUT VVA

Vietnam Veterans of America (VVA) is the nation's only congressionally chartered veterans service organization dedicated to the needs of Vietnam-era veterans and their families.  VVA's founding principle is “Never again will one generation of veterans abandon another.”

ABOUT MOFO

We are Morrison & Foerster — a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, Fortune 100, technology, and life science companies. We’ve been included on The American Lawyer’s A-List for 11 straight years and the Financial Times named the firm number six on its list of the 40 most innovative firms in the United States. Chambers USA has honored the firm with the only 2014 Corporate/M&A Client Service Award, as well as naming it both the 2013 Intellectual Property and Bankruptcy Firm of the Year. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.

Media contact: Ami Neiberger-Miller, NVLSP, 703-887-4877 (for working news media only), ami@steppingstoneLLC.com

Amy Merriweather, Morrison & Foerster , (415) 268-6063 (for working news media only), amerriweather@mofo.com

Click here to view the complaint

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