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NVLSP Challenges Unlawful Delays at Boards of Correction for Military Records

Released 12/18/19 | Tags:

NVLSP Files Class Action Lawsuit Accusing U.S. Military Departments of Violating the Rights of Veterans to Timely Decisions on Their Life-Changing Applications to Correct Military Records

--Delays of More Than 18 months Said to Exceed Deadline Set By Congress--


WASHINGTON- On Dec. 16, 2019, The National Veterans Legal Services Program (NVLSP), together with Mr. Walter Calhoun and Mr. John Doe, filed a class action complaint in U.S. District Court for the District of Columbia accusing the U.S. Departments of the Army, Navy, and Air Force of consistently failing to meet their statutory timeliness requirements to decide claims filed by veterans and servicemembers for correction of their individual military records as mandated by Congress in 10 U.S.C. § 1557.

The complaint, filed with the pro bono assistance of Orrick, Herrington & Sutcliffe LLP, asserts that 10 U.S.C § 1557 requires the Army, Navy, and Air Force Boards for Correction of Military Records (BCMRs) to make decisions on all applications within 18 months of receipt and the BCMRs have admitted that over the last few years they have been violating this 18-month timeliness requirement.  According to the complaint, the lack of timeliness violates 10 U.S.C § 1557, the Administrative Procedure Act (APA), and the due process rights of the adversely affected veterans and servicemembers under the Fifth Amendment to the United States Constitution. 

“This disregard for the rule of law has a profound adverse impact on those who apply to the BCMRs,” said NVLSP Executive Director Bart Stichman. “The BCMRs were created by Congress to provide a remedy when it is necessary to correct an error or injustice.  Life-changing benefits are often at stake.  For example, veterans who seek a correction of an erroneous less than honorable discharge or a wrongful denial of disability retirement benefits are paying a high price for the ongoing delays at the Correction Boards.  The culprits for this mistreatment of those who have served our country are not the Correction Boards; the culprits are the military departments who continually fail to allocate the necessary resources to the Correction Boards to decide the thousands of claims they receive in a timely manner.”

A veteran or service member seeking to change his or her military records must submit an application to the Correction Board for the branch of the U.S. Armed Forces in which he or she served.  The Correction Boards are required by law to review applications and issue a final decision on the application within 18 months of receipt.  The only exception to the 18-month requirement is that the Secretary of the military department may personally and individually designate certain applications as “warrant[ing] a longer period of consideration,” thus eliminating the 18-month requirement with respect to those individual applications.  Additionally, 90% of the applications submitted to the Correction Boards must be resolved by a final decision within 10 months of receipt.

At a Sept. 27, 2018 hearing before the Military Personnel Subcommittee of the House Armed Services Committee, representatives from the Army, Air Force, and Navy testified regarding the status of applications pending before the Corrections Boards that also provides some valuable insight on potential number of class members.   

• Ms. Francine Blackmon, Deputy Assistant Secretary of the Army, testified that 13,805 applications had been pending for more than 300 days (or 10 months) before the Army’s Correction Board.
• Mr. John A. Fedrigo, Director of the Air Force Review Boards Agency, testified that (1) the agency receives approximately 15,000 cases annually; (2) as of September 2017, it had only adjudicated only 2% of its cases within 10 months of receipt; and (3) at the end of FY 2017, the Air Force board “had a case inventory of 7,000 with substantial backlog.”
• Mr. Robert Woods, Principal Deputy Assistant Secretary of the Navy, testified that (1) more than 12,000 individuals petition the agency for corrections each year; (2) in FY 2016, the Navy adjudicated only 68% of applications within 18 months of receipt; and (3) the BCNR had a backlog of 5,000 applications and (4) the Navy will never be able to clear this backlog without additional resources. 

The petitioners – Walter Calhoun
Plaintiff Walter Calhoun is a veteran of the U.S. Army. Following his retirement, Mr. Calhoun applied for Combat-Related Special Compensation (CRSC) due to his post-traumatic stress disorder (PTSD), headache disorder associated with PTSD, as well as right knee degenerative arthritis and left knee osteoarthritis.  The Army’s CRSC Board denied Mr. Calhoun’s request in March 2011 and denied his subsequent requests for reconsideration, denying his final request for reconsideration in May 2014. On December 23, 2016, Mr. Calhoun applied to the Army Board for Correction of Military Records (ABCMR), requesting that the ABCMR correct his military record to reflect that he qualifies for CRSC.

As of the date of filing this complaint, Mr. Calhoun has not received a final decision from the ABCMR.  It has been 35 months (nearly three years) since Mr. Calhoun submitted his application to the ABCMR.  The ABCMR’s failure to render a final decision on Mr. Calhoun’s application has, at the very least, potentially delayed Mr. Calhoun’s access to CRSC compensation owed as a result of the injuries he suffered during combat, deprived Mr. Calhoun of his statutory rights, and deprived Mr. Calhoun his Constitutionally mandated due process.

John Doe
Plaintiff John Doe is also a U.S. Army veteran. He was deployed to Iraq to serve in Operation Iraqi Freedom. He served as a Military Police Officer and was an officer-in charge of a Quick Reaction Force.  For his service, Mr. Doe was highly decorated. He was awarded the Bronze Star Medal, the Army Commendation Medal, the Army Achievement Medal, the Meritorious Unit Commendation, the National Defense Service Medal, the Global Ware on Terrorism Service Medal, the Iraq Campaign Medal with Campaign Star, the Army Service Ribbon, and the Overseas Service Ribbon.  However, as a result of his service, he witnessed many casualties and fatalities and while still deployed began to experience PTSD symptoms. He was medically separated and honorably discharged by the Army, but was denied disability retirement benefits. Several years after his discharge in July 2017, Mr. Doe applied to the ABCMR. requesting that his records be corrected to reflect that he was entitled to disability retirement under 10 U.S.C. § 1201 due to PTSD.

As of the date of filing this Complaint, Mr. Doe has not received a final decision from the ABCMR.  It has been 28 months (more than two years) since Mr. Doe submitted his application to the ABCMR.  The ABCMR’s failure to render a final decision on Mr. Doe’s application has, at a minimum, potentially delayed Mr. Doe’s access to medical retirement benefits (depriving Mr. Doe of necessary medical care), deprived Mr. Doe of his statutory rights, and deprived Mr. Doe his Constitutionally mandated due process.

NVLSP’s mission is to help veterans and active duty personnel secure the benefits to which they are entitled as a result of their military service.  NVLSP has a number of core programs including training lawyers on legal issues affecting veterans, developing training and advocacy publications, and pursuing class action litigation to redress systemic injustice to veterans. Among the many pro bono legal services that NVLSP offers veterans, NVLSP helps veterans whose military records contain errors or injustices to apply for relief from the Correction Boards.  The Corrections Boards’ failure to comply with the statutory timeliness requirements harms NVLSP by forcing it to reduce the amount of resources it can expend on other initiatives.  The Corrections Boards’ delays also directly frustrates NVLSP’s ability to provide effective advocacy services to veterans and other legal service providers who represent veterans before the Correction Boards. 

Wide-ranging Impact for veterans
Based on testimony provided by military representatives in Sept. 2018 hearing and other factors, tens of thousands of veterans could be potentially be members of this class action. 

The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. 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 has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law.  NVLSP’s success in these lawsuits has resulted in more than $5.2 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. 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 contact:
For NVLSP: Patty Briotta, office 202-621-5698 or email: patty@nvlsp.org

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