'Bad Paper' Discharges of Some Marines and Sailors to Get Second Look

The Navy must review thousands of general and other-than-honorable discharges awarded to sailors and Marines over the past decade for behavioral problems that may have stemmed from a military-related mental health condition or sexual assault.

U.S. District Court Judge Charles Haight approved a settlement Monday in a class-action suit known as Manker v. Del Toro, which alleged that the Navy and Marine Corps wrongly discharged members for behavior that may have been related to trauma or an injury they endured while serving.

Under the settlement, the Navy will be required to review and reconsider all discharge upgrade requests made from March 2, 2012, to Feb. 15, 2022, that were partially or fully denied.

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The review of these cases will be automatic; service members will not need to request one.

But the settlement also gives those who were discharged and denied an upgrade from Oct. 7, 2001, through March 1, 2012, the opportunity to reapply for a change in their status with the Naval Discharge Review Board.

The suit stemmed from the case of former Marine Cpl. Tyson Manker, who was dismissed from the service with an other-than-honorable discharge after he was caught using marijuana. Manker told The New York Times that he turned to the drug after being exposed to a series of traumatic experiences in Iraq in 2003.

Manker applied for an upgrade in 2016 but was denied, as have roughly 85% of requests filed to the Naval Discharge Review Board by sailors and Marines.

A general discharge under honorable conditions precludes a veteran from accessing their GI Bill benefits. An other-than-honorable discharge, also known as a "bad paper discharge," prevents veterans from receiving medical care, disability compensation and education benefits through the GI Bill at the Department of Veterans Affairs.

These discharges also can affect a veteran's long-term earning power, since many employers will not hire anyone with less than a good conduct discharge.

Monday's ruling, in the U.S. District Court of Connecticut, follows Haight's ruling in April 2021 that required the Army to review its other-than-honorable discharges dating back to April 17, 2011.

The Army already had initiated the review of an estimated 3,500 discharges, but the settlement in that case, Kennedy v. McCarthy, also required the service to notify soldiers given bad paper discharges from Oct. 7, 2001, to April 16, 2011, that they could apply for an upgrade or appeal a previous decision.

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.

Under the Manker settlement, the Navy will allow veterans to appear before the Naval Discharge Review Board by video teleconference -- a change from the requirement that they travel to Washington, D.C., for their hearings. The service also will be required to increase training for board members.

Navy and Marine Corps veterans, including members of the reserve component, who were discharged under general or other-than-honorable conditions and who also have a diagnosis of -- or symptoms of -- post traumatic stress disorder, a traumatic brain injury, mental health conditions or were victims of military sexual trauma may be eligible for the review.

Status upgrades will be decided on a case-by-case basis and are not guaranteed, noted Manker's legal team, which included the Veterans Legal Services Clinic at Yale Law School and Jenner & Block LLP in a press release.

In granting approval of the settlement, Haight called it "an impressive example of the manner in which a class action can be made the vehicle for doing substantial justice."

Brandon Baum, with the Veterans Legal Services Clinic, could not provide an exact number of veterans who may be affected by the ruling but said in an email that it could be in the "tens of thousands."

Garry Monk, executive director of the clinic, said the settlement "helps bring accountability and justice for thousands of veterans suffering every day from the invisible wounds of war."

"It is a recognition of their service, their value, and their dignity, and we look forward to the impact it will have on the lives of so many service members," Monk said in a press release.

More information is available at the Manker Settlement website.

-- Patricia Kime can be reached at Patricia.Kime@Monster.com. Follow her on Twitter @patriciakime.

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