 |
SwiftVets.com
Service to Country
|
| View previous topic :: View next topic |
| Author |
Message |
SBD
Admiral
Joined: 19 Aug 2004
Posts: 1022
|
 Posted: Mon Jun 20, 2005 3:37 pm Post subject: Kerry Part of Class Action to Upgrade HIS Discharge? |
 |
|
Basically the decision below states that an officer in the inactive reserves is not under direct military authority and any actions while in the inactive reserves can not have the effect of making a previous Honorable Discharge become Undesirable.
SBD
| Quote: | Perry S.WOOD et al., Plaintiffs, v. SECRETARY OF DEFENSE et al., Defendants
Civ. A. No. 77--0684
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
496 F. Supp. 192; 1980 U.S. Dist. LEXIS 15071
August 25, 1980
MEMORANDUM OPINION
This action challenges the authority of the military to issue less than fully honorable administrative discharges to members of the inactive reserves because of civilian misconduct not found to have affected adversely the quality of their military service. The four plaintiffs were issued such discharges for civilian misconduct ranging from an alleged and
unprosecuted sexual offense to a conviction for unarmed robbery. They argue that the Department of Defense (DOD) policy underlying their discharges exceeds the military's statutory and constitutional authority in that it does not require a connection between their civilian misconduct and their military service. The plaintiffs seek a declaratory judgment and an
injunction requiring the DOD officials to review and upgrade their discharges unless the civilian misconduct relied upon is found to have affected their military service. They also seek certification of this suit as a class action on behalf of similarly situated former members of the inactive reserves. Named as defendants are the Secretary of Defense and the
Secretaries of the three services the Navy, the Army, and the Air Force.
Cross motions for summary judgment have been filed. In addition, the Army has moved to dismiss or for summary judgment on grounds that it no longer engages in the practice complained of. All of the defendants have raised a statute of limitations defense under 28 U.S.C. § 2401(a) seeking dismissal of the complaint.
The Court rules for the plaintiffs and concludes that the DOD regulation and policy as applied, characterizing plaintiffs' discharges as less than honorable without any finding of adverse impact, exceeds the defendants' statutory authority. The Court also grants plaintiffs' motion for class certification. The Army's motion to dismiss is denied and the defendants'
statute of limitations defense is rejected. The proceeding is remanded to the DOD in light of this opinion for appropriate action.
The material facts are not in dispute. The four individual plaintiffs were all members of the inactive reserves. As such, they had no military obligations, not even to attend drills or training weekends. They were not required to perform any duties other than keeping the military informed of their current addresses.
Plaintiff Wood, after nearly three years of active duty during which he received the Silver and Bronze Stars, was released to inactive duty with an honorable discharge. Several years later while a member of the volunteer reserve, he was placed on probation by a civilian court after pleading guilty to contributing to the delinquency of a minor, a misdemeanor. He was subsequently issued an undesirable discharge for "misconduct." No finding was made that his activities affected the quality of his military service. After a period of successful probation, he was allowed to substitute a not guilty plea and the misdemeanor charge was dismissed.
Upon release from active duty, servicemembers receive a discharge certificate characterizing their active duty. The individual does not receive a discharge characterizing the entire period of military service, including
active duty, however, until separation from the reserves. The vast majority of those who are released to inactive duty have had their service characterized as honorable at the time of release.
Plaintiff Akers was similarly released from active duty to the inactive reserves with an honorable discharge. Shortly thereafter, criminal sodomy charges were brought against him. They were later dropped. Nonetheless as a result of those charges and the circumstances, Akers was subsequently separated from the inactive reserves with an undesirable discharge for "unfitness." His undesirable discharge was later upgraded to a general discharge by a Naval administrative review agency.
Prior to 1975, the conduct and conditions now labeled "misconduct" were subdivided into two separate categorical bases for dismissal "unfitness" and "misconduct." In 1975, the two categories were combined under the
heading of "misconduct."
Plaintiffs Kruger and Conomos, whose active duty service was characterized as general and honorable respectively, were released from the inactive reserves following civilian felony convictions. Kruger received an undesirable discharge following a grand larceny conviction. Conomos received a similar discharge for an unarmed robbery conviction. Each
served a prison term.
After discharge, each plaintiff was denied a full upgrade in discharge by one or more administrative review agencies of the military. At no time during any of the administrative review proceedings, in which the four plaintiffs challenged the characterization of their discharges, was a finding made that the civilian "misconduct" affected the quality of the individual plaintiff's military service or the service generally.
The DOD Directive in question and at issue here creates a presumption that a discharge for "misconduct" shall be "under other than honorable conditions," i. e., an undesirable. Specifically, the Directive provides that a servicemember's discharge for specified types of misconduct rendering him unqualified for further military service shall be a Department of Defense Directive 1332.14, December 29, 1976, as amended by Change 1.
Nine categories of acts or conditions are included under the "misconduct" heading. Among them in abbreviated form are frequent involvement of a discreditable nature with civil or military authorities, an established
pattern for shirking, sexual perversion, drug abuse, and "(conviction) by civil authorities . . ., or action taken which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice . . . is death or confinement for one year or more; or which involves moral turpitude; or where the offender is adjudged a juvenile delinquent, wayward minor, or youthful offender, or is placed on probation, or punished in any way, as the result of an offense involving moral turpitude. . . .(separation) under other than honorable conditions, unless the particular circumstances in a given case warrant a general or an honorable discharge. . . .
Only recently in Roelofs v. Secretary of the Air Force n6 our Court of Appeals upheld an Air Force regulation nearly identical to the Directive challenged here as authority for the issuance of a general discharge to a servicemember convicted of a federal narcotics offense while on active duty. Roelofs was sentenced to 18 months imprisonment, followed by probation for 3 years. The execution of the sentence was stayed to enable Roelofs to complete his military service. Before he did so, the Air Force discharged him administratively, issuing an undesirable discharge because of his conviction. Roelofs later applied for and was granted an upgrade in discharge characterization to a general discharge.
No. 77--2088 (D.C.Cir. February 6, 1980).
The Air Force regulation provides in pertinent part:
An airman discharged under this section should be furnished an undesirable discharge, unless the particular circumstances in a given case warrant a general or honorable discharge. Because neither of the administrative review agencies that considered Roelofs' discharge characterization gave reasons for denying an upgrade to a fully honorable discharge, the Court of Appeals remanded his case to the appropriate Air Force authority for such a statement, as required by the Administrative Procedure Act, 5 U.S.C. §555(e).
Roelofs' judicial challenge to his general discharge was virtually identical to that advanced by the plaintiffs. He contended that the Air Force exceeded its authority in issuing him a less than honorable discharge for civilian misconduct without considering the impact of that conduct on the quality of his military service. Because of the similarity of the issues
in the two cases, Roelofs provides the legal framework and serves as a guide to the Court for resolution of this proceeding.
Roelofs was on active--duty when charged with and convicted of criminal activity. He was thus subject to military authority 24 hours a day and "expected to respond on short notice and without restriction to orders that might direct expeditious movement from one location to another . . . ." Crawford v. Cushman, 531 F.2d 1114, 1117 (2d Cir.
1976). To an active duty servicemember, "the Government is often employer, landlord, provisioner and lawgiver rolled into one." Parker v. Levy, 417 U.S. 733, 751, 94 S. Ct. 2547, 2559, 41 L. Ed. 2d 439 (1974).
Roelofs makes clear that a discharge for civilian misconduct cannot be characterized as less than honorable absent a showing that the misconduct in some fashion adversely affects the military. The court distinguished between the showing necessary to support a general and an undesirable discharge. For the former, the military need show that the misconduct had an impact on "the overall effectiveness of the military." For the latter, the conduct must be "service--related."
The court found the Air Force regulation reasonable in its indication that a good record would warrant either an honorable or general discharge, thus creating the clear impression that an undesirable discharge indicates the absence of a good record of performance in the service. This is an adverse finding, over and above the stigma of the felony, because it is equivalent to a finding that the serviceman has performed inadequately on the job. The presumption that an undesirable discharge will result from a civilian conviction is warranted if it results in deficiency in performance of military duties or has a direct impact upon military service.(emphasis in original).
Since Roelofs retained a general discharge, the Air Force could take into account "the impact of his "outside' actions in diminishing the overall effectiveness of the military." The Court of Appeals offered two reasons why a general discharge could be issued Roelofs even though his narcotics conviction was not directly related to the quality of his particular performance of assigned chores. First, it considered a general discharge less deleterious ("different in kind") than an undesirable discharge. Second, it found the stigma of a general discharge comparable to that already borne by the felon. The court emphasized that its consideration of the regulation was limited to the application presented by
Roelofs' case, namely:
The Court observed that Roelofs' misconduct had a relatively direct impact upon military efficiency. His prison sentence prevented the Air Force from seeking to renew his term. In addition, his drug activity involved another servicemember directly and had the potential to involve others. the issuance of a general discharge for an act that is a felony under Federal law.
We are not concerned with other provisions or applications of the regulation, such as discharge for an action that involves moral turpitude.
We do not have here a case where an undesirable discharge was issued based upon conduct which was not "service--related." (emphasis in original).
Nor was the court presented with the application of the regulation to the discharge characterization of inactive reservists. The critically differing nexus with the military between the active duty serviceman and the inactive reservists compels under Roelofs differing treatment of their discharge characterizations. In their reconsideration of this matter the
defendants must consider whether the varying acts of "misconduct" for which plaintiffs and the various class members were discharged, had a sufficient impact, under the standards set forth in Roelofs, to justify the particular discharge characterizations they now possess.
Roelofs makes clear that the DOD Directive's presumption of the issuance of an undesirable discharge for civilian misconduct when applied to inactive reservists exceeds the military's authority. Since an undesirable discharge "is equivalent to a finding that the serviceman has performed inadequately on the job," and an inactive reservist has no military job, such misconduct cannot result in deficiency in performance of his military duties or have a direct impact upon his military service. Similarly, defendants cannot and indeed have not sought to defend the issuance of a
general discharge on grounds of a generalized nexus between the civilian misconduct and military morale and efficiency.
Since inactive reservists live where they choose and have no scheduled contact, it is hard to conceive how their morale or efficiency would be affected by the misconduct of a fellow inactive reservist. While plaintiffs do not dispute the possibility that in some cases the defendants may be able to justify the issuance of a less than honorable discharge for
civilian conduct, such occurrence should be the exception and not, as it is now, the rule.
Defendants' sole attempt to establish a generalized nexus between plaintiffs' "misconduct" and the military is their assertion that such conduct inherently affects an alleged duty to maintain availability for service in the event of call up. Under that theory, plaintiffs Kruger and Conomos violated their duty because of incarceration; Wood because of his probation status; and Akers because of alleged deviant sexual practices for which he was not prosecuted.
The defendant Secretary of Defense has stated:
A reservist is primarily a civilian and secondarily a military person.
The Military Departments are concerned with his activities as a reservist and not with his activities as a civilian. However, if a reservist is sentenced to imprisonment for certain criminal acts, committed while in civilian status, which preclude him from attending required training or which significantly affect his qualifications for military service, he will be discharged administratively. In this event, discharge is based on the reservist's non--attendance and failure to perform which, in turn, result in his failure to maintain his military proficiency. Thus discharge is
based on his unsatisfactory military performance and his unavailability for military service in case of a need for his service on active duty.
Defendants' Answers to Plaintiffs' Second Interrogatories filed November 7, 1977, Response to Interrogatory Since inactive reservists have no training obligations, the only possible justification, under the Secretary's
analysis, for applying the DOD Directive to issue them a derogatory discharge is possible unavailability for call up.
The Court is not persuaded by that argument. First, the defendants have not demonstrated the existence of such a duty. The argument is not a justification for the DOD Directive since the rationale for the grading of discharges is not related to whether the reservist is actually available. The availability argument is at best a post hoc rationalization that was not considered or applied when defendants graded plaintiffs' discharges or when they reviewed them. Finally, the defendants do not suggest that plaintiffs would not have been available for call up in the event of war, nor were any of them called up. The statutory basis proffered by the defendants, 10 U.S.C. § 672, is questionable for such an alleged
obligation. That section specifies when an inactive reservist may be called to active duty, i. e., "(i)n time of war or of national emergency . . . or when otherwise authorized by law . . . ." In any event, it does not require full--time availability when no such specified period exists.
Also, several of defendants' own admissions weaken their position. They concede and indeed have stipulated that no effort is made to monitor the conduct of inactive reservists. There are no established procedures or notification requirements if an inactive reservist is involved in or charged with criminal conduct by civilian authorities. n12 If the military were concerned with inactive reservists' availability, it would likely monitor their conduct. In addition, defendants have stipulated that there is no requirement that such misconduct have affected the reservists' military service. They nonetheless press the argument that the plaintiffs' misconduct interfered with their one obligation, that of continued availability.
Defendants' Answers to Plaintiffs' Second Interrogatories filed November 7, 1977, Response to Interrogatory No. 6.
More than 20 years ago a commentary in the Military Law Review recognized that the fundamentally differing obligations of active duty soldiers and inactive reservists critically affects the military's authority to characterize their discharges. In discussing Harmon v. Brucker, 355 U.S. 579, 78 S. Ct. 433, 2 L. Ed. 2d 503 (1958), which held that the military could not consider preservice activities in characterizing a servicemember's discharge from active duty, the author analogized such preservice activities of the active duty serviceman with the conduct of the inactive reservist while a member of the civilian community. He concluded that while conduct which occurred while a reservist was on scheduled
drills could be considered a part of his record of military service and thus relevant to his discharge characterization, consideration of all other conduct would fall "within the prohibition of the Harmon decision."
Comment, Judicial Review of Administrative Discretion (Department of the Army Pamphlet No. 27--100--4, April 1959). And indeed, so remote is the connection between an inactive reservist's civilian conduct and the military, that the Judge Advocate General of the Army has interpreted its regulations "as precluding issuance of a less than honorable discharge to an inactive reservist for civilian misconduct." n14 The individual is issued an honorable discharge if his military record otherwise warrants it. Inactive reservists sentenced to confinement by civilian authorities are not issued a discharge certificate at all but instead simply dropped from the rolls. Statement of Material Facts filed with the Army's February 9, 1979 Motion to Dismiss or for Summary Judgment, P 3.
From all that appears in this record and on the strength of legal authority, it appears to this Court that the Department of Defense has exceeded its authority and that its position and actions cannot be sustained as a matter of law.
Defendants also argue that this action is barred by the six year statute of limitations, 28 U.S.C. § 2401(a). The issue is twofold whether that section should apply at all since this action [**18] to correct less than fully honorable administrative discharges seeks only declaratory and injunctive relief; n15 and if so, when plaintiffs' claims accrued. The defendants
contend that plaintiffs' claims accrued on the dates of their discharges from the inactive reserves and are therefore barred since each plaintiff was discharged more than six years before this suit was brought.
This issue is pending before our Court of Appeals in Baxter v. Claytor, No. 77--1984. The court had initially held in that proceeding that section 2401(a) did not apply to actions for the correction of less than honorable
discharge certificates and that such actions could be brought at any time after discharge. That opinion of December 18, 1978, reached without oral argument and without extensive briefing, was vacated upon the Navy Secretary's petition for rehearing.
The Court concludes that section 2401(a) does not apply to actions such as this seeking only declaratory and injunctive relief to correct less than fully honorable discharge certificates. n16 Alternatively, the Court holds that if it does apply, plaintiffs' claims did not accrue until the respective military discharge review boards or boards for correction of military records denied them upgrades to a fully honorable discharge, which occurred within six years of their filing of this action.
The Court is also of the opinion that this action, which has been pending for more than three years, should not be further delayed pending a ruling by our Court of Appeals in Baxter v. Claytor.
Plaintiffs also seek certification of this case as a class action on behalf of former servicemembers with less than fully honorable discharges, so characterized when they were administratively separated from the service because of their conduct as inactive reservists and who were either discharged on or after April 20, 1971, or whose cases on review were
decided on or after April 20, 1971. The class certification requirements of Rule 23(a) and (b)(2), Fed.R.Civ.P. have been satisfied and the motion seeking certification should be granted.
The defendants concede the numerosity requirement and the qualifications of plaintiffs' counsel to pursue this litigation. The Court does not agree with defendants' contention that the commonality and typicality requirements have not been satisfied. Common legal questions concerning the lawfulness of DOD policy and the implementing directives
are presented. Further, the factual question of the stigmatizing effects of a less than honorable discharge is common to all such members. Thus, common questions predominate over the varying circumstances that may surround the individual reservist's discharge. The typicality requirement is satisfied since the named plaintiffs' claims are based on the same legal
theory as that of the class and since plaintiffs have no material interests in conflict with those of the class.
Finally, the Court determines that the Army's motion to dismiss should be denied. The Army asserts that since at least
1971 it has not issued inactive reservists less than honorable administrative discharges for civilian misconduct. Rather, if
the reservist's military record otherwise warrants an [**21] honorable discharge, he is issued one unless his misconduct
results in confinement by civilian authorities. In that case, he is dropped from the rolls without a formal discharge certificate.
While the Army has submitted supporting affidavits for that claim, the above described does not address the treatment afforded inactive reservists whose cases have been reviewed by the Army Discharge Review Board or the Board for Correction of Military Records since April, 1971. These persons are also potential class members. In addition, as to the first category, the inactive reservist discharged since 1971, the Army states that such individual could obtain relief through the Army discharge review agencies if erroneously issued a less than honorable discharge in violation of Army practice.
Such assurance is not the sort of evidence upon which the Court would grant the defendant's motion. For the foregoing reasons, the Court denies the Army's motion to dismiss, and the defendants' motion for summary
judgment. The plaintiffs' motions for summary judgment and class certification are granted. Plaintiffs' cases are remanded to the services and they are instructed to review each case to determine whether proper grounds existed for the issuance of a less than honorable discharge, taking into account that:
1) an undesirable discharge can only be based on conduct found to have affected directly the performance of military duties;
2) a general discharge can only be based upon conduct found to have had an adverse impact on the overall effectiveness
of the military, including military morale and efficiency;
3) where the proper grounds do not exist for the issuance of a less than honorable discharge, an honorable discharge should be issued;
4) if a fully honorable discharge is denied, such denial shall be accompanied by a statement of reasons as required by
the Administrative Procedure Act, 5 U.S.C. § 555(e).
An Order and Judgment will be entered in accordance with this Memorandum Opinion. |
Last edited by SBD on Mon Jun 20, 2005 4:38 pm; edited 1 time in total |
|
| Back to top |
|
 |
Me#1You#10
Site Admin
Joined: 06 May 2004
Posts: 6503
|
| Posted: Mon Jun 20, 2005 3:55 pm Post subject: |
|
|
Admin note: As this topic relates to conjecture, I am moving it to the R&R Forum.
Thanks |
|
| Back to top |
|
|
SBD
Admiral
Joined: 19 Aug 2004
Posts: 1022
|
| Posted: Mon Jun 20, 2005 4:03 pm Post subject: |
|
|
This document lays down the rules for the Discharge Review Board, in particular, it applies the decision from the court in "Woods vs Dept of Defense" I posted above. You will notice that a date of April 20, 1971 is given as the beginning of the rules regarding inactive reserve undesirable discharges which is right after traitor Kerry's famous speech. I bet that speech triggered the discharge of quite a few protestors.
SBD
| Quote: | TITLE 32 ---- NATIONAL DEFENSE
SUBTITLE A ---- DEPARTMENT OF DEFENSE
CHAPTER I ---- OFFICE OF THE SECRETARY OF DEFENSE
SUBCHAPTER D ---- PERSONNEL, MILITARY AND CIVILIAN
PART 70 ---- DISCHARGE REVIEW BOARD (DRB) PROCEDURES AND STANDARDS
32 CFR 70.9
§ 70.9 Discharge review standards.
(a) Objective of review. The objective of a discharge review is to examine the propriety and equity of the applicant's discharge and to effect changes, if necessary. The standards of review and the underlying factors that aid in determining whether the standards are met shall be historically consistent with criteria for determining honorable service. No factors
shall be established that require automatic change or denial of a change in discharge. Neither a DRB nor the Secretary of the Military Department concerned shall be bound by any methodology of weighting of the factors in reaching a determination. In each case, the DRB or the Secretary of the Military Department concerned shall give full, fair, and impartial considerations to all applicable factors before reaching a decision. An applicant may not rceive a less favorable discharge than that issued at the time of separation.This does not preclude correction of clerical errors.
(b) Propriety.
(1) A discharge shall be deemed proper unless, in the course of discharge review, it is determined that:
(i) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or
(ii) A change in policy by the Military Service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.
(2) When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the DRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.
(3) The primary function of the DRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case--by--case basis. Prior decisions in which the DRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the DRB in its review of subsequent cases because no two cases present the same issues of equity.
(4) The following applies to applicants who received less than fully Honorable administrative discharges because of their civilian misconduct while in an inactive reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the DRB shall either recharacterize the discharge to Honorable without any additional
proceedings or additional proceedings shall be conducted in accordance with the Court's Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than Honorable discharge, taking into account that;
(i) An Other than Honorable (formerly undesirable) Discharge for an inactive reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;
(ii) A General Discharge for an inactive reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.
(c) Equity. A discharge shall be deemed to be equitable unless:
(1) In the course of a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a Service--wide basis to discharges of the type under consideration provided that:
(i) Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such
proceedings; and
(ii) There is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.
(2) At the time of issuance, the discharge was inconsistent with standards of discipline in the Military Service of which the applicant was a member.
(3) In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the DRB viewed in conjunction with the factors listed in this section and the regulations under which the applicant was discharged, even though the discharge was determined to have
been otherwise equitable and proper at the time of issuance. Areas of consideration include, but are not limited to:
(i) Quality of service, as evidenced by factors such as:
(A) Service history, including date of enlistment, period of enlistment, highest rank achieved, conduct or efficiency ratings (numerical or narrative);
(B) Awards and decorations;
(C) Letters of commendation or reprimand;
(D) Combat service;
(E) Wounds received in action;
(F) Records of promotions and demotions;
(G) Level of responsibility at which the applicant served;
(H) Other acts of merit that may not have resulted in a formal recognition through an award or commendation;
(I) Length of service during the service period which is the subject of the discharge review;
(J) Prior military service and type of discharge received or outstanding postservice conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;
(K) Convictions by court--martial;
(L) Records of nonjudicial punishment;
(M) Convictions by civil authorities while a member of the Service, reflected in the discharge proceedings or otherwise noted in military service records;
(N) Records of periods of unauthorized absence;
(O) Records relating to a discharge instead of court--martial.
(ii) Capability to serve, as evidenced by factors such as:
(A) Total capabilities. This includes an evaluation of matters, such as age, educational level, and aptitude scores. Consideration may also be given whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.
(B) Family and Personal Problems. This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.
(C) Arbitrary or capricious action. This includes actions by individuals in authority that constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge or to the characterization of service.
(D) Discrimination. This includes unauthorized acts as documented by records or other evidence. |
Last edited by SBD on Mon Jun 20, 2005 4:45 pm; edited 1 time in total |
|
| Back to top |
|
|
SBD
Admiral
Joined: 19 Aug 2004
Posts: 1022
|
| Posted: Mon Jun 20, 2005 4:30 pm Post subject: |
|
|
The following link goes into detail regarding how decisional documents are to be constructed for the personal file of each person and what they will say, and how they will say it. I am still looking into the Urban Institute role in all of this.
http://www.swiftboatarchives.com/docfile/47_FR_37785.pdf
SBD
| Quote: | Urban Institute of Antioch College, Inc. v. Secretary of Defense, Civ. No. 76--0530 (D.D.C.) (Settlement Agreement, July 30, 1982)
With respect to each decisional document issued on or after the effective date of the amendments required by the proposed Court Order pertaining to the preparation of decisional documents, defendants shall inform the applicant (and counsel, if any) of the availability of the complaint process.
Urban Institute of Antioch College, Inc. v. Secretary of Defense, Civ. No. 76--0530 (D.D.C.) (Settlement Agreement, July 30, 1982) (Annex to the Settlement Agreement concerning the Government's obligations in discharge review matters related to the Urban Law Litigation) |
|
|
| Back to top |
|
|
SBD
Admiral
Joined: 19 Aug 2004
Posts: 1022
|
| Posted: Sun Jul 10, 2005 7:37 pm Post subject: |
|
|
I wonder why the DOD was trying to upgrade these discharges in 1996??
I found this in the following document
http://www.state.de.us/veteran/pdf/Vol4-No.1.pdf
| Quote: | | The Department of Defense (DOD) is trying to identify former service members who received a less than fully honorable administrative discharge from the inactive reserve. Pursuant to a class action lawsuit and subsequent settlement agreement, discharge upgrades may now be provided to all former service members who received: (a) a less than fully honorable administrative discharge (such as “general,” “undesirable,” or “under honorable conditions”); (b) while in the inactive reserves; (c) after April 19, 1971, (or such a discharge was reviewed by a Discharge Review Board (DRB) or Board for the Correction of Military Records (BCMR) after that date); and (d) that discharge has not already been upgraded to fully honorable. Other than fully honorable administrative discharges were sometimes awarded for civilian misconduct which was not service related or impairing. The class action lawsuit was instituted to correct this situation. Specifically, the DOD requests your assistance in helping to identify the individuals who may be affected by the settlement agreement and either provide information to the National Veterans Legal Services Program (NVLSP) on their behalf so that the individual may be contacted or have the individual contact the NVLSP. Their address is: The National Veterans Legal Services Program P.O. Box 53445 Washington, D.C. 20009. NVLSP is a private, non-profit veterans service organization associated with the attorneys who brought the class action lawsuit. Any correspondence with them will be treated as confidential. The NVLSP will then provide additional information and provide assistance in determining the former service member's eligibility for a discharge upgrade as a member of the class. Additionally, it is requested that you communicate this information to the local veterans affairs offices in your state. (Dept. of Defense Ltr, 31 Aug 96) |
SBD |
|
| Back to top |
|
|
Beatrice1000
Resource Specialist
Joined: 10 Aug 2004
Posts: 1179
Location: Minneapolis, MN
|
| Posted: Mon Jul 11, 2005 2:53 am Post subject: |
|
|
| SBD wrote: | I wonder why the DOD was trying to upgrade these discharges in 1996??
I found this in the following document
http://www.state.de.us/veteran/pdf/Vol4-No.1.pdf
| Quote: | | ...Specifically, the DOD requests your assistance in helping to identify the individuals who may be affected by the settlement agreement and either provide information to the National Veterans Legal Services Program (NVLSP) on their behalf so that the individual may be contacted or have the individual contact the NVLSP. Their address is: The National Veterans Legal Services Program P.O. Box 53445 Washington, D.C. 20009. NVLSP is a private, non-profit veterans service organization associated with the attorneys who brought the class action lawsuit.<...>(Dept. of Defense Ltr, 31 Aug 96) |
SBD |
Would like to see this class action - didn't pull anything up on google -- probably filed in WDC? and why was there a "settlement agreement" -- why did the DOD cave? -- just wiping out any and all punishments received by anybody for anything... shouldn't these cases be on a case-by-case basis? I don't know anything about this stuff -- just interested. Probaby need Lexis to find the case. |
|
| Back to top |
|
|
SBD
Admiral
Joined: 19 Aug 2004
Posts: 1022
|
| Posted: Mon Jul 11, 2005 3:02 am Post subject: |
|
|
This is the class action:
Urban Institute of Antioch College, Inc. v. Secretary of Defense
The only thing is that the Dept of Defense settled out of court and agreed to the settlement agreement. I have been trying to find the actual settlement agreement but so far have only found DOD instructions that reference the settlement agreement.
SBD |
|
| Back to top |
|
|
Beatrice1000
Resource Specialist
Joined: 10 Aug 2004
Posts: 1179
Location: Minneapolis, MN
|
| Posted: Mon Jul 11, 2005 3:44 am Post subject: |
|
|
| SBD wrote: | This is the class action:
Urban Institute of Antioch College, Inc. v. Secretary of Defense The only thing is that the Dept of Defense settled out of court and agreed to the settlement agreement. I have been trying to find the actual settlement agreement but so far have only found DOD instructions that reference the settlement agreement.
SBD |
Sorry, I skipped right past that -- just didn't register the "Urban Institute.." as Plaintiff in a military discharge matter. (What is it, anyway?)
Also, it says the settlement agreement was in 1982 -- what are they doing in 1996 tracking people down? Geez. |
|
| Back to top |
|
|
|
|
You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot vote in polls in this forum
|
Powered by phpBB © 2001, 2005 phpBB Group
|
FAQ
Search
Memberlist
Usergroups
Register
Profile
Log in to check your private messages
Log in
