The veterans we serve have cause to celebrate. The “Kurta Memo,” issued by the Under Secretary of Defense on August 25, 2017, expands protections for veterans whose adverse discharges were a result of the “invisible wounds” of mental illness and/or sexual trauma. The memo is the latest effort by DoD leaders to achieve uniformity across the various Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs). It advises the Boards to “afford each veteran a reasonable opportunity for relief…” when the veteran’s misconduct was prompted by mental illness and/or sexual trauma. This memo is good news for our clients because it enhances the protections afforded by recent DoD memos and Congressional Acts. The memo is rich in detail, but we are particularly excited about the following:
CVLC’s Top 10 Take-Aways from the Kurta Memo:
1. A checklist for DU briefs featuring four crucial questions.
2. Boards are reminded that they may consider a broad array of non-military evidence including statements from family.
3. Acknowledgment that evidence of misconduct may double as evidence of a mental health condition.
4. A veteran’s testimony alone may establish the existence of a mental health condition (although we still recommend getting a diagnosis and sending as much documentation tying the diagnosis to service as possible).
5. Boards are reminded that discharges can be excused/mitigated by conditions that may have reasonably existed in-service.
6. Boards should afford liberal consideration to evidence that supports more than one diagnosis.
7. Boards should liberally construe diagnostic evidence that warrants an upgrade of the Narrative Reason for Separation.
8. “Discharge” includes: characterization, narrative reason, separation code, and re-enlistment code — make sure you ask for these remedies as well in your applications.
9. The Hagel Memo applies to all Boards, including DRBs, and all discharges, including general under honorables.
10. Older cases often require lesser levels of proof because evidence is unavailable or certain conditions were far less understood
Download the Kurta Memo: https://www.defense.gov/
Portals/1/Documents/pubs/ Clarifying-Guidance-to- Military-Discharge-Review- Boards.pdf.
A number of documents set the stage for the Kurta Memo, including:
1. The “Hagel Memo” (Sept 3, 2014) – The memo and its attachment explicitly applied only to BCM/NRs and cases involving PTSD and symptoms related to PTSD, though it was construed more broadly by some boards. Despite its limitations, the Hagel memo was a big step forward. The memo established the “liberal consideration” standard for PTSD (and related conditions) and the “special consideration” standard for PTSD determinations made by the VA. The memo listed PTSD (or related conditions) as “potential mitigating factors in… [in-service] misconduct…” The memo afforded veterans three new protections: 1. a liberal waiver of time limits for reconsideration of discharge, 2. timely consideration of upgrade applications, and 3. detailed information on BCMR guidelines and procedures. The memo did not apply to pre-existing conditions or premeditated misconduct. Download the Hagel Memo: http://arba.army.pentagon.mil/
documents/SECDEF%20Guidance% 20to%20BCMRs%20re%20Vets% 20Claiming%20PTSD.pdf
2. The “Carson Memo” (Feb. 24, 2016) – The memo encouraged BCM/NRs to “renew and re-double [their] efforts” on behalf of veterans with PTSD. The memo afforded veterans two new protections: 1. a complete waiver of the statute of limitations when “…applicable and bars consideration” of the DU application, and 2. de novo review of cases previously considered by BCMRs or DRBs without the benefit of the Hagel memo guidance. Download the Carson Memo: https://www.defense.gov/
Portals/1/Documents/pubs/ Consideration_on_Discharge_ Upgrade_Requests.pdf
3. The National Defense Authorization Act of 2017 (Dec. 23, 2016) – The Act placed new requirements on BCM/NRs and DRBs, and afforded veterans several new protections, including: 1. BCMRs and DRBs must make DU claim and disposition data available each quarter [Sec. 533], and 2. DRBs must accept VA/civilian medical evidence and afford veterans with PTSD “liberal consideration” [Sec. 535]. Download NDAA 2017: https://www.congress.gov/114/