January 21, 2020
A team of Hunton Andrews Kurth lawyers assisted the National Veterans Legal Services Program in restoring key military records to public accessibility. With pro bono assistance from Matthew R. McGuire, George P. Sibley, J. Pierce Lamberson and Sarah Ingles, NVLSP lawyers filed a complaint in U.S. District Court for the Eastern District of Virginia against the secretaries of the military departments for unlawfully removing decisions made by Discharge Review Boards and Boards for Correction of Military Records from public view.
In response, the Pentagon agreed to promptly make all past decisions of the Boards again publicly available. This agreement includes the Secretaries of the military departments, the Acting Secretary of Homeland Security, the Department of Defense and the Secretary of Defense.
The Pentagon agreed to take all the actions NVLSP sought in its preliminary injunction motion:
The original complaint asserted that defendants have mandatory statutory and regulatory requirements to ensure that the decisions of the Boards are made available to the public. As part of these requirements, defendants must ensure that all decisions of the Boards are available to the public and that decisions are indexed to allow the public to research and find relevant cases.
According to the complaint, before April 2019, defendants violated its legal requirements by making available to the public some, but not all of the decisions of the Boards and by failing adequately to index the decisions they did make publicly available.
In April 2019, the government defendants began violating its legal requirements by removing from public view all previous and subsequent Board decisions. No Board decisions have been made publicly available since then. Thus, virtually all decisions made by the Boards are now unavailable to the public. While this removal was allegedly temporary, defendants have now been in noncompliance with the law for nine consecutive months, and have failed to even provide an estimate of when they will come back into compliance with the law. Unfortunately, there is no alternative method to access prior Board decisions.
Based on the Pentagon’s promises, NVLSP filed a notice of withdrawal without prejudice of plaintiff’s motion for preliminary injunction on January 16, 2020. According to the notice, the Pentagon agreed to the following publication timeline for the Board decisions:
“This result will go a long way toward helping many former service members fight to gain access to the critical benefits and support services they deserve,” said Matthew McGuire. “We are proud to represent the National Veterans Legal Services Program in this important matter.”
NVLSP’s lawsuit remains pending in the District Court to ensure that all past Board decisions are made publicly available and that the Boards provide a usable index that allows veterans and their advocates NVLSP to effectively research past decisions.
This important case is one small part of the firm’s commitment to NVLSP and the veterans it represents, having dedicated over 2000 pro bono hours in 2019 to cases referred to the firm by NVLSP.