Hunton Andrews Kurth Assists Veterans Legal Advocacy Group in Restoring Military Records to Public View

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:

1. To immediately republish the hundreds of thousands of past decisions of the Boards in the Public Reading Room that the Boards had removed from public view in April 2019; and
2. To ensure going forward that all Board decisions are promptly added to the Reading Room within 60 days of the Board decision.

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:

• By January 31, 2020—at least 90% of the old decisions (pre-April 2019) for the Air Force, Navy, and Coast Guard will be reposted on the website;
• By January 31, 2020—all of the Army’s decisions between 2009 and April 2019 will be reposted on the website.
• By February 14, 2020—all remaining old decisions (pre-April 2019) for the Air Force, Navy, and Coast Guard will be reposted on the website;
• By February 28, 2020—all of the Army’s pre-2009 decisions will be reposted on the website.
• By March 31, 2020—the Army, Air Force, Navy, and Coast Guard will have all of their decisions through at least December 31, 2019 posted and they hope to have more recent decisions up by then as well.

“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.