The following requests and information are from the proposed class counsel for the Calixto action (which has not yet been certified as a class action) and current class counsel for the Nio and Kirwa actions. Please note that cooperation with these requests is not mandatory, and that this information is not legal advice and should not be considered to be legal advice.
REQUEST*: If you (1) are a MAVNI soldier discharged from the Army with an “entry-level” or “uncharacterized” discharge on or after September 30, 2016, (2) have not received a letter offering reinstatement in the Army (see example reinstatement offer letter HERE), and (3) wish to pursue potential reinstatement in the Army, we request that you send one e-mail to us at this address firstname.lastname@example.org with the following information:
- Copy of your discharge order(s), if you have a copy;
- A description/copies of any communication with the military concerning your discharge.
REQUEST*: If you are a MAVNI soldier and have received an adverse Military Service Suitability Recommendation (MSSR) notice (see example MSSR notice HERE), we request that you send one e-mail to us at this address email@example.com with the following information:
- Copy of your notice of an adverse Military Service Suitability Recommendation;
- The date on which you received the notice of your adverse Military Service Suitability Recommendation; and
- A description/copies of any communication with the military concerning your SSBI, CI, MSSR, and/or MSSD.
*Please note that sending information to us in response to these requests will not create an attorney-client relationship.
UPDATE (May 31, 2019): We have learned that some Army units and recruiters are distributing a document entitled “Voluntary Waiver of Notification of Adverse Military Service Suitability Recommendation” to MAVNI soldiers who are still waiting for final MSSDs. An example of that document can be viewed through this link.
We understand that some soldiers received this MSSR Waiver Notification even though they did not request it or speak with anyone in the Army about it in advance of receiving it.
The last page of the MSSR Waiver Notification is an “Acknowledgement of Notice and Election” form. The document instructs soldiers to fill out this form and return in to the Army.
If you have received this document, and if you do not want to waive your right to be informed of the basis for your unfavorable MSSR or the opportunity to refute your unfavorable MSSR, you should check the space next to “I elect not to waive receipt” paragraph on the Election Form before returning it the Army. That is the paragraph immediately above the “Name” line on the Form. In addition, if you did not ask to waive your MSSR notification and rebuttal rights, you may want to add the following comment next to your signature on the form: ”I am acknowledging receipt of this form only, but I am not acknowledging the accuracy of statements within the notification because I did not make either of the requests referred to in the second sentence of Part 3 on page 2. I am reserving all of my rights.”
Paragraph 6 of the document identifies an Army “Point of Contact” to whom you can direct questions. If you received this document and are considering checking the “I voluntarily elect to waive” option on the Election Form, you may wish to consider gathering more information before making that selection. For example, you may want to ask the Army to answer the following questions:
- What rights exactly are being waived? And, what rights are not being waived?
- If I select “waive,” which is likely to lead to my discharge from the military, how long does the discharge process take and what does it entail?
- What kind of discharge will I receive?
- How could such a waiver (and discharge) negatively affect me, not only with respect to my military career, but also with respect to any immigration matters, military and veterans’ benefits, reputation, and civilian jobs and clearances?
- How does this waiver relate to the MAVNI litigations pending in federal court in Washington, DC?
- In the Nio class action, the district court recently decided that USCIS had to move forward with MAVNI naturalization applications even if MSSRs and MSSDs remain pending, so what are the benefits (if any) and disadvantages of “waiving” my MSSR/MSSD challenge rights if that leads to my discharge from the military?
- Can I speak with a JAG lawyer about the potential waiver, my rights, and how such a waiver may affect me? If “yes,” how do I get assigned a JAG lawyer to help me?
- Will I be given time to speak with a lawyer?
- What happens if 15 days pass and I haven’t responded to the notification?
If you are unable to obtain adequate answers from the Army right now or advice from a lawyer, you may want to select “I elect not to waive receipt” until you have the answers and information you need to make a more informed decision.
The District Court in the Calixto litigation has been informed about the MSSR Waiver Notification. A copy of that filing is available through this link.
* * * * *
Please check back periodically as Fried, Frank, Harris, Shriver & Jacobson LLP (“Fried Frank”), counsel for the Kirwa class and the Nio class, will be adding and updating documents and information found on this Site.
This website and the materials provided herein are made available by Fried Frank to provide publicly available information regarding the Kirwa and Nio class actions. Nothing on this website creates or establishes any attorney client relationships between Fried Frank and any persons or entities. Your use of the Site is conditioned on your understanding and acknowledgement that (1) the material and information on the Site is not offered as and does not provide legal advice on any matter and should not be used as a substitute for seeking legal advice, and (2) Fried Frank is not and will not be responsible for any errors or omissions on this website or any action or failure to act in reliance upon information on the Site.