Progress on Correcting Bad Paper Discharges is Just a Start

People are often surprised to learn that the government doesn’t recognize all service members as “veterans”. People who enlisted, went through basic training, served, maybe even deployed multiple times—not veterans. And because they aren’t veterans, they get almost no help from the VA. Really? Yes, really!

How does this happen? It happens when someone got a misconduct(s) while in service and they were discharged for it. It can be really minor—late to formation a couple times, having an argument with your superior. For many of these people, the VA gets to decide if they should be considered veterans. And most of the time, the VA says, “No.”

This happens even when the misconduct was a symptom of PTSD. That argument with your superior? Well, hypersensitivity, irritability, and an inappropriate startle response can do that to you. That late formation? Strong anti-psychotics, nightmares and sleeplessness: check…check…check. Should these people be separated from service? Maybe. But should they be forever denied recognition as a veteran, denied veteran services? No. The fact is, there is a pipeline from trauma to misconduct to denial of VA care. It’s not right.

DOD Policy Change

The Pentagon just made a big step toward fixing this. They decided when a service member with a bad discharge asks to have that discharge changed, they will look at whether there was undiagnosed PTSD in service and strongly consider whether this explains the misconduct. This is immensely important and long overdue. We work with lots of veterans who should benefit from this.

Still, there is a lot that this policy doesn’t do. Most importantly, it doesn’t make the VA change. Remember, it’s the VA who decides whether those service members are veterans. If a service member gets turned away from the VA, they can ask the military to change its mind, and hopefully this policy will encourage that. But why isn’t the VA required to consider PTSD diagnoses, too?

Are we being too picky? We don’t think so. Here’s what the new policy won’t do:

  • The policy says that they will give a lot of weight to VA diagnoses of PTSD. But many people in that situation aren’t eligible for VA medical care. In fact, getting turned away by the VA may be the whole reason they’re going to the Pentagon in the first place, so they won’t be able to provide a VA diagnosis.
  • The policy only actually applies at the second level of requests, at the Boards for Correction of Military/Naval Records. Recent veterans have to start by applying to the first level, the Discharge Review Boards. The Navy rejects 82% of initial petitions. So many recent service members will have to go through a 2-to-3-year appeal process before this, which helps them.
  • The policy requires service members to give evidence of behavior change in service. But most veterans just don’t have the legal know-how to do that kind of evidence compilation without a lawyer.
  • In the meantime, the veterans will not get the care they may need. Twenty-two veterans a day are killing themselves: for veterans at risk of suicide, withholding medical care while they go down a 3-year bureaucratic appeal process just doesn’t do the job.

All these problems can be solved

The VA should also have to consider PTSD when deciding if service members are veterans; they can do the medical evaluations to make that decision; there are veterans advocates in every county who can help collect useful statements; the VA should provide services while they are making their decision; and all of this can happen at the local VA office instead of at the Pentagon. This is the real solution, and this is what we want.

We should all be happy to see this new policy take effect. But if this policy is good enough for the DoD, it should be good enough for the VA. The agency charged with taking care of veterans shouldn’t be giving veterans the runaround.

Congress is actually considering a bill that would fix this. It’s the Suicide Prevention for American Veterans Act. Why suicide prevention? Because when you turn away people with PTSD, you increase their risk of suicide. But the Senate has stalled and it might not go through.

Email your Senator and tell them: “Don’t delay on suicide prevention for American veterans. Require the VA to consider mental health trauma when deciding who is a veteran. Pass the SAV Act this term.

 


Bradford Adams, Skadden Fellowship Attorney at Swords to Plowshares
Bradford has previously worked with the Center for Justice and Accountability, Harvard University, and The Human Rights Education Institute for Burma. He served in the United States Army as a Civil Affairs Officer in Afghanistan in 2002 through 2003. He attended Harvard Law School for his Doctor of Law (JD) after earning his BA in International Relations and Affairs at John Hopkins University.

Read the memorandum that details the changes here: http://www.defense.gov/news/OSD009883-14.pdf