Swords to Plowshares and Partners File Lawsuit to Compel VA to Amend its Character of Discharge Regulations

October 24, 2023

Today, Swords to Plowshares and the National Veterans Legal Services Program (NVLSP) filed a lawsuit in the U.S. Court of Appeals for the Federal Circuit to compel the U.S. Department of Veterans Affairs (VA) to issue regulations amending the VA’s Character of Discharge process. Under the current rules, thousands of veterans with less than honorable discharges are unjustly denied VA benefits. In 2015, we petitioned the VA for rulemaking and shortly thereafter the VA agreed to make regulatory changes. Now, eight years and three administrations later, the lawsuit asks the Court to compel the VA to finally promulgate long overdue amendments to the VA’s rules that would make it easier for these veterans to obtain basic VA benefits like health care, disability compensation, and pension.

Less than honorable discharges often result from minor disciplinary infractions that are symptomatic of trauma or experiences of injustice during military service. Post 9/11-veterans, veterans of color, LGBTQ+ veterans, Military Sexual Trauma (MST) survivors, and veterans diagnosed with mental health conditions, such as Post-Traumatic Stress Disorder (PTSD), have disproportionately higher rates of these discharges.  

“We are advocating for a cohort of veterans who have been systematically denied access to care,” said Renee Burbank, NVLSP Director of Litigation. “We cannot wait any longer to ensure the most vulnerable veterans have access to benefits. These veterans are more likely to die by suicide, live in chronic homelessness, and face unemployment due to conditions resulting in part from VA’s failure to recognize their veteran status.” The lawsuit calls upon VA to update its regulations to grant care and benefits access to veterans who need it most.

Joseph Effiong, a Marine Corps combat veteran who deployed twice to Iraq, was denied VA benefits because of his less than honorable discharge and the regulations that the VA long ago agreed to amend.  After 10 years of appeals with assistance from Swords to Plowshares, the VA finally opened its doors to him, and he is now receiving VA mental health treatment and monthly disability compensation for his combat-related PTSD. Mr. Effiong said, “It is disappointing that I had to jump through so many hoops to access basic services at the VA. I am hopeful that the VA will act quickly to change its rules so that other veterans can get the care that they need as soon as possible.”

President Biden and Congress passed landmark legislation under the PACT Act last year, demonstrating that the VA wants to enhance accessibility to its services. It expanded healthcare eligibility as well as the list of presumptive service-connected conditions for veterans exposed to toxins during their military service. However, due to the VA’s current Character of Discharge regulations, the PACT Act cannot provide the full measure of protection for all veterans harmed by toxic exposure.  

“A veteran who served in Iraq or Afghanistan and received a less than honorable discharge can still contract a life-threatening condition from their exposure to burn pits, but their discharge will prevent them from receiving full benefits under the PACT Act,” said Dana Montalto of the Veterans Legal Clinic at the Legal Services Center of Harvard Law School. “These veterans are unable to receive care and benefits that are meant to support them.”

Most veterans who receive a less than honorable discharge are presumptively stripped of their legal status as a veteran and may be unable to access VA services like healthcare, disability benefits, education programs or housing assistance, regardless of their service record, accolades, or deployment history. There are currently over 600,000 veterans with a less than honorable discharge.  

The VA healthcare system provides comprehensive and coordinated care, but only to those veterans who can access it. “When I started doing veterans legal work in 1976, PTSD wasn’t even recognized by the VA.” said Michael Blecker, Executive Director of Swords to Plowshares. “The VA has come a long way in serving veterans with excellent healthcare, housing services, and a host of other benefits, but far too many veterans are ineligible for those lifesaving services for unjust, arbitrary, and frankly discriminatory reasons.”  

With this lawsuit, advocates push for urgency and remain committed to achieving a singular result—VA’s issuance of a final rule that ensures veterans can access the benefits they have earned.