PTSD & Substance Abuse Committee Update May/June 2016

U.S. Air Force photo illustration/Senior Airman John Nieves Camacho

In March the National Veterans Legal Services Program and the Veterans Legal Clinic at the Legal Services Center of Harvard Law School published the report, Underserved: How the VA Wrongfully Excludes Veterans with Bad Paper . Bad-paper discharges, which are purely administrative and not official courts-martial, were often used as a way of discharging service members who had untreated PTSD or other war-related symptoms. The VA needs to be held accountable for not following the will of Congress, which passed legislation in 1944 making services available for veterans discharged for less serious misconduct. What follows is the executive summary, slightly edited:

Hundreds of thousands of Americans who served in our armed forces are not “veterans, ” according to the Department of Veterans Affairs. Many of them deployed to a war zone, experienced hardships, and risked their lives. Many have physical and mental injuries that persist to this day. Yet, the VA refuses to provide them healthcare, disability compensation, homelessness assistance, or other services because these former service members have bad-paper discharges.

Today, the VA is excluding these veterans at a higher rate than at any point in our history. The high rate is due almost entirely to the VA’s own discretionary policies, not any statute. Indeed, Congress intended for the VA to provide services to almost all veterans with bad-paper discharges. In 1944 Congress simplified and expanded eligibility for veterans benefits so that returning service members would be supported in their rehabilitation and reintegration into civilian society.

Congress explicitly chose to grant eligibility for basic VA services even to veterans discharged for some misconduct, provided that the misconduct was not so severe that it should have led to a trial by court-martial and dishonorable discharge. The VA has failed to heed Congress’s instructions. Instead, the VA created much broader exclusion criteria. The VA’s regulations do not properly account for in-service mental health conditions. Except in narrow circumstances, the VA’s regulations do not allow consideration of whether the misconduct is outweighed by meritorious service, nor do they permit consideration of mitigating factors. Even minor and infrequent discipline problems can bar a veteran for life. Most damagingly, VA regulations place an entire category of veterans with non-punitive, administrative discharges called “other than honorable” in an eligibility limbo—a state that most never leave.

Veterans with bad-paper discharges are often in great need of the VA’s support. They are more likely to have mental health conditions and twice as likely to commit suicide. They are more likely to be homeless and to be involved with the criminal justice system. Yet, in most cases, the VA refuses to provide them any treatment or aid. The VA’s broad and vague regulations are contrary to law and create a system that does not work for the VA or for veterans.

The report presents new findings about the VA’s eligibility standards and how they affect veterans, including:

  • •The VA excludes 6.5 percent of veterans who served since 2001, compared to 2.8 percent of Vietnam-era veterans and 1.7 percent of World War II-era veterans. Only 1 percent of recent service members were barred from VA services due to Congress’s criteria.
  • • More than 125, 000 veterans who served since 2001 are unable to gain access to basic veteran services, even though the VA has never completed an evaluation of their service.
  • • Three out of four veterans with bad-paper discharges who served in combat and have PTSD are denied eligibility by the Board of Veterans’ Appeals.
  • • In 2013 VA Regional Offices labeled 90 percent of veterans with bad-paper discharges as “dishonorable”—even though the military chose not to dishonorably discharge them. VA Regional Offices have vast disparities in how they treat veterans with bad-paper discharges. The Indianapolis Regional Office denied eligibility to every such veteran who applied in 2013, while the Boston RO denied eligibility to 69 percent.
  • • Branch of service can cause very different treatment. Marine Corps veterans are nearly ten times more likely to be ineligible for VA services than Air Force veterans.

The report recommends that the VA revise its regulations to more accurately reflect congressional intent to exclude only those whose misconduct led to a trial by court-martial and dishonorable discharge.

The VA should require pre-eligibility reviews only for veterans who received punitive discharges or discharges in lieu of a general court-martial. The VA also should grant access to basic healthcare while it makes eligibility determinations so that veterans can receive prompt treatment for service-related injuries. The VA and veterans service organizations should make sure that all staff and volunteers understand that veterans with bad-paper discharges may be eligible for some VA benefits and that those veterans should be encouraged to apply.

Adoption of these recommendations would help ensure that veterans are not denied the care and support that our nation owes them—and that Congress intended to provide.

These veterans must not be left behind. Call your state and congressional representatives. Send them this report. Let them know how you feel.

Thomas C. Hall, Ph. D., Chair


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