Print Page | Contact Us | Sign In
News & Press: Montana Lawyer

Helping veterans upgrade discharge: Trauma from service can lead to ‘bad paper’

Friday, February 2, 2018   (0 Comments)
Share |

The U.S. Marine Corps aggressively recruited John Smith[1] out of high school, along with several of his friends on the football team. Young enough to require parental consent to enlist, the athletic boys excelled in infantry school and soon deployed.  Smith was assigned to one of the Marine Corps’ storied units heavily involved in Operation Iraqi Freedom/Operation Enduring Freedom, and he faced extreme conditions and combat in each of his eventual three deployments.  Based on Smith’s exceptional service as part of the invasion force and the Battle for Baghdad during his first tour, he was made a team leader during his second tour, which brought some of the bloodiest battles in military history.

Smith’s combat experiences took a significant toll on his physical and mental health.  By the end of his second tour, he was fighting his own personal battle with several serious physical and mental injuries; he refused a Purple Heart related to a battle in which the team he led suffered heavy losses, and he began drinking heavily to dampen his suicidal thoughts.  During his third tour, which came up unexpectedly just as Smith and his friends were preparing to go home, Smith’s company suffered even more losses.  Commiserating over the death of another friend in battle, Smith and several other soldiers shared a joint one of the other soldiers had brought from home; this choice led to Smith’s bad conduct discharge from the Marine Corps during the final month of his third combat tour after five years of honorable and decorated military service.

Even though Smith was not dishonorably discharged, his less-than-honorable character of discharge immediately thwarted his attempts to obtain medical and mental health care from the VA.[2]  The bad conduct discharge, which appeared on Smith’s DD-214, also made it impossible for Smith to use the G.I. Bill to pay for college, or to even get a job; his application for G.I. Bill benefits was denied, and employers turned him away as soon as they reviewed a copy of his DD-214. Seeing no reason to hope his circumstances would ever change, Smith spiraled further out of control.  He requested an upgraded character of discharge from the Department of Defense, but his request was denied, in large part due to his continuing substance abuse.

Ideally, the military would have the capacity and expertise to recognize a severe mental health response to combat and treat it effectively and appropriately to preserve each soldier’s future after the intensity of combat passed.  But, military leaders are not operating in an ideal world, especially when engaged in warfare overseas where a soldier’s mental health response can endanger lives and distract from the mission.  When this situation arises, leaders try to contain the problem as efficiently as possible.  For John Smith and his fellow soldiers, this meant immediate confinement, bare minimum due process, and a quick exit back to the States and out of the military with “bad paper.”  Far from being preserved, their futures would be forever clouded and defined by a choice many other U.S. teenagers make every day.  

While the majority of our military members separate from the service with an honorable discharge, estimates indicate that nearly one-third receive less than honorable discharges.[3]  Some receive dishonorable discharges for serious crimes or unmitigated dishonorable conduct unrelated to combat trauma.  But many veterans who served in combat have stories similar to Smith, who was caught in the vicious behavioral spiral created by untreated severe PTSD and traumatic brain injury (TBI). Another common story involves the behavioral issues a veteran displays after suffering Military Sexual Trauma (MST) or being harassed sexually. 

Certain characters of discharge will cause a veteran to lose rights to services and benefits normally available to our country’s veterans, such as medical care, the G.I. Bill, and compensation for service-connected disabilities.  As happened with Smith, employers routinely request a copy of a veteran’s DD-214; a less than honorable character of discharge can make it difficult, if not impossible, for the veteran to get a job. Researchers have recently found a less-than-honorable character of discharge is a strong predictor of poor post-discharge outcomes like homelessness, substance use disorders, suicidality, unemployment, and incarceration.[4]   For a veteran facing a daily battle with severe symptoms of PTSD, TBI, or the many physical ailments that arise from service in Vietnam, Iraq, and Afghanistan, the inability to earn income and related inability to obtain non-emergency medical care presents a far darker future than the veteran may have had without military service. 

To uncover and remedy wartime imbalances between efficiency and justice, the Department of Defense has panels of civilians and officers who review veterans’ less-than-honorable discharges.  Deemed “Discharge Review Boards” or “Boards for Correction of Military Records,” these panels review a veteran’s service records, medical records, and sometimes post-service conduct to determine whether the veteran’s discharge was legally and procedurally correct or the veteran’s service warrants equitable relief. 

Unfortunately, these caseloads are swelling, and the denial rate is high.  Veterans seeking upgrades of military discharges face an uphill battle.  The process to upgrade military discharge can be complicated for a lay person, and even those who learn of the process and fill out an application rely on brief personal statements about their service experiences, foregoing fact investigation of the discharge process or forensic mental health evaluation to establish a link between PTSD or TBI and the behavior that led to their bad paper. 

This is where you can help.  With an attorney’s assistance, a veteran can effectively investigate and develop the application for discharge upgrade and navigate the application process, which could change the veteran’s future.  While we do not have definitive numbers on how many Montana veterans need help with an application for discharge upgrade, those of us practicing in this area have anecdotally observed rising need.  Due to the volume of veteran’s requests, many calls have gone unanswered.  We want to change that by providing training and support to attorneys willing to assist income eligible veterans pro bono in applying for discharge upgrade. 

The Veterans Law Section of the State Bar of Montana, the Veterans Advocacy Clinic at the Alexander Blewett III School of Law, and the Montana Supreme Court Statewide Pro Bono Program are partnering to offer free training and materials in exchange for assisting one veteran.  We are working to collaborate with students at the law school to screen cases and assist pro bono attorneys who take a case.

Hillary Wandler is a professor at the University of Montana’s Alexander Blewett III School of Law. Patty Fain is the Montana Supreme Court’s statewide pro bono coordinator.

[1] This veteran’s name and some details of his story have been changed to protect confidentiality.

[2] At the time of Smith’s discharge, the VA did not have programs in place that would allow veterans with bad conduct discharges to receive treatment for severe PTSD.  Since that time, the VA has developed some mental health resources that even veterans with bad conduct discharges can utilize.    

[3] Brignone, Emily, et al., Non-routine Discharge from Military Service: Mental Illness, Substance Use Disorders, and Suicidality, 52 Am. J. of Preventive Med. 557 (2017) (finding over 28% of veterans who had deployed to Afghanistan and Iraq and utilized VA services between 2004 and 2013 had received “non-routine” military discharges, or discharges that were less than honorable).

[4] Id. (“Non-routine service discharge strongly predicts VHA-diagnosed mental illness, substance use disorders, and suicidality, with particularly elevated risk among Veterans discharged for disqualification or misconduct.”).

ABA TECHSHOW 2018 -- SBM members use code EP1806 save $150 off standard registration