Joshua Plummer
The United States’ (“U.S.”) chaotic withdrawal from Afghanistan in August 2021 may have marked the end of the longest war in American history,[1] but it did not end the battle for thousands of veterans[2] who fought in the two conflicts that defined the post-9/11 generation.[3] Though the final shots of both conflicts were fired long ago, a large number of veterans who fought in Iraq and Afghanistan are still battling with the “invisible and devastating” effects of the war.[4]
Worse yet, many of the veterans who are in the most need of help suffer in isolation because an increasing number of them have been discharged from the military in such a way—with a “less-than-honorable” discharge[5]—that leaves them unable to receive the help they need to properly cope with their post-war struggles.[6] Thanks to a pair of recent court settlements with the Army and Navy, however, there is renewed hope for many of these vulnerable veterans.[7]
When President Lincoln made his second inaugural address on March 4, 1865, the nation was “brac[ing] itself for the final throes” of the bitterly divisive Civil War and preparing for the daunting task of bringing together a broken country through “reconciliation and reconstruction.”[8] In the final paragraph of his speech, he famously stated, “let us . . . bind up the nation’s wounds, to care for him who shall have borne the battle . . .and] to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.”[9] With these words, President Lincoln not only expressed his vision for the nation’s recovery, but he also “affirmed the government’s obligation to care for [veterans] injured” in service to their country to repay their sacrifices.[10]
As a result, the U.S. Department of Veterans Affairs (“V.A.”) evolved as the federal administrative agency charged with “fulfill[ing] President Lincoln’s promise” to veterans, adopting his “immortal words” “[t]o care for him who shall have borne the battle,” as its official motto in 1959.[11] Now the “largest integrated healthcare network in the United States,” the V.A. serves nine million veterans every year at 1,255 facilities and administers other benefits to help them “transition back to civilian life in the country they fought to defend.”[12]
A noble endeavor to be sure, it is worth noting, however, that the V.A.’s mission—to care for veterans “who shall have borne the battle”—is not as simple as one might imagine.[13] While the list of issues that plague the V.A.’s administration of benefits is voluminous,[14] the most pertinent issue is that many veterans are not eligible for V.A. benefits because they received less-than-honorable discharges from the military which disqualify them from eligibility.[15]
This denial of benefits is tragic, if for no other reason than it denies these veterans the benefits likely intended to heal their service-incurred medical disorders.[16] The real tragedy lies, however, in the fact that, in many cases, service-incurred medical disorders such as post-traumatic stress disorder (“PTSD”), military sexual trauma (“MST”), and traumatic brain injury (“TBI”) likely led to the misconduct that resulted in their less-than-honorable discharges in the first instance.[17] Thus, by sheer virtue of the fact that these veterans incurred injuries while serving their country, which predisposed them to misconduct, they also lost eligibility for the benefits stemming from the government’s obligation “[t]o care for [those] who shall have borne the battle” because of those injuries.[18]
Though the ultimate effect of this issue is usually realized when these veterans are denied benefits from the V.A., the nexus for the real issue originates when the military discharges them with a less-than-honorable characterization for “minor disciplinary infractions that are actually symptomatic of trauma sustained during military service.”[19] Common examples of the misconduct stemming from service-incurred trauma that resulted in less-than-honorable discharges includes drug use as a form of self-medication for untreated PTSD, and MST victims being absent without authorization as a result of the trauma they experienced.[20] The issue has only gotten worse for the post-9/11 generation of veterans, with a substantial spike in the number of veterans receiving less-than-honorable discharges in the decades that followed World War II.[21]
Once discharged, veterans with less-than-honorable discharges only option for recourse is to apply for a discharge upgrade through a Department of Defense (“DoD”) “process known as the Military Discharge Review Board” (“Board”), but this process is fraught with many obstacles for veterans.[22] To its credit, several years ago the DoD recognized the issue of wrongful discharges, its culpability, and its obligation to right the wrongs, instituting several DoD-wide policies to these Boards, including one in 2017 requiring Boards to give “’liberal consideration’ . . . in situations in which a service-related medical disorder,” such as PTSD or MST, “could have led to [the] misconduct.”[23] Under this “liberal consideration” standard, the Boards were supposed to grant discharge upgrades—removing the stigma of the less-than-honorable discharge and awarding eligibility for most post-service benefits—in cases where the veterans’ discharges could be causally linked to a service-incurred medical disorder.[24] Unfortunately, the Boards did not grant upgrades in many cases in which the veterans believed they should have.[25]
As a result, many veterans whose discharge upgrade requests were denied filed class-action lawsuits against the Army’s Discharge Review Board in 2017 and the Navy’s Discharge Review Board in 2018, alleging that the Boards were not following the DoD guidance and failed to apply the appellant-friendly “liberal consideration” standard of review.[26] Specifically, the plaintiffs in both cases alleged that the Boards improperly denied discharge upgrades “despite evidence that veterans were struggling with post-traumatic stress disorder, traumatic brain injury or military sexual trauma when they [were discharged] from the military [with a less-than-honorable discharge].”[27] Though the Navy and Army Discharge Review Boards stop short of acknowledging full-blown wrongdoing in the carefully crafted settlement agreements that resulted from the lawsuits,[28] it would appear that they nonetheless recognize a level of culpability for “ignor[ing] the policy and den[ying] upgrades when they were warranted.”[29]
As a result of the settlement with the Navy Discharge Review Board, which was approved on February 15, 2022, and closely mirrors the settlement agreement reached with the Army Discharge Review Board approved on April 26, 2021, the Board must do three things.[30] First, the Board must “automatically review[ ] cases going back to 2012” to ensure discharge upgrades were not improperly denied.[31] Second, the settlement requires the Board to allow veterans with less-than-honorable discharges going all the way back to October 7, 2001—when the war in Afghanistan began—“to reapply for a discharge upgrade.”[32] And third, veterans will be allowed to participate in their discharge upgrade hearing through teleconferencing—a departure from previous rules which required them to travel to Washington D.C. to make a personal appearance before the board.[33]
Though the settlement does not begin to make up for all the injustices the veterans that stand to benefit from it have endured in the past, it is nonetheless an important first step in the right direction. Moreover, in the words of the U.S. District Court judge who approved the settlement, the settlement is also “an impressive example of the manner in which a class action can be made the vehicle for doing substantial justice and advancing the rule of law.”[34]
[1] Nicole Gaouette et al., The Last US Military Planes Have Left Afghanistan, Marking the End of the United States’ Longest War, CNN (Aug. 31, 2021, 2:19 PM), https://www.cnn.com/2021/08/30/politics/us-military-withdraws-afghanistan/index.html.
[2] The term “veteran” is used in this blog in the colloquial sense and not as a legal term, as there are various legal definitions of “veteran,” each with their own requirements and implications. What is a Veteran? The Legal Definition, Veterans Auth., https://va.org/what-is-a-veteran-the-legal-definition/ (last visited Mar. 15, 2022).
[3] Ali R. Tayyeb & Jennifer Greenburg, Bad Papers 1 (Watson Inst. for Int’l and Pub. Aff.’s at Brown Univ. ed., 2017) https://watson.brown.edu/costsofwar/files/cow/imce/papers/2017/Tayyeb%20Greenburg_Bad%20Papers%20.pdf.
[4] Id.
[5] “Less-than-honorable discharge” is a legal term of art used to colloquially refer several types of discharges that do not meet the definition of an “honorable discharge,” a term used to indicate that “a military service member . . . has successfully and wholly completed the obligations [expected] of him or her.” See Honorable Discharge, Legal Dictionary (June 16, 2017), https://legaldictionary.net/honorable-discharge/. Less-than-honorable discharges are usually assigned to those who “do not follow the rules at best, and to those who commit crimes at worst.” Id. Less-than-honorable discharges also impact a veteran’s ability to receive post-service benefits, can limit their job prospects, and will usually prevent them from reenlisting in the military. Id.
[6] Tayyeb & Greenburg, supra note 3, at 1 (“An increasing percentage of veterans have been discharged from the military in such a way as to leave them effectively ineligible to receive Veterans Affairs (VA) healthcare, veteran benefits such as education and housing support, and other resources.”).
[7] Nikki Wentling, Court Orders Navy to Review Thousands of ‘Bad Paper’ Discharges, Stars & Stripes (Feb. 17, 2022), https://www.stripes.com/branches/navy/2022-02-17/navy-marines-bad-paper-discharges-lawsuit-settlement-5057639.html.
[8] The Origin of the VA Motto: Lincoln’s Second Inaugural Address, U.S. Dep’t of Veterans Aff., https://www.va.gov/opa/publications/celebrate/vamotto.pdf (last visited Mar. 5, 2022).
[9] Id. (emphasis added).
[10] Id. (emphasis added).
[11] About VA, U.S. Dep’t of Veterans Aff., https://www.va.gov/ABOUT_VA/index.asp (last visited Mar. 5, 2022); see also The Origin of the VA Motto, supra note 8.
[12] About VA, supra note 11.
[13] Id.
[14] See Lawrence J. Korb & Kaveh Toofan, The Challenges Facing the Department of Veterans Affairs in 2021, Ctr. for Am. Progress (May 17, 2021), https://www.americanprogress.org/article/challenges-facing-department-veterans-affairs-2021/.
[15] Wentling, supra note 7; see also 38 U.S.C. § 101(2) (defining a veteran as “a person who served in the active military, naval, air, or space service, and who was discharged or released therefrom under conditions other than dishonorable” (emphasis added)); Eligibility for VA Health Care, U.S. Dep’t of Veterans Aff., https://www.va.gov/health-care/eligibility/ (last updated Jan. 18, 2022).
[16] See About VA, supra note 11.
[17] Wentling, supra note 7.
[18] About VA, supra note 11.
[19] Tayyeb & Greenburg, supra note 3 at 1.
[20] Id. at 1, 8–9. See also Meagan Flynn, He Went AWOL After Being Sexually Assaulted. After 30 Yeaers, the Navy Finally Believed Him, The Wash. Post (June 5, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/06/05/he-went-awol-after-being-sexually-assaulted-after-30-years-the-navy-finally-believed-him/.
[21] Tayyeb & Greenburg, supra note 3 at at 5.
[22] Id. at 6.
[23] Wentling, supra note 7 (emphasis added).
[24] Id.
[25] Id.
[26] Id.; see also Nikki Wentling, Court Orders Army to Review Thousands of ‘Bad Paper’ Discharges, Stars & Stripes (May 28, 2021), https://www.stripes.com/veterans/2021-04-28/ARMY-DISCHARGES-1355142.html; Manker v. Del Toro, No. 3:18-CV-00372-CSH, slip op. at 2–3 (D. Conn. 2022); Kennedy v. Whitley, 539 F. Supp. 3d 261, 264 (D. Conn. 2021).
[27] Wentling, supra note 7 (emphasis added); see also Manker, No. 3:18-CV-00372-CSH, slip op. at 2–3; Kennedy, 539 F. Supp. 3d at 264.
[28] See Manker, No. 3:18-CV-00372-CSH, slip op. at 4; Kennedy, 539 F. Supp. 3d at 271.
[29] Wentling, supra note 7.
[30] Id.; see also Kennedy, 539 F. Supp. 3d at 266.
[31] Wentling, supra note 7 (emphasis added).
[32] Id. Veterans must usually apply for a discharge review within fifteen years of discharge. See Naval Discharge Review Board, Couns. of Rev. Bd.’s, https://www.secnav.navy.mil/mra/CORB/Pages/NDRB/default.aspx (last visited Mar. 7, 2022).
[33] Wentling, supra note 7.
[34] Manker, No. 3:18-CV-00372-CSH, slip op. at 14.
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