A more just process for our veterans is a must
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Compassion for veterans with less-than-fully-honorable discharges, known colloquially as “bad paper,” has never been politically popular.

This fall, Congress and President Barack Obama must have the courage to ensure the Fairness for Veterans Act becomes law and to initiate reform of the review boards of the armed services. 

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Although it is a common mistake to label all bad paper as “dishonorable,”  “dishonorable discharges” for felony-level crimes are extremely rare. The vast majority of veterans with bad paper receive administrative discharges, such as “general” or “other-than-honorable,” for non-felonious conduct, such as, a single act of drug use, having a personality disorder, and—prior to the repeal of “Don’t Ask, Don’t Tell—” being homosexual.

Administrative discharges avoid many procedural protections provided by the Uniform Code of Military Justice

Veterans with bad paper return to our communities stigmatized, wounded, and with an elevated risk of suicide. Many were discharged with undiagnosed or misdiagnosed post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI), or were survivors of military sexual trauma (MST).

Bad paper is a life sentence. Without a correction — a discharge upgrade — from a review board, veterans with bad paper may be denied earned benefits, including medical care and education assistance, and have difficulty finding employment. Approximately 560,000 Vietnam-era veterans received bad paper and hundreds of thousands more have since joined them, including 13 percent of the post-9/11 generation.

Under the current correction system, very few of these veterans will ever receive a discharge upgrade.   

Upgrading a discharge is often difficult. With no significant outreach by the armed services, few veterans apply, and most apply with inadequate applications and without counsel. The review boards’ online resources—including a disorganized library of valuable past decisions—are deficient. Homeless, disabled, and low-income veterans are expected to travel to the boards in Washington, DC at their own expense, and veterans do not have a right to a video hearing. 

Existing law gives the review boards extraordinary discretion. With few exceptions, no evidence or arguments unequivocally entitle a veteran to an upgrade, and few denials are challenged in federal court. Moreover, the law provides little guidance on how the review boards should treat a veteran with a diagnosis of mental health issues or a survivor of MST, and it does not require the boards to correct a military medical misdiagnosis. 

Over time, the review boards have become far less willing to upgrade discharges. From FY 2010 to FY 2013, the Army Discharge Review Board reviewed 11,460 applications and granted correction to only 10% of applicants. From 1980 to 1983, however, the board reviewed 45,734 applications and granted corrections to 28 percent of applicants.

Despite of the recent trend against granting upgrades, there has been one significant reform. In 2014, under threat of a class action lawsuit, Secretary of Defense Hagel instructed some review boards to give “liberal consideration” to bad paper Vietnam-era veterans with PTSD who committed minor acts of misconduct. In 2016, Hagel’s guidance was expanded to include veterans of all eras. 

Upgrades for veterans with PTSD have increased under Hagel’s guidance, but outreach to these injured veterans has been minimal. Furthermore, the review boards have not enthusiastically embraced Hagel’s guidance, and they persistently deny many applicants a full upgrade to an honorable discharge and refuse to remove highly prejudicial narrative reasons for discharge from a veteran’s discharge certificate.

In the first year under Hagel’s guidance, there was a promising sign: the Army Board for Correction of Military Records corrected 67 percent of applications supported by some evidence of PTSD. But, that progress seems to be in decline. In the first two quarters of 2016, across all DoD boards, only 693 veterans applied under Hagel’s guidance and only 22.5 percent received corrections.

The Fairness for Veterans Act is a bipartisan effort to codify and expand Hagel’s guidance. It must become law. However, the White House has not actively supported the Fairness for Veterans Act or reform of the review boards. Through inaction, thousands of veterans suffering from PTSD, TBI, or who survived MST are being denied the resources they need to heal and they are forced to carry life-long shame. Moreover, we currently have a military personnel system where service members have a more than 1 in 10 chance of being branded with bad paper for minor acts of misconduct and little chance of ever receiving an upgrade.  

But, passage of the Fairness for Veterans Act is the first step. We’ve already seen Hagel’s guidance misinterpreted and, in some cases, ignored by the review boards and there’s no guarantee that the Fairness for Veterans Act won’t suffer the same fate without additional reform of the boards enacted by President-elect Trump’s administration.  

It is time to sign the Fairness for Veterans Act into law and initiate reform of the review boards.

Addlestone is a founder of the National Veterans Legal Services Program. Lessard is a New York attorney who has handled discharge upgrade applications pro bono and a founder of the New York County Lawyers Association (NYCLA) Veterans Discharge Upgrade Program.


 

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