As many as 80,000 veterans with PTSD could gain discharge upgrades
By Tom Philpott | | Published: September 18, 2014
As many as 80,000 veterans who suffered from post-traumatic stress and received Other Than Honorable discharges can use evidence of their PTSD to petition service boards to upgrade the bad paper discharge.
At stake for individuals is removal of lifelong stigmas that have scarred reputations, limited job prospects and blocked critical veteran benefits.
Defense Secretary Chuck Hagel this month directed that boards for correction of military records or naval records begin to “fully and carefully consider every petition based on PTSD brought by each veteran.”
His Sept. 3 memo gives Army, Navy and Air Force secretaries “supplemental guidance” that boards are to use when petitioners seek discharge upgrades claiming that unrecognized Post-Traumatic Stress Disorder caused the misbehavior that led to Other Than Honorable discharge.
Many of the veterans who will gain from the new guidance served during the Vietnam War, before the medical community recognized PTSD as a disabling service-connected condition. PTSD only received a medical diagnostic code in 1980, five years after that war officially ended.
Hagel instructed boards to give “liberal consideration” to any language found in medical records describing one or more symptoms that meet diagnostic criteria for PTSD or related conditions. Liberal consideration also is to be used when veterans’ civilian providers have diagnosed PTSD.
And where PTSD “is reasonably determined to have existed at the time of discharge,” it is to be “a mitigating factor” in the misconduct that generated an Other Than Honorable, also then called Undesirable, discharge.
Hagel likely is reacting to several recent developments including a federal class action lawsuit filed last March on behalf of Vietnam veterans, which generated a wave of publicity and attracted an influential advocate in Hagel’s former Senate colleague, Sen. Richard Blumenthal (D-Conn.).
Blumenthal said last week that many veterans went to war when PTSD “was undiagnosed and untreated” and it “caused many of them, particularly from the Vietnam era, to be given less than honorable discharges.”
The Veterans Legal Services Clinic at Yale University Law School filed the class action lawsuit, Monk v. Mabus, with five combat veterans and three veterans’ organizations named as plaintiffs. Their complaint says that as a result of undiagnosed PTSD, these veterans were unable to perform assigned duties and were discharged for misconduct attributable to post-traumatic stress. Yet over the years, the lawsuit contends, the military “has near-categorically refused to correct these wrongful discharges.”
One plaintiff, Conley Monk, 66, joined the Marine Corps at age 20. Nine months later he was in Quang Tri Province, South Vietnam, flinching at enemy mortar rounds and sniper fire and, for him, living in a nightmarish habitat of mosquitoes and snakes, so different from what he had known.
The day he arrived in Vietnam with the 9th Motor Transport Battalion, 3rd Marine Division, the airport came under a barrage of mortar fire. From July through November 1969, he drove troop trucks and “many times we would be under fire,” he recalled. “Every day I prayed God would bring me back home to the United States.”
When his unit redeployed to Okinawa, but return to Vietnam remained a terrifying possibility, Monk said he suffered flashbacks from undiagnosed post-traumatic stress. He used drugs too and was absent without leave.
One night on returning to his unit, his sergeant grabbed him and accused him wrongly of theft. They fought. At his non-judicial punishment proceeding, Monk said, “they offered me an undesirable discharge. I wanted to be relieved. I wanted to come home from the military. I accepted it.”
But Monk soon learned a ticket home on a bad discharge cost him a lot. While friends attended college on the GI Bill, Monk needed student loans. He wasn’t eligible for a VA guaranteed home loan or VA healthcare or disability compensation, which he sought for a foot condition he blamed on the dampness of Vietnam. The wartime stress also stuck around.
“I used to have nightmares of Vietnam,” Monk said. “And whenever I would hear [a vehicle] backfire I would hit the ground, thinking I was under fire. I would wake up in the middle of the night with cold sweats…change my tee shirt and go back to sleep.”
Fortunately for Monk his “bad paper” didn’t impact employment. He worked a full career as a substance abuse counselor in New Haven, Conn. But today he has PTSD and Type II diabetes, both compensable conditions if a Navy board will upgrade his discharge to general or honorable. Hagel’s guidelines have no effect on Bad Conduct or Dishonorable discharges.
Advocates for Vietnam vets point to a sharp contrast in their treatment with that of Iraq and Afghanistan vets see today. Under a recent policy change to protect PTSD victims, the services cannot separate a member with bad paper discharge without screening for PTSD and traumatic brain injury. The idea is that members with behavioral issues might be more deserving of mental health care and a medical discharge than a punitive discharge.
That wasn’t the mindset during Vietnam and hasn’t been the practice, even recently, of boards for correction of records, writes lawyer Rebecca Izzo in a lengthy analysis of the issue published last spring in Yale Law Journal.
Not “every veteran with PTSD and a bad discharge deserves an upgrade,” Izzo wrote. “However, under current practice, the [Army Board for Correction of Military Record] consistently disregards later evidence of PTSD, making it nearly impossible for veterans with bad discharges arising from conduct due to undiagnosed PTSD to get discharge upgrades.”
Hagel’s guidance will address that criticism.
“We are very excited about the memo,” said Emma Kaufman, a law student and intern at the Yale clinic that filed the class-action lawsuit. “It is the foundation for a good solution [but not] a complete solution.”
The lawsuit will remain active until plaintiffs are satisfied with how the services are implementing the guidance, to include effective outreach to impacted veterans on how and why to petition boards for better discharges.
The Yale team came up with an 80,000 estimate of Vietnam veterans impacted both by PTSD and having undesirable or OTH discharges.
Kaufman said vets who want help petitioning boards can call the legal services clinic at (203) 436-9270 or search for legal services in their communities at Stateside Legal Services’ website.
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