Veterans attend a presentation at the Capitol in Washington on March 1, 2017, as lawmakers heard from American Legion representatives about veterans' issues.

Veterans attend a presentation at the Capitol in Washington on March 1, 2017, as lawmakers heard from American Legion representatives about veterans' issues. (Carlos Bongioanni/Stars and Stripes)

WASHINGTON — The Defense Department on Monday issued a sweeping policy change to afford more leeway to veterans seeking upgrades to their other-than-honorable discharges.

A memorandum dated Aug. 25 instructs the Army Review Boards Agency — the office charged with changing military records — to give “liberal consideration” to veterans looking to upgrade their less-than-honorable discharges, or “bad paper,” because of mental health conditions or traumatic brain injury, sexual assault or sexual harassment and outlines what should be considered when deciding an upgrade.

In 2014, former Secretary of Defense Chuck Hagel had ordered the Army Review Boards Agency to give consideration to veterans looking to upgrade their less-than-honorable discharges because of post-traumatic stress disorder. The new memo expands on Hagel’s order after years of veterans asking for government recognition that troops are, in some instances, affected by service-related mental health conditions that change their behaviors and lead to disciplinary problems.

“This new guidance is something that veteran advocates should be really excited about – it’s what we’ve been asking for from the Pentagon for years,” said Kristofer Goldsmith, an Iraq War veteran who has fought for 10 years to change upgrade procedures. “This memo is filled with signals that there may yet be hope for the thousands of veterans who have been unfairly suffering the effects of bad paper.”

After Hagel issued his memo three years ago, observers said the guidance was applied differently based on military branch, and veterans’ applications for upgrades grew into a backlog of cases. Goldsmith, who has tried to have his less-than-honorable discharge upgraded multiple times, said the Hagel memo mostly benefited Vietnam War-era veterans. And some servicemembers with PTSD were still being discharged with bad paper.

The Government Accountability Office released a report in May stating more than 57,000 servicemembers suffering from PTSD, TBI or adjustment, anxiety, bipolar and substance abuse disorders were separated from the military for misconduct from 2011 through 2015. Researchers found the Defense Department didn’t consistently apply its policy to take into consideration that a service-related medical disorder could lead to misconduct.

Most of the servicemembers were given a “general” discharge, making them ineligible for some services through the Department of Veterans Affairs. But more than 13,000 were given the more stringent “other-than-honorable” discharge, which disqualifies them from receiving any VA health care, as well as education benefits, preferential hiring and tax breaks.

The new memo, released late Monday, was sent to military secretaries and signed by Anthony M. Kurta, a retired Navy rear admiral who is performing the duties of the undersecretary of defense for personnel and readiness.

In December, Congress passed the Fairness for Veterans Act, requiring military boards to consider evidence from a veteran’s health care provider when deciding upgrades. Later that month, the Defense Department announced a review of its policies for upgrading discharges.

The memo was a result of that review and an attempt to clarify “lingering questions” and “potential ambiguities,” Kurta wrote.

“As time has passed, we better understand victimology today and we better understand PTSD today,” Air Force Lt. Col. Reggie Yagel said in a Defense Department video accompanying the memo. Yagel is director of legal policy with Kurta’s office.

“The whole policy is designed to understand we need to afford some leniency,” he said. “It’s in our interest to ensure those who have suffered injustice or believe their discharge is unfair, that they have a reasonable opportunity… to establish the basis for their discharge was precipitated by things outside their control. This clarifying guidance is intended to ease those burdens and make it easier for an applicant to establish that.”

The memo requires boards to ask whether a veteran had a condition or experience that would excuse or outweigh their other-than-honorable discharge.

Kurta’s guidance acknowledges that TBI, mental health conditions and instances of sexual assault and harassment are often not reported. Because of that, it would be “unreasonable” for boards to expect explicit evidence, the memo reads. It asks board members take into consideration evidence from health care providers, family and friends, and the veteran’s own testimony.

Vietnam Veterans of America has previously sued the Pentagon over its treatment of veterans with PTSD. John Rowan, the group’s president, said Tuesday that the memo was a “step in the right direction.”

“But it’s nowhere near enough,” Rowan said in a statement. “Countless veterans who have suffered from PTSD, TBI and [military sexual trauma] have been issued bad paper and unfairly denied access to critical services and benefits.”

Michael Wishnie, a Yale law professor who has represented Vietnam Veterans of America in several lawsuits, said the memo might not be enough to change what he described as a “historic hostility” in the military toward veterans with other-than-honorable discharges.

In March, VA Secretary David Shulkin announced the VA would provide urgent mental health care to veterans with other-than-honorable discharges – aid that wasn’t available previously. The policy started July 5, and veterans with bad paper can now receive up to 90 days of mental health care.

Though Shulkin’s announcement was a “major shift” in how government officials talked about veterans with bad paper, critics argued the policy didn’t go far enough, Goldsmith said. Brown University released a report in June that the VA was merely instituting a practice that was already in place, informally, in the VA health care system. The report’s co-author, Ali Tayyeb, said it “falls way short.” He instead called for new limitations on the number of bad paper discharges that the Defense Department could issue.

Since late last year, Vietnam Veterans of America and Goldsmith’s group High Ground Veterans Advocacy have pleaded that the president – first former President Barack Obama, and now President Donald Trump – pardon veterans who were administratively separated from the military and did not face a court-martial. They put out that call again Tuesday, with the intention to clear up bad paper and get benefits to veterans all at once.

“If Sheriff Joe Arpaio deserves a pardon, then why not wounded warriors who are suffering from PTSD, TBI or sexual violence?” Wishnie said in a written statement, referencing Trump’s pardon Friday of an Arizona sheriff who violated a federal court order to stop racially profiling Latinos.

If an immediate pardon doesn’t happen, Wishnie said, the Defense Department needs to at least initiate a large-scale outreach effort to veterans, informing them of the new standards. Wishnie contended the boards that make the decisions will require “rigorous oversight” to ensure they’re following through on the policy changes.

The Defense Department posted information to its website on how to apply for an upgrade.

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Nikki Wentling has worked for Stars and Stripes since 2016. She reports from Congress, the White House, the Department of Veterans Affairs and throughout the country about issues affecting veterans, service members and their families. Wentling, a graduate of the University of Kansas, previously worked at the Lawrence Journal-World and Arkansas Democrat-Gazette. The National Coalition of Homeless Veterans awarded Stars and Stripes the Meritorious Service Award in 2020 for Wentling’s reporting on homeless veterans during the coronavirus pandemic. In 2018, she was named by the nonprofit HillVets as one of the 100 most influential people in regard to veterans policymaking.

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