A U.S. Army soldier who served in Iraq in 2007 was engaged in almost daily combat, and he watched his friends die in firefights and blown apart by IEDs. He even thought it was his turn when a rocket exploded beside him, knocking him unconscious.
After he returned home, he was diagnosed with Post-Traumatic Stress Disorder and Traumatic Brain Injury, but while he was still in the fight in Iraq, his temperament and personality changed. A heated argument in the chow hall then set into motion a series of events that resulted in him receiving a less-than-honorable discharge. Now, he cannot access Department of Veterans Affairs health care, including mental health care, to treat his PTSD and TBI.
I currently represent this soldier in his new fight, the fight for justice and relief from the scars of his combat service.
As a Marine Corps officer who served in both Iraq and Afghanistan, I have seen many soldiers separated from the military with a less-than-honorable discharge. Some were bad apples who very much deserved it. Others, however, were like the solider I described above: veterans whose misconduct was due to PTSD, TBI, or other mental health disorders directly linked to their service in combat.
These veterans are caught in a cruel Catch-22: they cannot obtain treatment for their PTSD because of consequences of their PTSD.
Today, more than 125,000 post-9/11 veterans cannot access basic VA services. That is equivalent to the size of the initial U.S. invasion force in Iraq. For most of these veterans, a less-than-honorable discharge is the roadblock to care. To make matters worse, the VA reports that PTSD is a significant risk factor for homelessness and suicide.
When military service members leave active service, they receive a discharge. A large percentage of the service members who receive a less-than-honorable discharge are no longer “veterans” under the law, which prevents them from receiving VA health care and disability benefits. This means that most veterans with PTSD who receive a less-than-honorable discharge cannot access mental health care at the VA.
Vietnam veterans have been the most affected. The military issued 260,000 less-than-honorable discharges to Vietnam veterans, and the VA estimates that 30 percent of Vietnam veterans suffer from PTSD. Many of these veterans received less-than-honorable discharges for misconduct linked to their PTSD.
I now direct the Veterans Legal Clinic at Wake Forest University School of Law, which represents veterans seeking to upgrade unjust discharges. My experience has left me astonished by how widespread this problem is and has highlighted the grave need for lawyers to step forward on behalf of affected veterans.
There are two administrative boards which can upgrade a veteran’s discharge characterization if the military’s decision was unjust or if the law subsequently changed in their favor.
Despite the growing awareness of the detrimental effects of PTSD, TBI and other mental health disorders, these boards were not able to consider PTSD in discharge upgrade petitions until 2014, when then Secretary of Defense Chuck Hagel issued a memorandum to the military departments. The Hagel Memo instructed one of the two boards to “fully and carefully consider every petition based on PTSD” and to give “liberal consideration” to discharge upgrade petitions based on PTSD or PTSD-related conditions.
In December 2016, with the enactment of the National Defense Authorization Act for Fiscal Year 2017, Congress changed the law governing the other board by adding essentially the same “liberal consideration” standard found in the Hagel Memo. Finally, in August 2017, Under Secretary of Defense Anthony Kurta issued a memorandum with clarifying guidance, applicable to both boards, which extended consideration to PTSD, TBI, sexual assault and sexual harassment.
Now, we must get this information in the hands of affected veterans and they must find legal representation. Attorneys help these veterans gather and evaluate evidence, craft arguments, and navigate through what can be a complicated process. Most importantly, veterans with legal representation have a significantly higher rate of success.
Decades after many Vietnam combat veterans were left out in the cold to deal with both the physical and mental wounds of war alone, we finally have a remedy. Obviously, nothing we do now can undo the profound impact former military policies had on the lives of these veterans. Nothing we do now will eliminate the undeniable connection between these policies and the widespread and alarmingly high rates of homelessness and suicide in our veteran population. But we have to try. We must find these forgotten veterans, who risked their lives for our country, and tell them that reinforcements have finally arrived.
Brandon Heffinger is a Marine Corps officer, the Director of the Wake Forest Veterans Legal Clinic and a current MPA student at the John F. Kennedy School of Government at Harvard University.