“Another example of the failure of the VA’s regulations is the absence of any generally applicable provision for considering whether the veteran served in hardship conditions, including whether the veteran served in combat. . . .”
[RESEARCHER UPDATE 6 June 2019] My original note below, reports on the 2016 report from Swords to Plowshares and the Veterans Legal Clinic at Harvard. And it speaks of the notable loyalty and compassion that I’d seen among Marines, including for those who’ve died at their own hands and the women who’ve served as well. Given the nature of service that our Nation requires and has always required of our Marines, I reference the report’s disturbing finding that the VA denies services to Marines far more than it does Airmen. My personal observations in the note were largely based on what I’d observed over time in Leatherneck Lifestyle (The Underground), a Facebook group whose members are Marines or, as in my case, a civilian who’s been really grateful for them ever since some really scary days in West Africa when I was a little kid. This photo of Facebook data from 16 May 2018 confirms my membership in the closed group. But the full set of records received from Facebook a year later, on 11 May 2019, confirms the reason that I can’t learn from those Marines now: soon after 276 of them and their supporters found another one of my posts useful, I was yanked from their group. And all evidence of my ever being a member vanished. This is the same Facebook data set that falsely reports that I stopped following aggressive, leftist, anti-American pages from groups that i never knew existed and if I had, almost certainly would never have visited them – UNLESS I could use the angry left’s pages to learn more about the extreme left alliance that wants an innocent, patriotic American woman in Tucson dead.
ORIGINAL RESEARCHER NOTE: By far more than anyone else, United States Marines and their supporters have reacted to and commented on this solemn, snow-shrouded image that I posted on Facebook mere hours ago. It’s an anecdotal truth for this author that those in and around the USMC are quick, respectful, and openly compassionate when it comes to honoring the noble dead. Collectively, the kind of fight that our Marines take to America’s enemies is a lot different than that we ask of our airmen. So, why: The VA has effectively decided that Marines are more than five times more “Dishonorable” than Airmen.
Here’s an excerpt from the March 2016 report as accessed online 21 December 2018:
Complete report available at:
Not all who have served are “veterans” in the eyes of the Department of Veterans Affairs. If the veteran has less than a General discharge, the VA creates obstacles to getting health care, benefits, homeless resources and other services. Most of these veterans are simply turned away. Congress never meant for eligibility to be so exclusive, it intended that only veterans who served dishonorably be denied access. The VA’s own discretionary policies unnecessarily deny hundreds of thousands veterans benefits, who are often those most in need of the VA’s support. These former service members are more likely to have mental health disabilities and twice as likely to commit suicide. They are more likely to be homeless and to be involved with the criminal justice system.
KEY FINDINGS FROM THE REPORT
. . .
(Excerpted from p. 12 and following)
VA Regulations Result in Unequal Exclusion Rates Between Branches
The historically unprecedented exclusion rate today is due almost enti rely to the VA’s discretionary choice to presume ineligibility for veterans who received administrative Other Than Honorable discharges.
That choice deprives tens of thousands of veterans of needed care, despite the fact that their service would not be considered “Dishonorable”—and was not deemed Dishonorable by the military. What is more, significant disparities exist among the administrative separati on practices of the various service branches. The Army, Navy, Air Force, and Marine Corps each has its own separation regulations and policies. Moreover, within each branch, different units and commands may implement those regulations and policies in a different manner. Thus, service members who engage in similar misconduct may receive disparate treatment: one may be retained, another may be discharged under General conditions, another discharged under Other Than Honorable conditions.
This is due to different leadership styles, not differences in degrees of “dishonor.” A report of the Government Accountability Office (GAO) on discharge characterization documented the range of discharge practices and ascribed disparities to differences in leadership and management styles rather than a measurable difference in “honor” or “character.” The GAO compared Marines and Airmen with the same misconduct, service length, and performance history, and found that the Air Force was thirteen times more likely to give a discharge Under Honorable conditions than the Marine Corps.
Because the VA presumptively excludes veterans with non-punitive Other Than Honorable discharges, this discrepancy results in significant differences in VA eligibility. For service members with equivalent conduct histories, Airmen are 13 times more likely than Marines to be deemed presumptively eligible—and recognized as a “veteran”—by the VA.
This results in significant differences in aggregate. Whereas 98% of veterans who have served in the Air Force since 2001 can access the VA when they leave the service, only 88% of Marines from the period are
presumptively recognized as “veterans” by the VA. (See Table K.9). The VA has effectively decided that Marines are more than five times more “Dishonorable” than Airmen.
This disparity provides a potent reminder for why Congress decided to exclude only veterans who received or should have received a Dishonorable discharge by Court-Martial. Although there are wide discrepancies among services in their administrative discharge practices, the service branches are remarkably similar in how they use punitive discharges. Congress specifically noted that the discretion given to commanders for administrative separations can result in unfair outcomes, and gave veterans the benefit of the doubt by only excluding those who received or deserved a Dishonorable discharge by court-martial. Because the VA’s regulations have presumptively excluded all veterans with administrative Other Than Honorable discharges, the VA is failing to act in accordance with Congress’s decision.
Eligibility Decisions Fail To Adequately Consider Mental Health Conditions that May Have Contributed to Discharge.
Overall, the VA’s COD regulations prevent consideration—except in narrow and specifi c circumstances—of facts that Congress intended the VA to take into account: mitigating factors, extenuating circum-
stances, and positive facts. As one example, the VA’s regulations provide little room for consideration of whether any mental health condition explains or mitigates the conduct that led to the veteran’s bad-paper discharge. It is deeply unfair—and contrary to Congress’s intent—to exclude veterans from basic veteran services for behavior that is symptomatic of mental health conditions that may be related to their service.
It is well established that post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), depression, operational stress, and other mental health conditions can lead to behavioral changes. In some cases, military commanders incorrectly attribute those behaviors to bad character, rather than as signs of distress and disease. Indeed, a 2010 study of Marines who deployed to Iraq found that those who were diagnosed with PTSD were eleven times more likely to be discharged for misconduct and eight times more likely to be discharged for substance abuse than Marines without a PTSD diagnosis.
Yet, the VA’s regulati ons contain only one narrow provision related to mental health: misconduct leading to discharge may be overlooked if the veteran was “insane” at the time of the misconduct leading
to discharge. The VA’s definition of “insanity” is antiquated—out of step with the practices of modern psychology and psychiatry, which no longer deem people “insane.” . . .
Eligibility Decisions Do Not Consider Whether the Veteran Served In Combat or Other Hardship Conditions
Another example of the failure of the VA’s regulations is the absence of any generally applicable provision for considering whether the veteran served in hardship conditions, including whether the veteran served in combat. . . .
Among additional expert analyses of what bad paper discharges do to those who’ve served and their families is:
“Bad Papers”: The Invisible and Increasing Costs of War for Excluded Veterans
In a forthcoming article, this author points to another problem facing those with bad paper discharges:
“Veterans with bad paper discharges can get screwed all the way around. Not only are they often – but not always – excluded from VA services and healthcare, they “may be excluded from access to community resources also; many community programs follow the eligibility requirements set by the VA.”
Research Review: Underserved, How the VA Wrongfully Excludes Veterans With Bad Paper. Iraq and Afghanistan Veterans of America (IAVA) iava.org/blog May 3, 2016
In recent months, some veterans have been given the right to file class action lawsuits against the VA for being denied services due to discharges they say resulted from conduct that’s symptomatic of trauma experienced while doing their military jobs. Here’s an early article about this type of class certification.