Category Archives: OTH

Hostile holidays? Give Sir Anthony Hopkins two minutes in Spielberg’s Amistad: a source to turn to when “there appears no hope at all”

“PROSE”: “the ordinary language people use in speaking or writing.”  – Merriam Webster

Sir Philip Anthony Hopkins, as John Quincy Adams presenting oral argument before the Supreme Court of the United States, in Amistad (1997). This two-and-a-half minute clip reminds us of an oft-forgotten well from which we might draw courage when “there appears no hope at all.”

“The other night I was talking with my friend, Cinque. He was over at my place, and we were out in the greenhouse together, and he was explaining to me how when a member of the Mende—that’s his people—how when a member of the Mende encounters a situation where there appears no hope at all, he evokes his ancestors . . . tradition. See, the Mende believe that if one can summon the spirit of one’s ancestors, then they have never left, and the wisdom and strength they fathered and inspired will come to his aid. James Madison, Alexander Hamilton, Benjamin Franklin, Thomas Jefferson, George Washington, John Adams . . . we have long resisted asking you for guidance. Perhaps, we have feared in doing so, we might acknowledge that our individuality, which we so, so revere, is not entirely our own. Perhaps, we’ve feared an appeal to you might be taken for weakness. But we’ve come to understand, finally, that this is not so. We understand now, that we’ve been made to understand, and to embrace the understanding, that who we are is who we were. We desperately need your strength and wisdom, to triumph over our fears, our prejudices, ourselves. Give us the courage to do what is right. And if it means civil war, then let it come. And when it does, may it be, finally, the last battle of the American Revolution.”

 

Legal citation for the real case decided by the U.S. Supreme Court:

The United States, Appellants, v. The Libellants And Claimants Of The Schooner Amistad, Her Tackle, Apparel, And Furniture, Together With Her Cargo, And The Africans Mentioned And Described In The Several Libels And Claims, Appellees, 40 U.S. 518; 10 L. Ed. 826 (1841).

 

Feature image attribution: Battle Bare for PTSD and Military Suicide, accessed online 21 November 2018 at https://www.pinterest.com/pin/292734044500114364/

 

 

Charles.photo.lawlibrary. 150 x 200Charles Bloeser is a lawyer and the researcher behind the creation of combatresearchandprose.com, a new open-source applied research initiative examining combat and those marked by it. His most recent publication, in August 2018, reports how a cancer-stricken, combat-haunted Vietnam veteran fell between the cracks in a modern jail. It’s an account that, from that warrior’s deathbed, he asked author to share with those best able to keep the same thing from happening to others. STRIFE, at the Department of War Studies, Kings College London, gave him a way to do that.  

http://www.strifeblog.org/2018/08/02/henry-a-wounded-soldier-forgotten-by-all-in-an-american-jail-by-all-except-his-brothers-who-fell-beside-him-in-vietnam

48,000* paths to homelessness?

The Heritage Foundation’s John Malcolm recently testified that there are more than 48,000 state and federal “collateral consequences” in the United States. These “hidden costs” of criminal convictions ar exactly what I was talking about when I wrote this on STRIFEBLOG in August:
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“You do the best you can, though, because you swore you would and because the outcome of a criminal case – regardless of whether a client goes to prison – frequently inflicts significant consequences on the lives and fortunes of not just your client but also your client’s family. A criminal conviction, the criminal record that follows it, and any collateral consequences from the conviction, e.g., loss of professional license, reduction in amount of VA disability compensation, termination of VA pension payments, deportation, denial of access to public housing and federal student aid, etc., can hurt and even destroy families.”

 

Collateral Consequences: Protecting Public Safety or Encouraging Recidivism

“Since most ex-offenders—millions of them—at some point will be released from custody and return to our communities, it is important that we do everything we can to encourage them to become productive, law-abiding members of society and that we not put too many impediments, in the form of excessive collateral consequences, in their way that will hinder their efforts.

“More attention must be paid to this issue to avoid these dangerous and counterproductive results. In a time of intense polarization, this is one of the few issues people can rally around and find common ground. If people are pushed into the corner and denied opportunities for gainful employment and a stable environment for too long, they will have little choice but to recidivate. It is not in anybody’s best interest to relegate the formally incarcerated to a backwater of second-class citizenship status.”

John Malcolm. Vice President, Institute for Constitutional Government, Heritage Foundation.

https://www.heritage.org/testimony/collateral-consequences-protecting-public-safety-or-encouraging-recidivism-0

*TITLE OF POST includes “48,000” in an effort to keep the message clear. Far too many of those 48,000 can shatter a family and thrust moms and dads and kids into homelessness but certainly not all of them.

UNDERSERVED: Marines are nearly ten times more likely to be excluded from VA services than their counterparts in the Air Force

“PROSE”: “the ordinary language people use in speaking or writing.” – Merriam Webster

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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, WTF? The VA has effectively decided that Marines are more than five times more “Dishonorable” than Airmen.

Here’s an excerpt from the following March 2016 report as accessed online 21 December 2018:
Swords to Plowshares, in conjunction with National Veterans Legal Services Program and the Veterans Legal Clinic at the Legal Services Center of Harvard Law School have published Underserved: How the VA Wrongfully Excludes Veterans with Bad Paper.

Complete report available at:

https://www.swords-to-plowshares.org/2016/03/30/underserved/

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

  • Marines are nearly ten times more likely to be excluded from VA services than their counterparts in the Air Force
  • Current era service members are excluded at higher rates than other eras– more than twice the rate for Vietnam Era veterans and nearly four times the rate for World War II Era veterans
  • Mental health and combat have little effect on eligibility
  • 3 out of 4 veterans with bad-paper discharges who served in combat and who have Post-Traumatic Stress Disorder are denied eligibility by the Board of Veterans’ Appeals

.  .  .

(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. . . .

https://www.swords-to-plowshares.org/2016/03/30/underserved/

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

Ali R. Tayyeb and Jennifer Greenburg (2017)
Paper (pdf)
https://watson.brown.edu/costsofwar/papers/2017/bad-papers-invisible-and-increasing-costs-war-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
https://iava.org/blogs/research-review-underserved-how-the-va-wrongfully-excludes￾veterans-with-bad-paper/

BAD PAPER UPDATE

Veterans may sue over discharges they say were result of untreated mental health problems

http://www.abajournal.com/news/article/veterans_may_sue_over_discharges_they_say_were_result_of_untreated_mental_h

My husband lost a limb in Afghanistan. Now, as his caregiver, I’m on the front lines.

Today’s opinion column by wounded warrior caregiver and USA Today contributor Ms. Sarah Verardo yanks the cover away from a national tragedy that the Trump Administration is working to fix.

The focus of her essay is those veterans – and their caregivers – who are deemed eligible for VA benefits. It does not extend to the tens of thousands of veterans who’ve been deemed ineligible for VA services due to “bad paper” discharges.

Although by law, Congress denies veterans’ services only to those “discharged under dishonorable conditions,” the VA has interpreted the intent of the law as excluding anyone with Dishonorable discharges as well as all veterans with Bad Conduct or OTH discharges, regardless of whether or not these latter discharges were related to any action understood as ‘dishonorable.’”

Ali R. Tayyeb and Jennifer Greenburg. “Bad Papers”: The Invisible and Increasing Costs of War for Excluded Veterans 6. Watson Institute of International and Public Affairs, Brown University. 20 June 2017 (citations omitted).

The following is excerpted from Ms. Verardo’s opinion piece in USA Today:

“Eight years ago, my husband stepped on an improvised explosive device in Afghanistan. He lost his left leg and much of his left arm, and barely survived. . . .

“As many as 5.5 million caregivers struggle to care for disabled veterans like my husband. These wounded warriors, especially catastrophically disabled, need round-the-clock assistance because they have a hard time completing the tasks associated with daily living — such as going to the bathroom or getting out of bed.

“In our case, my husband needs assistance to complete all his daily tasks, from dressing, to getting cleaned and ready, to planning the day. Every day, I am constantly thinking for two people.

Catastrophically wounded vets also require lots of medical care. In addition to his surgeries [119 of them], my husband has gone through years of speech, visual, physical and occupational therapy.

. . .

“The Department of Veterans Affairs offers caregivers support for coordinating these services as well as a stipend.

“Caregivers could receive $7,800 to $30,000 in any given year. To calculate caregiver stipends, the VA looks at a typical home health aide’s hourly wage in a veteran’s geographic location, as well as the number of hours of care that veteran needs. The VA caps the hours of care at 40 per week.

“That’s almost insulting. I am a caregiver every second of every day. One-fifth of caregivers report caring for their veterans 80 hours a week.

. . .
Fortunately, federal officials are beginning to take action. As part of the recently passed VA MISSION Act, Congress will expand caregiver support to all veterans — not just those injured after 9/11.

https://www.usatoday.com/story/opinion/voices/2018/12/05/veteran-caregivers-affairs-war-disability-afghanistan-va-column/2154728002/

 

FEATURE IMAGE accompanies this 5 December 2018 featured op-ed in USA Today. Caption: “Mike and Sarah Verardo in Charlotte, North Carolina, in November 2018.”