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NC veterans seek discharge status upgrades

UNC Law students work with veterans in Asheville on their discharge upgrade cases. [Courtesy of Tod Leaven/TNS}
September 30, 2020

Upon his death, John wants an American flag draped over his casket and then handed to his children. Of all the veterans’ benefits he has sought over the past five decades –tuition assistance, health care access, and disability benefits, it’s this gesture of an official military funeral he most desires.

John is 72 years old, Black, and a Vietnam War veteran.

He requested the USA Today Network only publicize his first name as he goes through a process familiar to many American veterans: a military discharge upgrade.

Upon leaving the military, John was given a less-than-honorable discharge that restricted his access to veteran services, both monetary and symbolic.

Living in North Carolina’s Piedmont region, John continues to fight to change his discharge status, one he feels was unfairly assigned during an era when racism, homophobia, and a lack of understanding around post-traumatic stress disorder (PTSD) clouded many discharge decisions.

“It’s about restoring my honor,” John said. “I want the flag for my son to see.”

North Carolina is home to around 700,000 veterans, the eighth largest population of former military members in any state. While most left the service with honorable discharges, thousands across the state and nation didn’t.

Last year, the Army received more than 1,900 applications from veterans pursuing a change to their discharges. A hundred applications came from North Carolina.

In recent years, more North Carolina lawyers and law students — from Asheville to Chapel Hill — have begun working with veterans to upgrade their statuses and help them gain benefits. A disproportionate number of veterans face mental health concerns and suicidal ideation. Now during COVID-19, advocates say their work has become more urgent as the pandemic has left veterans without health care benefits particularly vulnerable.

John’s discharge

Upon leaving the military, most servicemembers are assigned one of five discharges: honorable, general, other than honorable, bad conduct, or dishonorable. The last two statuses, reserved for those found guilty of criminal activity, are granted following court martial hearings. The top three discharges are considered administrative decisions, assigned by senior-ranking officers. Other than honorable, along with bad conduct and dishonorable discharges are informally known as “bad paper”.

Since 1980, around 5% of veterans have left the military receiving other than honorable discharges, and current rates of OTH discharges is now five times higher than during World War II.

John was drafted into the Army in 1968, at the peak of the Vietnam conflict. He spent a year in Southeast Asia, during which he was hit in the neck with rocket shrapnel while on duty in the jungles of South Vietnam.

One day, after he and a group of friends missed their unit roll call, John received his first Article 15 — a punishment for a minor infraction.

He said there was “a lot of friction” in his unit between Black and white soldiers and believed race had a role in his OTH discharge from the service in 1970.

“I think that’s when I got into the majority of my trouble is when I began to speak up about those racial things,” he said.

Though John left the Army 50 years ago, he still remembers the name of the First Sergeant who recommended his discharge. According to John’s military record, no superior considered John should’ve been awarded a Purple Heart or that he earned a Combat Infantrymen Badge for his injury on active duty. John’s record also included letters from members of his unit praising his military performance.

He thought about contesting the Army’s decision, but military personnel told him his discharge would be automatically upgraded once he returned home. This proved untrue.

Two years after John’s discharge, the Department of Defense commissioned a task force to investigate racial discrimination within the military justice system. It found that although the armed forces had been desegregated since 1948, “vestiges of discrimination remain in the military system.” The task force labeled the racial discrimination both “intentional and systematic.”

Applied and denied

After the Army, John briefly returned home to North Carolina before settling in New York City.

He applied to Veterans Affairs (VA) for college tuition assistance through the G.I. Bill, but never received a response. He applied for health benefits from the VA, many times, and never heard back either.

Though an OTH discharge bars veterans from receiving monetary benefits, John was still entitled to VA health care because he suffered from two presumptive conditions – diabetes and heart disease – both linked to exposure to Agent Orange, the infamous herbicide the United States used to clear Vietnamese jungles during the war.

For more than 40 years, a widespread misinterpretation of policy around discharges denied him and many others VA health care.

Released in March, Harvard Law School’s “Turned Away” report detailed how the VA incorrectly denied health care to eligible veterans with bad paper. Denials are rooted in language confusion: The VA and the military have different definitions for what is honorable and dishonorable, which are the linchpins for determining benefit eligibility.

The report concluded the “VA routinely denies potentially eligible veterans their right to apply for and receive critical health care benefits to which they may be entitled.”

In the mid 1980s, long having realized his discharge status would not be automatically upgraded, John applied on his own to change his other-than-honorable discharge. The Army denied his request.

Nearly four decades later, John retired and moved back to North Carolina. A few years ago, he decided to try once more to upgrade his discharge status. He was aging and wanted his children, who both live in North Carolina, to receive a military-issued flag upon his death.

Unlike his first attempt at a discharge upgrade, John would have help this time.

From soldier to veteran advocate

In the mid-2000s, as his clients returned from the battlefields of Iraq and Afghanistan, John Brooker, an Army lawyer from Durham, realized he was defending soldiers whose misconduct often stemmed from a mental health condition known as PTSD. He saw soldiers self-medicate with drugs and alcohol to handle the psychological toll the war had wrought. At the time, he didn’t understand the complexities of PTSD but feared those who might lose VA health care access if they ended up with bad paper.

In 2018, Brooker left his 20-year career with the Army to join the University of Chapel Hill School of Law faculty. There, he headed the school’s Military and Veterans Law Clinic, overseeing students as they help upgrade veterans’ discharge statuses.

Brooker estimated the clinic works on several dozen discharge upgrade cases a year, all pro-bono. The clinic turns away dozens more each year.

“There are so many North Carolinians in this boat,” he said.

Elsewhere in the state, the Wake Forest School of Law runs a pro-bono Veterans Legal Clinic. In June, North Carolina Central University in Winston-Salem announced it will partner with UNC to restart its veterans’ clinic. Nonprofits in Raleigh and Charlotte also handle upgrade cases.

Every March, UNC Law students travel west to Asheville to spend their spring breaks aiding Western North Carolina veterans prepare their cases.

In Asheville, the students work alongside Tod Leavan, a local lawyer and Army veteran. The city, he said, has become a destination for homeless veterans, draw by a highly rated VA hospital and services like the Asheville Buncombe Community Christian Ministry’s Veterans Restoration Quarters, which provides veterans shelter.

“For most homeless vets, one of the main reasons why they’re homeless is because of their need of mental health treatment,” Leaven said. “They can’t get a job and they have no health care and it’s due to a bad paper discharge.”

Why they seek upgrades

The most common argument for military discharge upgrades is society’s past misunderstanding of mental health. Brooker pointed out the term “post-traumatic stress disorder” wasn’t included in the American Psychiatric Association manual until 1980, five years after the Vietnam War ended.

“Only in the last five to 10 years, is when the commanders have really understood how post-traumatic stress can impact behaviors such as self-medication or someone abusing drugs or alcohol to avoid the symptoms,” he said. “If they absented themselves from their unit, they’re perhaps trying to avoid the stressors. PTSD often isn’t a complete defense, but it explains it to an extent. It mitigates it.”

The “Turned Away” report found Marines diagnosed with PTSD were 11 times more likely to receive discharges for misconduct and eight times more likely to face discharges for drug and alcohol use. The Government Accountability Office (GAO) determined more than 60% of those discharged for misconduct from 2011 to 2015 were diagnosed with mental health conditions.

Service members who suffered Military Sexual Trauma, or MST, experience PTSD at higher risks.

The UNC law students also work with clients like John who feel racial injustices played a key role in deciding their discharge status. A 2017 study found Black servicemembers in the Army were 61% more likely to experience court martial than their white counterparts.

Veterans discharged for their sexual orientation before and during the “Don’t Ask, Don’t Tell” policy – which banned people who were openly gay, lesbian, or bisexual from serving – also seek discharge upgrades, though the military provides a simpler process for veterans who were removed for their sexual orientation.

But upgrading one’s status can be a challenge. In 2018, less than 15% of upgrade applicants were successful in the Army, Navy and Air Force. Discharge review boards – a panel of three military judges – can take up to two years to rule on each case.

Only a few applicants ever receive outside legal assistance.

Urgent need during COVID

To earn upgrades, the UNC team must prove servicemembers’ original discharge statuses are no longer fair. As they compile records, draft briefs, and make arguments towards obtaining upgrades, they also help these veterans who have improperly been denied health care benefits for years.

Across the United States, there are more than 1,200 Veterans Health Administration facilities. Each year, nine million veterans used VA health care services.

On average, 17 American veterans commit suicide each day. While veterans make up less than one-half of one percent of the U.S. population, they comprise more than 13% of all suicides. This year, advocates say securing health care has become even more paramount for aging veterans.

“We have a generation of folks trying to get discharge upgrades, to get their foot in the door to get health care,” Brooker said of Vietnam War veterans. “And because COVID’s aggravating conditions happen to match perfectly with the health problems that were caused during Vietnam, they are more susceptible to bad outcomes with COVID.”

In July, the U.S. House’s Committee on Veterans’ Affairs held a hearing on military discharge upgrades and veterans’ health care access. Representatives called on the VA to enhance staff training to ensure all eligible veterans received health care. Several committee members also questioned why the rate of bad paper discharges is rising.

“It’s no exaggeration to say that VA healthcare is life-saving for veterans,” said U.S. Rep. Mark Takano, D-California. “And that’s why we can’t tolerate the exclusion of veterans like our Marines with PTSD, Black service members, or MST survivors.”

In her remarks to the House Committee, Veterans Benefits Administration Deputy Executive Director Laurine Carson said certain details behind less-than-honorable discharges could prevent the VA from providing health care, like if the servicemember was court-martialed. She said the VA considers each applicant individually and still provides health care services for veterans experiencing military-linked health problems, regardless of their discharge statuses.

As for how veterans receive their initial discharge statuses, Carson said the “VA is looking to improve the charter of discharge process through regulation.” She added the VA intends new standards of discharge “will be fair and equitable while still providing the military tools necessary to enforce good order and discipline”

Can’t do it alone

In all the years between his two attempts at earning a discharge upgrade, John said he never gave up trying. A few years ago, he went online and called the Wake Forest Law clinic, which referred him to UNC. Once John connected with Brooker and a team of law students, he was finally able to make headway on his upgrade.

Brooker contacted senior VA personnel and in a matter of months, the health care John waited five decades for was finally made available to him. He now speaks with VA health professionals twice a week and has prescriptions delivered to his door.

“You can’t do it alone,” John said. “This is important. You need a Mr. Brooker to get in the door.”

Yet gaining health care access was never John’s primary goal. In order to get the official military funeral, with a ceremonial flag for his children, John must have his other-than-honorable discharge upgraded.

Last September, students at the UNC clinic filed John’s upgrade application. A panel of three senior-ranking Army employees will make a ruling, reviewing the circumstances around his Article-15 infractions, his combat service, and his life since.

John awaits their decision.


© 2020 Gaston Gazette