January 16, 2021

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justice always right

Legal victory and false hope?

Veterans advocates recently celebrated the Veterans Legal Services Clinic at Yale Law School’s legal victory...

Veterans advocates recently celebrated the Veterans Legal Services Clinic at Yale Law School’s legal victory in a class action lawsuit against the Army. The lawsuit sought to rectify the Army board’s mishandling of discharge upgrade requests that involved mental health conditions. Under the proposed settlement agreement, the Army will reconsider thousands of discharge decisions involving mental health conditions to more fully evaluate whether a veteran’s mental health condition mitigates misconduct — and if it does, the Army will grant an upgrade to ”honorable.”

Hundreds of thousands of veterans have been kicked out of the military with an other-than-honorable discharge for misconduct when the misconduct is actually behavior consistent with a mental health condition related to post-traumatic stress disorder, traumatic brain injury, or sexual assault. Discarded by the military, these veterans are typically ineligible for benefits, including health care and education assistance. The suicide rate for these veterans without access to health care is “increasing at a greater rate” than the rate for veterans receiving care.

After discharge, veterans may seek access to benefits as well as recognition of their military service by requesting a “discharge upgrade” through a military discharge review board. Historically, most discharge upgrade applications are denied, leaving veterans with no recourse. In response to the historic resistance to discharge upgrades, the Department of Defense introduced “liberal consideration.” This policy requires discharge review boards to give a “reasonable opportunity” for relief to veterans suffering from invisible wounds by liberally considering how a mental health condition may mitigate behavior that was otherwise categorized as misconduct. I’ve criticized the boards’ failure to adequately implement liberal consideration, and I have not been alone in that criticism.

As a veteran and someone who studies the discharge review boards’ policies, procedures, and decisions, I have little faith that the agreement will be enough to effect requisite structural change toward restoring honor to veterans. Here are my concerns about the agreement.

It does not restore honor and respect to the veterans who served while dealing with a mental health condition related to their military service. And it does not do anything to repair the years-long loss of access to benefits, including critically needed health care, for thousands of deserving veterans.

It does not acknowledge wrongdoing nor offer an apology. In fact, it does the opposite: the settlement agreement explicitly states that the Army “expressly denied and continues to deny all charges of wrongdoing or liability.”

It does not address the structural and cultural reasons for the massive number of denied discharge upgrade requests. Board members are part of the military; they are deeply influenced by the military culture and ideals that value strength over weakness. The unique good-order-and-discipline based culture and mission-driven existence support the view that a mental health condition is a weakness, and there is no room for weakness. As high-functioning members of the military, board members reject the idea that a mental health condition could mitigate behavior, asserting that even with a documented mental health condition, the service member acted willfully. Given their respect for the chain of command, board members regularly deny upgrade requests by assuming that the military got it right the first time, refusing to second-guess original discharge decisions.

Under the settlement agreement, the board does not have to decide that a mental health condition excused a service member’s misconduct; it just has to do a better job of explaining the basis for denying relief. Furthermore, even though the Army committed to training board members, annual training is unlikely to change the deeply rooted historical resistance to granting upgrades, nor is it likely to change how board members think. A more robust training program is required to help board members disrupt their deeply-entrenched thought processes and patterns developed within the cultural military experience.

It does not explain how “honorable” service includes serving with mental health conditions. “Honorable” does not mean “flawless,” as explained in DoD’s liberal consideration guidance. Still, board members often focus on misconduct as categorically excluding the possibility of honorable service, even with a diagnosed mental health condition related to military service. The settlement agreement provides no direction for how to redefine “honorable” in a mental-health-condition-inclusive way.

There is one unquestionable positive in the agreement. The Army will implement a Telephonic Personal Appearance Board Program available to all veterans who request a personal hearing. This is long overdue, and the other boards should do the same. Even with lengthy decision times (Army: as long as 12 months; Navy: at least 12 months), an additional delay to have the opportunity to tell their stories will be worth the wait to veterans seeking an upgrade.

As a legal victory, the settlement agreement is only a starting point. Yes, the agreement will force the Army to reconsider discharge upgrade applications from a significant number of veterans in the defined class. And it may have a positive effect on the outcome of the clinic’s similar class action pending against the Navy. But without structural and cultural change in military views regarding mental health conditions and their effects on behavior, and a vastly altered — and inclusive — view of what “honorable” means, I fear the agreement is a false hope for justice.

Jessica Lynn Wherry is a professor at Georgetown Law and a U.S. Navy veteran.

Editor’s note: This is an Op-Ed and as such, the opinions expressed are those of the author. If you would like to respond, or have an editorial of your own you would like to submit, please contact Military Times managing editor Howard Altman, [email protected].