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Military Law,
Legal Education

Jun. 3, 2021

Law school clinic helps injured vets

Two Army veterans, suffering from physical and mental injuries were discharged with less than honorable characterizations to their discharge. As a result, they were denied valuable veteran benefits they earned. The veterans’ case was filed as a nationwide class action by the Veterans Legal Services Clinic at Yale Law School.

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

In a former life, Justice Eileen Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal and the Cross of Gallantry with Palm. She is a member of Vietnam Veterans of America. Since 2008, she has chaired the Judicial Council' Veterans and Military Families Subcommittee. She is a member of the American Bar Association's Standing Committee on Armed Forces Law, is an advisor to the California Lawyers Association's Military and Veterans Committee and the Orange County Veterans & Military Committee as well as a founding member of USVets' Women's Advisory Committee. She is the author of two award-winning books, Race Results and Gender Results.

There is an ongoing debate about whether law schools should keep embracing the Socratic method of teaching, based on argumentative dialogue, or adopt and expand apprenticeship models. Since many law professors have never practiced law, and law schools don't tend to consider it an asset when they have, such changes involve problems of their own. Regardless of the answer to that tension, it cannot be denied that at least one law school clinic has helped veterans in a magnificent way. For over a decade, the law students in the clinic have been personally serving local veterans, as well as researching to assist veterans nationwide. Recently the clinic achieved a very beneficial result in a class action.

Two Army veterans, suffering from physical and mental injuries were discharged with less than honorable characterizations to their discharge. As a result, they were denied valuable veteran benefits they earned. The veterans' case was filed as a nationwide class action by the Veterans Legal Services Clinic at Yale Law School. On April 26, a federal district court in Connecticut granted approval of a settlement of the class action. The class consists of former service members suffering from Post-traumatic Stress Disorder, Traumatic Brain Injury, Military Sexual Trauma and related conditions resulting from their service.

Significance of Bad Paper

Any discharge under honorable conditions satisfies the character of discharge for basic eligibility for benefits from the VA. Stigma and shame are associated with less than honorable discharges, known as bad paper. During the past two decades, hundreds of thousands of veterans have received less than honorable discharges. Many of these discharges result from misconduct attributable to conditions sustained as a result of military service.

With bad paper, important benefits, such as education, health treatment, disability payments, VA loans, and vocational rehabilitation are denied veterans. Benefits are often critical to a veteran's ability to successfully launch into civilian life after serving in the military.

Another major consideration concerning bad paper is that there appears to be a strong connection between suicide prevention and access to VA services. The Department of Veterans Affairs issued a press release on September 15, 2017 involving suicide prevention. Its data revealed that the majority of veterans who committed suicide did not have VA services. A 2019 Military Law Review article states that only 30% of those who took their own lives received services through the VA. It can be reasonably inferred that discharge upgrades qualifying veterans to receive services from the VA, are imperative to prevent traumatized veterans from killing themselves.

Authority for Discharge Upgrades

About 70 years ago, Congress enacted 10 U.S.C. Section 1552. That statute permits the military services to correct any military record and to remove an injustice from the record. For decades after Vietnam vets came home, there were complaints about the rigid process used by the military in requests to upgrade discharges for veterans who were discharged for misconduct resulting from some unrecognized condition they sustained while serving. Thus, in 2014, the Secretary of Defense Chuck Hagel issued a memo providing supplementary guidance to the military branches. Known as the Hagel Memo, it states that "liberal consideration" will be given to petitions for changes in characterization of service when PTSD or related conditions are involved. As part of the 2017 National Defense Authorization Act, Pub. Law 114-328, Congress adopted Hagel's term, requiring that Discharge Review Boards review cases with "liberal consideration" to the former member if it involves PTSD, TBI or sexual trauma.

In 2019, the Secretary of the Army, James McConville, issued a major revision of the regulation governing the Army Discharge Review Board, Army Reg. 15-180, Section 3-4, Appendix B. The revision requires that Army Discharge Review Boards include a member who is a psychologist, psychiatrist or medical doctor with special training in mental health disorders when a discharge upgrade applicant has PTSD, TBI, or was sexually assaulted or sexually harassed, and give liberal consideration to the requests.

The Yale Veterans Legal Services Clinic

Established in 2010, the Veterans Legal Services Clinic is part of the Jerome N. Frank Legal Services Organization at Yale Law School. Students and faculty represent Connecticut veterans in litigation before administrative agencies and courts, on benefits, discharge upgrades, and other civil rights matters. In addition, students represent local and national organizations in state and federal policy advocacy relating to the legal needs of veterans.

In 2014, the clinic filed a proposed nationwide class action in the Connecticut federal district court. Conley Monk and other aging Vietnam combat veterans sued the secretaries of the Air Force, Army and Navy. To really understand the case, one must remember that Post-traumatic Stress Disorder, PTSD, was not a condition recognized by the medical community until the 1980s, years after the U.S. left Vietnam. The named veterans received less than honorable discharges after they were unable to perform their assigned military duties due to undiagnosed PTSD. The court remanded the cases to the record correction boards for each vet's respective branch of service, ordering the boards to make their decisions within 120 days. All five veterans had their discharges corrected and upgraded, and were able to then apply for veteran benefits.

The clinic's work assists veterans all over the country in many other ways. It provides research and data for lawyers nationwide to use in representing present and former service members. In February 2021, for example, it co-issued a white paper on the effects of herbicides, including Agent Orange, on troops who served in the Vietnam War while based in Guam. The clinic has also presented conferences on toxic burn pits, sexual assaults in the military, and bad paper. Working with Vietnam Veterans of America, the clinic exposed the military's violation of Department of Defense regulations that resulted in military personnel being discharged for supposed personality disorders when they actually suffered from PTSD or TBI, tarnishing them for their futures.

The Present Class Action

Veterans Legal Services Clinic at Yale Law School filed the present case in 2017, Kennedy and Carson v. Ryan D. McCarthy, Secretary of the Army.

The named plaintiffs are Steve Kennedy and Alicia Carson. Kennedy served in the Army for three years, including a deployment to Iraq. He received the Army Achievement Medal for heroism, and was promoted after taking over leadership of his team while the team leader was unavailable. He led a machine gun team on Humvees going through areas where improvised explosive devices were common in hundreds of missions. The missions involved disrupting al-Qaida in its supply lines, and there were several firefights. While in the service, he was self-isolating and self-injuring. He went AWOL and was discharged less than honorably. He returned home with undiagnosed PTSD and major depression. Carson deployed to Afghanistan, also as a gunner, taking part in more than 100 missions. Even though she was diagnosed with PTSD and TBI and had a doctor's note excusing her from drills, the Army National Guard discharged her less than honorably.

The action was filed on behalf of 50,000 less than honorably discharged Iraq and Afghanistan-era Army veterans with PTSD, TBI and other related conditions. The complaint alleged that since September 11, 2001, hundreds of thousands of veterans have received less than honorable discharges imposing a lifetime stigma, impairing their employment prospects and denying them access to critical governmental services, including GI Bill education benefits, mental health treatment and disability benefits. It also alleged that many bad paper discharges are a result of misconduct attributable to conditions like PTSD and TBI. The action charges the Army with a systematic failure to adequately consider mental health conditions when veterans request that their discharge status be upgraded.

The Settlement

A lawyer who helped the students told a reporter for the Connecticut Law Tribune that the Army has had a long-standing culture of not taking mental health conditions seriously. The lawyer suspected that no one in the past ever scrutinized the Army Discharge Review Board's records. Significant pre-settlement negotiations were necessary to demonstrate to the Army what its own records contained.

The settlement of Kennedy v. McCarthy applies to members and former members of the Army, Army Reserve and Army National Guard with PTSD-related conditions who served during the Iraq and Afghanistan era and received less than honorable discharges. It provides that the Army will review thousands of discharge records of those injured veterans, and automatically reconsider them.

In its review of the discharge records of those who separated from the Army after October 7, 2001, the Army is required to apply the recent more liberal guidelines established by the Hagel Memo, by Congress and by General McConville.

Other provisions of the settlement involve prevention of discharge inequities in the future. The Army agreed to change the procedures for how veterans apply to have their discharge status upgraded, and how its review board processes and reviews such cases. Further, the Army is now required to annually train its review board members on mental health issues.

Conclusion

After decades of fighting wars in foreign lands, America has a public health crisis at home among its former service members. The very least the military can do is to stop discharging its troops in a way that deprives them of the benefits they deserve and need for their health and their future. Veterans benefit when the legal profession steps up to the plate to help them take on giant institutions such as the military and the VA. That's where the volunteer lawyers and the law students at the Yale Veterans Legal Services Clinic come into play.

As a clinical professor of law, former Supreme Court Justice William O. Douglas once said: "Legal education plays an important role in socializing the next generation of lawyers, judges, and public policymakers. As gatekeepers to the profession, law schools have a unique opportunity and obligation to make access to justice a more central social priority." Yale Law School apparently took Justice Douglas's words as a call to action with its Veterans Legal Services Clinic. In helping veterans achieve their hard-earned benefits, it has done our country's veterans a tremendous service. Well done. 

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