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Military Law,
Law Practice,
Government

Dec. 6, 2021

Are we turning our back on our veterans... again?

It’s beginning to look a lot like bias / Everywhere you go / Take a look at Cal and the feds, not listening once again / Just like our country acted long ago

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.

It's beginning to look a lot like bias

Everywhere you go

Take a look at Cal and the feds, not listening once again

Just like our cou ntry acted long ago

Marine Nick Bernardino, president of the Veterans Alliance of Orange County, says appearing at Irvine City Council meetings makes him feel like he did when he returned from Vietnam. At those meetings, when he stands to discuss a veterans' cemetery, he is booed.

Even though I served as a combat nurse in Vietnam, I didn't recognize the full impact of how poorly we treated our Vietnam vets until long after that war. It was sometime in the 1990s that the local chapter of Vietnam Veterans of America asked me to speak at a special event at the Richard Nixon Presidential Library. Off to the side of the auditorium were three rows of pitiful looking men wearing tattered fatigues and looking lost. I thought to myself "homeless, self-medicated, PTSD." After I spoke, those men completely surrounded me. I can't remember if they even said anything. They just wanted to touch me. Some had a hand on my shoulder or back or arms. One stroked his pointer finger over and over the back of my hand. They didn't care that I was a judge. I realized those men had absolutely no good memories about Vietnam.... except the nurses. I remembered how during the war our soldiers would open their eyes after surgery and see an American girl standing over them. Their eyes filled with tears and they'd reach out to touch us, just to make sure we were really there. Even when we had to tell them they lost an arm or a leg or an eye, they'd always say something about home, about America. I heard "Charlie can't get me now; I'm goin' home" more than once.

But when they flew home, they were warned to change out of their uniforms before getting off the plane because they might run into groups hostile to the war. Many never told anyone they served. Later, of course, we saw some, and still see them, wandering along public streets, looking hopeless and lost.

Since Vietnam, we've learned that even when we hate a war, we can still love our warriors. At least I thought we learned that lesson. But maybe not.

Increasingly, I've seen signs America may be turning its back on those who served. I'll tell you about these signs, and you can decide for yourself.

federal

The Department of Veterans Affairs and Congress

Congress passed legislation in 2010 that provides benefits to caregivers of seriously injured combat veterans to help the caregivers provide the most effective care to those vets. 38 U.S.C. Section 1720G(a). But when the Department of Veterans Affairs passed the regulations to implement that statute, the VA adopted a rule that barred any appeal when it denied caregiver benefits. Then the VA proceeded to deny caregiver benefits across the country, even to veterans missing up to three limbs and veterans blinded in war.

One of the vets denied caregiver benefits is a Marine. He completed five combat tours in Iraq and Afghanistan and was medically discharged after he suffered multiple concussions resulting in traumatic brain injury that ultimately blinded him. He is 100% disabled. Jeremy Beaudette and his wife Maya were denied caregiver benefits by the VA.

Two California lawyers, Amanda Pertusati and Andy LeGolvan, took the Beaudettes' case. Last April, they obtained a ruling from the Court of Appeals for Veterans Claims. The CAVC certified a class action for all veterans who were denied caregiver benefits and not afforded the right to appeal. The CAVC also enjoined the secretary of the VA from denying review of future benefits decisions under the program.

Before the ink was dry on that injunction giving veterans and caregivers the right to appeal, two members of the House of Representatives introduced legislation to amend the caregiver statute. The bill of Reps. Mike Bost [R-Ill.] and Jack Bergman [R-Mich.] is to amend 38 U.S.C. Section 1720G(a) to say that the VA's caregiver denials "may not be appealed." Democrats also sit on the committee and they voted for the amendment as well. HR 4625 advanced out of the House Committee on Veterans' Affairs, chaired by Mark Takano [D- Calif.]. Who knows where the bill will end up.

The Department of Veterans Affairs and the court

It is unbelievable that the VA is still resisting providing veterans their benefits for diseases incurred as a result of exposure to Agent Orange in Vietnam. In 1989, veterans pursued a class action in federal district court. Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404 (N.D. Cal. May 3, 1989). Eventually, the case settled. Supposedly.

But Vietnam vets have had to go back to court many times over the years to seek help in making the VA comply with the settlement. A federal appeals court stated: "What is difficult for us to comprehend is why the Department of Veteran Affairs, having entered into a settlement agreement and agreed to a consent order some 16 years ago, continues to resist its implementation so vigorously, as well as to resist equally vigorously the payment of desperately needed benefits to Vietnam war veterans who fought for their country and suffered grievous injury as a result of our government's own conduct.... [O]ne thing is clear. Those young Americans who risked their lives in their country's service and are even today suffering greatly as a result are deserving of better treatment from the Department of Veterans Affairs than they are currently receiving. We would hope that this litigation will now end, that our government will now respect the legal obligations it undertook in the Consent Decree some 16 years ago, that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled." Nehmer v. U.S. Department of Veterans Affairs, 494 F.3d 846, 864-65 (9th Cir. 2007).

Sadly, navy vets had to take the VA back to court a year ago, and the case is still ongoing, a half century later. 2020 WL 6508529

California

Hiring veterans

At the California Assembly Labor and Employment Committee public hearing on June 22, 2021, Senate Bill 665 was discussed. The bill concerned preference for veterans by private employers -- a preference which is available in 40 other states and analogous to what public sector employers do in all 50 states and the federal government. It also provided that those who were discharged from the military due to their sexual orientation be considered as veterans for all purposes. It was introduced by Sen. Tom Umberg [D- Orange], a retired Army Colonel. The bill had bipartisan support, as well as the support of dozens of local, state and national veterans' organizations. Two persons spoke in opposition to the bill. Kevin Baker, director of governmental relations for the Americans Civil Liberties Union, said "it does not honor veterans to practice discrimination in their name, nor is it necessary to do so." He also said veterans don't need such protections "any more than Senator Umberg does." The second person who spoke in opposition was Jennifer Pizer of Lambda Legal, a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals and transgender people. She said women, transgender people and people living with a disability would be burdened by this bill. She added that those who served in the military tend to be male, white and not transgender and they don't need advantages.

And the opposition prevailed. Gov. Gavin Newsom returned SB 665 without his signature, explaining: "I am concerned that the veterans' preference policies that would be permitted by this legislation could negatively impact employment opportunities for women and other protected groups underrepresented among veterans, such as people with disabilities."

Diversion

Diversion is a way of providing treatment for some accused of crimes without any prosecution at all. The courts send those persons directly to programs. If they wash out, of course, they are prosecuted.

In recent years, the California Legislature has enacted two important diversion statutes. Penal Code Section 1001.36 permits diversion for mentally ill persons accused of a crime. The mentally ill are diverted for both felonies and misdemeanors.

The second recent diversion statute is found in Penal Code Section 1001.80. That is commonly known as military diversion. For some unknown reason, however, the Legislature has limited diversion for veterans to misdemeanors. Thus, veterans who commit felonies cannot be diverted, even if the crime was committed while suffering from an injury sustained while protecting this country.

Penal Code Section 1170.91

Section 1170.91 first came into effect in 2015. It mandates that judges sentencing veterans consider post-traumatic stress disorder, traumatic brain injury, sexual trauma and other conditions resulting from military service as a mitigating factor in the sentence. But that left out veterans who were in prison before the statute was enacted. To address that issue, as of, 2019, the statute was amended to permit incarcerated veterans to come back to court and ask for a lower sentence if they were sentenced prior to January 1, 2015.

The problem still wasn't solved, however, because there were veterans who were sentenced after January 1, 2015, but who had not been diagnosed with PTSD, TBI, etc. until after their sentencing. They were left out in the cold.

This problem was highlighted by two courts in People v. Valliant, 55 Cal. App. 5th 903 (2020). The Court of Appeal ended its opinion with a message to the Legislature: "While Valliant's position here may be unusual, we doubt it is unique. With that thought in mind, we invite the Legislature to revisit this issue and, if it believes it is appropriate to do so, to provide Valliant and any other veteran in a similar position, with statutory relief." And when the Supreme Court denied review, Justice Goodwin Liu took the unusual step of writing separately: "I agree with the Court of Appeal that it is unlikely the Legislature specifically intended this result."

In 2021, California Sen. Dave Min [D-Orange] introduced SB 763. Senator Min's bill eliminated the date in the statute and proposed it simply say that if the court had not already considered those conditions as a mitigating factor, the incarcerated veteran could come back to court and ask for a lower sentence.

That seemed simple enough. But the bill couldn't get passed Sen. Anthony Portantino's [Dem-Los Angeles] Appropriations Committee. Since the slight change in the statute would cost nothing, then why?

The courts

I'm not sure why there has been such a problem getting the word out to veterans accused of a crime that there are several statutes enacted just for their benefit. I suspect it has something to do with the business model of criminal defense firms. That is, they tend to charge by the number of appearances, such as three appearances for X dollars. But with Veterans Treatment Courts and diversion, since it takes a lot more time for a veteran to heal through therapy than it takes to plead guilty, there are more than the usual number of court appearances, which situation would require the charge to be X-plus dollars. Some think that private criminal defense lawyers don't want to lose business by having to quote higher charges for the increased number of court appearances required for therapy courts, so they simply don't inform veterans of the options available to them.

Because veterans were not being told of their options, the Legislature amended Penal Code Section 858, the arraignment statute that has been in effect since 1872. That amendment was an attempt to get the word to veterans in a few different ways.

First, it ordered the Judicial Council, the governing body for all California courts, to amend an existing form, MIL-100, created several years earlier by the Council's Veterans and Military Families subcommittee. The mandate was to revise the form to include information about the statutes passed for the benefit of veterans. The form was timely revised as of January 1, 2015, the same date the amendment went into effect.

Second, the amendment requires arraignment courts to inform the defendant there are certain provisions of law specifically designed for individuals who have active duty or veteran status. The courts are supposed to offer form MIL-100 to all persons arraigned, thus capturing all those who serve or previously served in the military.

To this day, many arraignment courts up and down California are ignoring those requirements at arraignments. As a consequence, many veterans are not being informed of statutes beneficial to them.

Conclusion

Our veterans come home with all sorts of wounds, visible and invisible. When, as now, some are turning their backs on veterans, they need others to step forward and help them. It's simply not enough to say "thanks for your service," and then forget about them. Lawyers are in an ideal position to help. The best part of the holiday season is being able to touch somebody's life. Please try to help a veteran. 

#365246


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