When young men and women enlist in the military, more often than not they aspire to successfully complete one or more enlistments while developing the skills and knowledge for a strong foundation and a successful future in either the military or another career. Tragically, like many things in life, these aspirations may not become reality. In certain situations, mental health conditions, traumatic brain injuries and sexual assaults in the military cause these veterans to behave in a way that result in receiving a “bad paper” discharge.
Bad paper is essentially a discharge that is any discharge other than “honorable” or “general under honorable conditions.” Thus, bad paper includes other than honorable discharges (OTH), bad conduct discharges and dishonorable discharges. In the eyes of the military and many providers who treat service members, these individuals are not even considered veterans.
The result is that men and women who often valiantly risked their lives and sacrificed time with their family are left with nothing but the emotional and physical scars of their service. For many years, two major myths were perpetuated. The first myth is that an OTH discharge is automatically upgraded within six months of discharge. This often results in service members agreeing to be discharged with bad paper rather than engage in lengthy legal proceeding in hopes of obtaining a more favorable discharge. However, discharges are not—and never have been—automatically upgraded after six months. The second myth is that service members with OTH discharges are categorically not entitled to health benefits or treatment at a Veterans Affairs (VA) Medical Center. However, some OTH veterans are in fact entitled to VA health care, but VA rarely makes such health care available to them. Instead, when those with OTH discharges apply for healthcare benefits, they are routinely turned away and told to apply for a discharge upgrade through the Department of Defense.
While service members are able to apply for a discharge upgrade, doing so is a daunting and complicated process. Often, veterans are unrepresented by counsel and thus completely unaware of the complexities of the process. For instance, there are two entities that make discharge upgrade decisions, a Decision Review Board and the Board for Correction of Military Records. The path a service member takes to upgrade their discharge depends on a variety of complicated factors. Regardless of the path chosen, veterans are expected to navigate myriad bureaucracies and collect an inordinate amount of documentation that comports with the legal requirements needed to upgrade their discharge. This is all but impossible for those who may be suffering from the physical and emotional scars of a traumatic enlistment. Historically, the odds of having a discharge successfully upgraded in front of either entity were dismal. In fact, the DOD does not readily share the rate of successful discharge upgrades, but anecdotally the denial rate has been estimated at over 90 percent.
In response to these statistics and a class-action lawsuit brought by Vietnam Veterans of America, the DOD issued new guidance intended to make it easier for Vietnam veterans to obtain discharge upgrades. The memo was issued in 2014 by then-Secretary of Defense Chuck Hagel. It required that both discharge review boards give “liberal and special consideration” to individuals who argue that their discharge was a result of Post-Traumatic Stress Disorder (PTSD) or another mental health condition, a traumatic brain injury (TBI), sexual assault or harassment.
Following the Hagel Memo, the Carson Memo was released in 2016. This memo provided the boards with even more guidance on how to approach service members who are either newly applying for an upgrade or who have been previously denied. The memo mandates fairness and equity by waiving certain time limitations and allowing for de novo review. Congress codified both memos into law 10 U.S. Code Section 1553. Most recently, the Kurta Memo was released in 2017 which broadened the types of evidence a service member can submit and what the boards must consider. Now, in addition to “liberal and special consideration” the boards must also sympathetically review the circumstances surrounding a discharge, including discharges based on substance abuse. They must recognize that, unfortunately, in the wake of combat or other types of military trauma, many veterans have turned to drugs or alcohol to numb their symptoms, the result being an OTH discharge.
This monumental shift in the law has dramatically changed the lives of many service members. These men and women who have historically been denigrated to the lowest place in society now have the opportunity to tell their story and obtain the services and benefits they deserve, desire, and need. The change has impacted young and old veterans alike.
Take, for example, the case of a Vietnam veteran who entered into active duty in the Marines at the age of 17. This veteran was stationed in Da Nang, Vietnam for over a year where he was regularly exposed to the horrors of war, including the torture and burning of a fellow Marine and friend. The veteran was also subject to rampant abuse, fueled by racism, from his superiors and fellow service members. During his deployment, he began fully experiencing the effects of PTSD and was discharged in 1970 with an “OTH.” After his discharge, he was denied all forms of VA benefits even though he was diagnosed with PTSD by multiple non-VA mental health providers. He began seeking VA benefits as far back as 1970, and continued to do so despite countless denials, unsuccessful appeals and an essentially meaningless “paper” upgrade by Presidential Proclamation in 1974 that did not confer any benefits. Finally, in September 2014, the tide began to change for the veteran. Shortly after the Hagel Memo was released, the veteran and I began the process of reapplying for a discharge upgrade. After two years of advocacy, the veteran was granted an upgrade and became instantly eligible for VA health care services. He was also awarded service-connected compensation for his PTSD.
Initially, the memos were designed to focus primarily on Vietnam veterans due to the astonishingly low rate of discharge upgrades for these veterans. However, the memos have been successfully applied to younger veterans as well. Recently, I was able to obtain a discharge upgrade and 100-percent service-connected benefits for a young Operation Iraqi Freedom (OIF) combat veteran. The veteran entered active duty in 2007 and was almost immediately deployed to Iraq, where he participated in combat operations. While deployed, he sustained multiple injuries, including a traumatic brain injury after a series of blasts that killed many of his close friends. During this time, the veteran received several decorations and medals. However, he also began suffering from physical pain, memory loss, and confusion as a result of the TBI and PTSD. While he was in the process of being medically discharged in 2011, the Air Force instead discharged him with an OTH because he provided pain medication to a fellow soldier who was also suffering. The VA then denied him medical treatment, housing and compensation for years. The release of the Hagel Memo enabled me to successfully secure an upgrade and ultimately service-connected benefits for the veteran.
This changing landscape has already improved the lives of so many veterans who have previously been relegated to a life of homelessness and poverty. Those that were once left with the stigma of “bad paper” and essentially no viable recourse are now able to rebuild their lives with the help of the VA. For the first time, they are also able to call themselves veterans without the gnawing feeling that their country sees them as something less than the heroes they truly are.
Neha Y. Chiaramonte is a staff attorney and Duffy Fellow at the Homeless Advocacy Project where she has worked since 2014. She primarily represents homeless veterans on their claims and appeals for VA benefits, and supervises pro bono attorneys who volunteer to represent homeless veterans.