Discharge Upgrades for Veterans with Mental Health Conditions

CCK Law: Our Vital Role in Veterans Law

Class-action Lawsuit

On Monday, two Army veterans filed a federal class-action lawsuit against the Army that seeks relief for the thousands of veterans of Iraq and Afghanistan who developed post-traumatic stress disorder (PTSD) and other mental health conditions during service and received unfair less-than-honorable discharges.  Many of these veterans go on to apply for discharge upgrades, but are then denied.  The plaintiffs are represented by Yale Law School’s Veterans Legal Services Clinic.

The lawsuit contends that the Army routinely failed to treat these soldiers’ serious mental health conditions and then gave them less-than-honorable discharges, often because of infractions related to the service members’ mental health illness. Last year, NPR reported that between 2009 and 2015, the Army separated over 22,000 combat soldiers for misconduct after they had received diagnoses for mental health problems or traumatic brain injury.

As a result, many of these veterans are left without the very services and benefits they need to get treatment and thrive in civilian life. Other Than Honorable or Bad Conduct Discharges (also known as “bad paper”) generally make veterans ineligible for education, housing, employment, disability, and burial benefits from the Department of Veterans Affairs (VA), and in many cases even healthcare. Bad paper can also make it difficult to find private employment and often subjects veterans to stigma and shame.

Discharge Upgrades and Correction Boards 

If a veteran feels he or she was other than honorably discharged for unfair reasons, he or she can file for a discharge upgrade at one of the Department of Defense’s Military Department Boards for Correction of Military/Naval Records (BCM/NRs) if his/her discharge was not issued by a sentence of a general courts-martial.

According to a report published by the Yale Veterans Legal Services Clinic, these Correction Boards have a dismal record when it comes to these types of cases, denying 95% of such applications in the past 15 years. Additionally, the New York Times reports that the federal government stopped sponsoring discharge-upgrade centers in the early 1980s, so veterans are stuck on waiting lists for years before they can find attorneys familiar with the process.

The Hagel Memorandum

In September of 2014, then Secretary of Defense Chuck Hagel issued a Memorandum that established guidelines for the Corrections Boards on deciding PTSD-related discharge upgrades. The so-called Hagel Memo stated that Corrections Boards should give “liberal consideration” to evidence that the veteran developed PTSD in service or to a PTSD diagnosis from a civilian doctor. The Memo also stipulated that the Corrections Boards should consider whether undiagnosed PTSD contributed to the misconduct that resulted in discharge, liberally waive time limits to consider these applications, and consult DoD mental health professionals to assess a veteran’s claim of PTSD

PTSD was not recognized as a diagnosis until 1980. So, until the Hagel Memo was issued in 2014, Vietnam veterans were especially vulnerable to being denied discharge upgrades as their PTSD went undiagnosed in service and for more than a decade after service.

Impact of the Hagel Memo

The Hagel Memo had an immediate impact. The overall grant rate for all veterans applying for PTSD-based discharge upgrades at the Army Board for the Correction of Military Records (ABCMR) has risen more than twelve-fold, from 3.7% in 2013 to 45% in 2016, according to Yale Law School’s Veterans Legal Services Clinic.

Impact on Post-9/11 Veterans

Unfortunately, the benefits of the Hagel Memo appear to primarily benefit Vietnam Era veterans rather than veterans of more recent wars. Vietnam veterans comprised a majority of PTSD-related discharge upgrade applications (67%) and also enjoyed a substantially higher grant rate (59%) compared to the general 45% grant rate for all applicants. Discharge upgrade applications submitted by veterans of Iraq and Afghanistan, on the other hand, were only granted at a 23% rate.

It should also be noted that, despite the “liberal consideration” encouraged, veterans without a diagnosis of PTSD or another mental health condition stand virtually no chance of receiving a discharge upgrade. The ABCMR approved 0% of applications by a veteran claiming to suffer PTSD but without medical records establishing that diagnosis.

Lack of Outreach from the DoD

In the Hagel Memo, the DoD prescribed an “outreach and messaging plan” for the Military Departments that asked them to reach out to veterans that might be eligible for PTSD-related discharge upgrades with details about how to apply and procedures for handling these types of cases. The Yale Veterans Clinic, however, notes that DoD has conducted little or no meaningful public outreach. Tens of thousands of eligible veterans appear not to have submitted applications.