Manker v. Spencer was recently filed in the Federal District Court for Connecticut.  It contains valuable information on those seeking an upgrade due to post-traumatic stress.

Main points:

News Update

On September 3, 2014, then-Secretary of Defense Chuck Hagel directed correction boards to give “special consideration” to PTSD diagnoses by the VA and “liberal consideration” to diagnoses of PTSD by civilian providers when adjudicating discharge upgrade applications submitted by veterans. 

Secretary Hagel issued a 3 September, 2014 memo.  In it, he directed military review boards to consider PTSD and “PTSD-related conditions” as “potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service.”  

In 2016 Congress codified parts of the Hagel Memo.  Discharge Review Boards are now statutorily required to grant “liberal consideration “to the discharge upgrade applications of veterans with symptoms related to PTSD or traumatic brain injury (TBI).  10 U.S.C.  §1553(d)(3)(A)(ii).   Boards must now review each case “with liberal consideration to the former member” claiming PTSD.

On 25 August 25, 2017, commenting “that clarifications are needed regarding mental health conditions,” Acting Under Secretary of Defense for Personnel and Readiness Anthony M.  Kurta issued additional guidance.   He stressed that “[l]iberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions.”

“Bad Paper” – Historical Context

Since 2001, more than 2.7 million U.S.  military personnel—including approximately one million sailors and Marines—have served on active duty in Iraq and Afghanistan.  Over half have deployed more than once. 

In that time, approximately 15 % of all service members have left the military with less-than-honorable discharges.   By contrast, only 7 % of Vietnam-Era veterans and less than 2 % of World War II-Era veterans received less-than-honorable discharges. 

 Hundreds of thousands of veterans with “bad paper” are thus generally ineligible for numerous earned benefits  —  compensation for service-connected disabilities, special unemployment compensation programs, military burial, and benefits for surviving family members.

• Veterans with a less-than-honorable discharge are categorically denied GI Bill education benefits and civil service retirement credits; they are generally denied veterans’ benefits provided by state and local governments.
• Without these benefits, veterans are unable to access the health care they need, must pay out of pocket for educational and vocational training opportunities, and are left largely without the support vital to ensuring a successful transition back into civilian life.
• Many employers reject applications from veterans with less-than-honorable discharges, even when those discharges are associated with only minor misconduct. 
• Employers regularly learn of an applicant’s discharge status through a routine background check or by requesting the veteran to submit a discharge certificate, DD-214.
• A derogatory narrative reason for separation, which appears with the discharge status on the veteran’s DD-214, can impose a similar or additional stigma.  For example, many less-than-honorably discharged veterans receive a damning reason for separation of “personality disorder “or “misconduct” without additional explanation.
•  “Bad paper” carries a stigma that casts doubt on a veteran’s personal character and ability to perform as civilian.

Many veterans with “bad paper” were discharged due to misconduct attributable to undiagnosed PTSD, TBI, or other related mental health conditions triggered as a result of their military service and/or military sexual trauma.

Troubling Data on PTSD

PTSD is a psychiatric disorder that can result from experiencing, witnessing, or confronting a traumatic event.  Events that lead to PTSD are frequently life-threatening.   PTSD is the most prevalent mental disorder arising from combat experience, and it is also frequently developed after sexual assault.  Its symptoms include flashbacks or nightmares relating to the traumatic event, avoidance of anything associated with the trauma, and hypervigilance, which often manifests in difficulty concentrating and irritability.

According to the VA, 11 % of Afghanistan veterans and 20 % of Iraq veterans suffer from PTSD.  Similarly, 10 % of Gulf War veterans and 31 % of all vets have PTSD.   Other researchers estimate that approximately 16 % of servicemembers experience such stress.  Victims with sexual assault histories are four times more likely to suffer from PTSD compared to other veterans.

Researchers have found that, among troops deployed to Iraq and Afghanistan, Marines with a diagnosis of PTSD were eleven times more likely to have a misconduct discharge compared to their peers who did not have a psychiatric diagnosis.

The GAO estimates that from 2011-2015, more than 57,000 servicemembers were separated from the military for misconduct despite a diagnosis of PTSD, TBI, or another mental health condition that could be associated with misconduct.  This amounts to 62 % of all servicemembers separated for misconduct during the same period.  See Government Accountability Office, DOD Health: Actions Needed to Ensure Post-Traumatic Stress Disorder and Traumatic Brain Injury Are Considered in Misconduct Separations, GAO-17-260 (May 2017) (“GAO Report”), available athttps://www.gao.gov/assets/690/6

Rates of Relief

According to records released by the DOD in a Freedom of Information Act lawsuit, since January 2016, the BCNR granted discharge upgrades in just 15% of cases in which PTSD was alleged to have been a contributing factor.

By contrast, in the same period and subject to the same legal regime, the Army granted discharge upgrades in 45% of such cases, and the Air Force granted discharge upgrades in 37 %.

A GREAT WORLD WAR II READ.   As reported by skilled author

James Benn ––

• About 40% of all crimes in the Army in 1944-19 45 were related to the theft of materiel. 
• Some got rich on the black market in England.  The rate for a single can of coffee in 1944 was $10 — equal to $140 in 2014 dollars.  A crate holding 50 cartons of cigarettes went for $1000, equivalent to $13,500 in today’s dollars.
• About 39 British female agents were sent into occupied France.   Some 14 were executed.
• Hitler issued an infamous Death Order – Allied commandos faced execution if captured.   Approximately 80 died as a result of this directive.

GOLDEN OLDIES.   My mother knew very little about the military.   So when I became an Air Force judge advocate, I would explain things to her, including the different forms of discharge from the service.

My mom was a quick learner– sort of.   When visiting me at an installation in Texas, she came upon a row of pictures showing the chain of command.  Typically, it began with the Secretary of Defense [”the Honorable Donald. Rumsfeld”] then went through civilian senior leadership, ending with military commanders…

“It’s pretty clear how these discharges work,” my mom commented.  “Look at these civilians.   They have honorable discharges…but the men in military uniforms have poor records – each has the name general under his picture!”