Veterans Legal Services and Discharge Upgrade Applications: New Models for Serving a Critical Need

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1 Veterans Legal Services and Discharge Upgrade Applications: New Models for Serving a Critical Need Coco Culhane, Veteran Advocacy Project at the Urban Justice Center, New York, NY William Hudson, Veterans Legal Services Clinic at Yale Law School, New Haven, CT Bethany Y. Li, Veterans Legal Services Clinic at Yale Law School, New Haven, CT Liam McGivern, Veteran Advocacy Project at Legal Services of Greater Miami, Inc, Miami, FL The veteran population is rapidly changing. In the next 30 years, the percentage of women veterans is projected to double, the minority population will comprise more than a third of all veterans, and a new generation of Gulf era veterans will find themselves aging and in need of support and healthcare. By highlighting the need for veterans legal services around the country, we hope to inspire and empower legal services offices to assist veterans in gaining access to benefits, healthcare, and discharge upgrades.

2 ABA / NLADA 2015 Equal Justice Conference Veterans Legal Services and Discharge Upgrade Applications Panelists: Coco Culhane, Urban Justice Center; Liam McGivern, Legal Services of Greater Miami, Inc.; V Prentice, Veterans Legal Services Clinic Moderator: Bethany Li, Veterans Legal Services Clinic Brief Description: Veterans are in serious need of legal services, yet many legal services offices have yet to explore the kind of work necessary to help veterans access benefits and healthcare. We will survey the landscape of legal needs in the veteran community, with a particular focus on discharge upgrades. Program Goals (what you will learn): 1. Participants will better understand the unique legal needs of the veteran population. 2. Participants will learn about major areas of veterans law practice, including discharge upgrades and service connection for disability compensation. 3. Participants will begin developing a toolkit to represent veterans seeking discharge upgrades. Overview 1. Why work with veterans? 2. Veterans legal needs 3. Applying for discharge upgrades 4. Structuring a veterans legal services practice Topical Outline 1. Why work with veterans? a. History of legal assistance to veterans i. For many years, work on behalf of veterans not province of lawyers ii. Assorted reasons for this lack of attorney involvement: 1. Department of Veterans Affairs (VA) pro-claimant structure 2. Civil War-era restrictions on attorneys fees for VA advocacy 3. Lack of judicial review for VA decisions until Substantively (specialized administrative procedure) and geographically (appeal hearings in DC) out of range

3 5. Anti-Vietnam War sentiment among legal service organization (LSO) founders? iii. Veterans Judicial Review Act of Establishment of the Court of Appeals of Veterans Claims (CAVC) 2. Easing of attorneys fee restrictions iv. LSOs and veterans today 1. In 2012, percentage of clients served who were veterans (4.5%) roughly equivalent to the percentage of veterans in the national population living in poverty (4.6%). 2. But, in the same year, veterans benefits work accounted for only.1% of the work done by LSOs nationwide 3. Those in most need, in many cases, are not yet eligible for benefits help. Need discharge upgrades first. 4. Bad paper discharges may reflect military problems and biases a. Racial discrimination (1972 DoD report) b. Stigmatization of mental health problems (e.g., PTSD) 5. Legal representation important in these processes a. Complicated forms and applications, some with strict statutes of limitations b. Many adjudicatory bodies have long escaped attention of lawyers, so a lot of decisions with no connection to any governing case law c. Need to request records, obtain medical evidence and diagnoses, get affidavits from fellow servicemembers or civilians, and prepare a persuasive brief. v. New guidance and a new need for legal advocacy 1. September 2014 PTSD Upgrade Memo by Secretary Hagel a. To DRBs and BCMRs re: how to consider applications from veterans with PTSD b. Liberal consideration to applications by veterans with PTSD c. Liberal consideration to PTSD diagnoses by civilian providers d. Special consideration to VA PTSD diagnoses 2. New guidance means new commitment to this issue and new chance for LSOs to make a difference in veterans lives b. Providing legal assistance to veterans

4 i. Bad paper discharges have bad effects 1. Discharge status and VA benefits a. Bad paper as a general bar to benefits including disability compensation, healthcare, pension, housing, and education benefits. b. See 38 C.F.R Personality disorder/adjustment disorder reason for discharge as a barrier to service connection for other mental disability 3. General stigma (personal, within family, with employers) ii. Affected population 1. Many discharged for misconduct related to mental health issues developed during service 2. Aging Vietnam vets population, but also issue with vets discharged more recently 3. Vietnam specific: a. 260,000 veterans received OTH discharges b. 30% of Vietnam-era veterans suffered from PTSD at some point c. PTSD not an available medical diagnosis until 1980 d. Racial disparities in discharges for similar misconduct e. Lack of social services and proper treatment over many years has exacerbated problems (e.g., substance abuse as coping mechanism where mental health care unavailable) 4. Recent conflicts a. 100,000 bad paper discharges in last decade b. Barriers even for veterans with general / honorable discharges i. Since 2001, 30,000 personality disorder discharges ii. Since 2008, increasing use of adjustment disorder discharges 2. Veterans legal needs a. Discharge Status Affects Access to Public Benefits i. Department of Veterans Affairs (VA) Benefits - Direct Link 1. Veteran Status 2. Compensation and Pension a. Combat injuries often lead to misconduct, misconduct leads to a bad discharge, and a bad discharge means no disability payments for combat injuries. 3. Healthcare including Mental Health and Substance Abuse Counseling a. Should still get healthcare for service-connected disabilities, but VA makes gaining eligibility difficult - often advocacy is needed. 4. Housing and Homelessness Programs a. HUD-VASH and Grant Per Diem

5 b. Healthcare for Homeless Veterans Clinics i. Social Workers ii. Doctors iii. Showers iv. Food v. Personal Care Items vi. Veteran Set-Aside Beds at Local Shelters vii. Stand Down Events c. Supportive Services for Veteran Families (SSVF) (Discussed in More Detail Below) 5. Vocational Rehabilitation a. Assistance in finding employment b. Education benefits 6. GI Bill Education Benefits 7. Caveats a. Prior Periods of Service b. Conditional Discharge c. VA Administrative Character of Service Determinations ii. Supportive Services for Veteran Families (SSVF) (Models Vary by Jurisdiction) 1. Ending Veteran Homelessness - Requires VA Eligibility 2. Housing Assistance a. First, Last, Deposit b. Arrears c. Utility Payments 3. Greatly Expanded Access to Legal Services a. Housing b. Child Support c. SSA d. Consumer e. Any Legal Need Affecting Housing Stability 4. Emergency Assistance iii. Social Security Administration - No Direct Link 1. Lack of Healthcare/Medical Records to Demonstrate Disability Due to No VA Healthcare 2. Special Application Process for Veterans Through VA Social Workers and SSA 3. VA Social Workers Help Shepherd Veterans through Application Process iv. Local and State Veterans Benefits (Often Tied to Both Veteran Status and Disability) 1. Some States Supplement VA Benefits 2. Transportation/Bus Passes 3. Tax Breaks 4. License Plates/Auto Licensing 5. Minor Benefits, Access to State Parks

6 b. Discharge Status May Hinder Employment i. Veteran Hiring Preferences 1. Both Government and Private 2. Honorable Discharge Required 3. Veterans Get Priority/Preference ii. Stigma iii. Unemployment Compensation c. Veterans Courts May Require Veteran Status 3. Applying for discharge upgrades a. DD214 i. Character of Discharge ii. Narrative Reason iii. Separation Code iv. Separation Authority v. Re-entry Code b. Types of Discharge & their Consequences on Benefits & Healthcare i. Administrative 1. Honorable 2. General 3. Other Than Honorable ii. Punitive 1. Bad Conduct Discharge 2. Dishonorable iii. (Entry Level Separation Uncharacterized) c. Upgrades & Advocacy i. Upgrades 1. Discharge Review Boards (DoDI , 10 USC 1553, 32 CFR 70.8, 70.9) a. What the board can do b. Standards of Review c. Statutes of limitations d. Board composition e. Form: Documentary Review & Personal Appearance 2. Boards for Review of Military/Naval Records (DoDI , 10 USC 1552) a. What the board can do b. Standards of Review c. Statutes of limitations d. Board composition e. Form: Documentary Review & Personal Appearance ii. VA Character of Discharge determination ( COD ) (38 CFR 3.12) 1. What is it? 2. Basis 3. Form

7 4. Structuring a veterans legal services practice a. Within an LSC-funded organization i. Expertise within LSC Organizations is Needed 1. LSC Organizations are on the Front Lines of the War on Poverty (or the War on the War on Poverty ) 2. Representation of Individual Veterans 3. Greater Awareness in Legal Community ii. LSGMI s Model 1. Like Any Other Area of Advocacy 2. Dedicated Project for Issues Facing Veterans 3. Emphasis on Outreach and Partnership with VA and Community Organizations a. Formal or Informal Partnership - LSGMI is Informal 4. SSVF 5. Fundraising iii. Fellowships b. As a pro bono project c. Within a law school clinic / in conjunction with a law school Notes:

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