Low-Income & Justice-Involved Veterans:

Transcription

1 Low-Income & Justice-Involved Veterans: Key Civil Legal Concepts ABA LAMP March 12, 2015 Presented by: Leo Flor Equal Justice Works Fellow sponsored by Fenwick & West LLP and the Microsoft Corporation Hosted by Northwest Justice Project

2 Veterans Project Free civil legal aid to reduce barriers to employment, housing, and self-sufficiency for client-eligible veterans of all characterizations and durations of service.

3 Who We Are Northwest Justice Project is Washington s largest legal aid provider for low-income persons 17 offices statewide with more than 130 attorneys practicing across the spectrum of legal issues that impact our clients The Veterans Project is one NJP s specialized projects for specific populations or legal issues

4 In Washington Who We Serve Low Income Less than 200% of the Federal Poverty Guidelines (2015) $1,961/month for a household of 1 person $4,041/month for a household of 4 people Veteran Any Characterization of Service Any Armed Force Includes Reserves and National Guard Eligible Civil Legal Issue To Promote Employment, Housing, & Self- Sufficiency Targeted Outreach to Incarcerated, Treatment Court, and Women Vets

5 Child Support What We Do Discharge Upgrades Criminal Records Vacation Drivers License Reinstatements VA Overpayments Housing Issues Consumer Law What We Don t Do Criminal Law Initial Applications for Veterans Benefits Family Law (except Child Support)

6 Veterans Legal System Intersections Vet Military Legal System

7 Key Concepts Who is a Veteran? What is the VA? Key Civil Legal Issues for lowincome & Justice-Involved Veterans Resources in Washington Cultural Competence

8 Who is a Veteran?

9 Who is a Veteran? Social Definition vs. Statutory Definition Veteran Status = Qualifying Active Service + Non-disqualifying Discharge Experience Eligibility

10 Veteran = Qualifying Active Service + Non-disqualifying Discharge Qualifying Active Service can occur in the Active, Reserve, or Guard component of the five Armed Forces.

11 Veteran = Qualifying Active Service + Non-disqualifying Discharge Qualifying Active Service component: Active Duty Active Duty service, whether deployed or not, will satisfy a Qualifying Active Service requirement as long as it was of sufficient duration. Reserve Only activated federal service will qualify. Attendance at training events may not satisfy this requirement. Duration requirements must also be satisfied. Guard Only activated federal service qualifies for federal VA entitlement. State service may qualify for WDVA programs. Duration requirements must also be satisfied. *Some benefits may also specify wartime or peacetime service.

12 Veteran = Qualifying Active Service + Non-disqualifying Discharge A military discharge has two parts: Characterization of Service (Honorable, General Under Honorable, Other Than Honorable, Bad Conduct, Dishonorable, Uncharacterized) + Reason for Separation (Medical, Misconduct, Conscientious Objection, etc.) *See VA Statutory Bars (38 USC 5303(a)) & Regulatory Bars (38 CFR 3.12(d))

13 Veteran = Qualifying Active Service + Non-disqualifying Discharge The term discharge is commonly misused by veterans & advocates: I have a medical discharge. (conflates the Reason for Separation with the discharge) I got out with an honorable discharge. (conflates the COS with the discharge) Properly stated: I was discharged for medical disability with an honorable characterization of service. * Medical Discharge may also refer to the veteran s separation process.

14 Veteran = Qualifying Active Service + Non-disqualifying Discharge Finding the Reason for Separation & Characterization of Service on the DD 214: Reason for Separation Characterization of Service *Non-federal National Guard Service yields an NGB 22

15 So What? Federal Veteran State Veteran Local Veteran

16 Who is a Veteran? Federal Department of Veterans Affairs: 38 USC 101(2) The term veteran means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. Qualifying Active Service + Non-Disqualifying Discharge

17 Who is a Veteran? Federal Department of Veterans Affairs: 38 USC 101(2) The term veteran means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. Which combinations of Characterization of Service + Reason for Separation = under conditions other than dishonorable? *See VA Statutory Bars (38 USC 5303(a)) & Regulatory Bars (38 CFR 3.12(d))

18 Who is a Veteran? Washington: RCW [excerpted] "Veteran" includes every person who has received an honorable discharge or received a discharge for medical reasons with an honorable record and who has served [a]s a member in any branch of the armed forces of the United States, including the national guard and armed forces reserves, and has fulfilled his or her initial military service obligation; or [a]s a member of the armed forces reserves, national guard, or coast guard, and has been called into federal service by a presidential select reserve call up for at least one hundred eighty cumulative days; Qualifying Active Service + Non-Disqualifying Discharge

19 Who is a Veteran? Washington: RCW [excerpted] "veteran" includes every person, who at the time he or she seeks benefits has received an honorable discharge, is actively serving honorably, or received a discharge for physical reasons with an honorable record and who [has served during a defined period of war or has received the armed forces expeditionary medal, or marine corps and navy expeditionary medal]. Qualifying Active Service + Non-Disqualifying Discharge

20 So What? Active servicemembers are not Federal Veterans* but they may be State or Local Veterans. * But See VA Home Loan & Some GI Bill Variants

21 So What? Characterizations of Service Honorable General OTH Uncharacterized Special Court Martial Bad Conduct General Court Martial Dishonorable Federal Washington King County Veterans Levy Non-Profit 38 USC 101(2) RCW RCW NJP Currently Serving Not Disqualifying Possibly Disqualifying Disqualifying

22 What is the VA? THE VA

23 What is the VA? The Federal VA or the State VA?

24 What is the VA King County s Regional Veteran s Initiative has identified at least 181 separate programs in King County for veterans at the Federal, State, Local, and Non-Profit levels.

25 The Federal VA

26 Separated Veteran Pay: Pension Paid by DOD (DFAS) Paid by VA Military (Medical) Retirement Pay Military Retirement Medical Benefits Service- Connected Disability Compensation Non Service- Connected Pension Hybrid: Military (Medical) Retirement w/ Service Connected Disability What is subject to garnishment or assignment?

27 Key Civil Legal Issues for Low-Income & Justice-Involved Veterans

28 Child Support Does a support order set pre-separation remain realistic post-separation? Do multiple support orders recognize each other? Are VA Benefits income for child support purposes? RCW VA Disability & voluntary unemployment and underemployment; RCW (6) Child Support & Incarceration VA Apportionments Drivers Licenses

29 Incarceration & Federal VA Benefits >60 days post-conviction incarceration for a felony reduces VA Disability Compensation >60 days post-conviction incarceration for a misdemeanor or felony suspends VA Pension Work Release, Day Reporting, and EHM are not incarceration for VA purposes *Consult the Veteran Defendant Checklist

30 Incarceration & Federal VA Benefits Incarceration immaterial to GI Bill eligibility* No payment of non-tuition/fees to veteran No Montgomery GI Bill buy in refund for non-use Fleeing Felons lose ALL Federal VA Eligibility Overpayments 30 Days to Dispute & Request Continued Payment 180 Days for Waiver *Consult the Veteran Defendant Checklist

31 Incarceration & Military Discharges Is conviction of a civilian crime (or a resulting condition of sentence) a breach of contract? If so: expect DOD Recoupment

32 Discharge Upgrade Discharge Review Board 10 USC year statute of limitations after discharge (non-waivable) Cannot consider discharges by General Court Martial Upgrade on basis of propriety or equity Clemency (if by Special Court Martial) Can upgrade all COSs except dishonorable Board for Correction of Military Records 10 USC 1552 Must apply within 3 years of denial by DRB or discovering the error or injustice (waivable) Exhaustion is necessary Only option if discharged by general court-martial Upgrade on basis of error, injustice, or clemency Can upgrade all COSs

33 Alternatives to Discharge Upgrade under conditions other than dishonorable. 38 USC 101(2) Prior periods of service VA Character of Service Determinations

34 Resources in Washington State RepWaVets.org & Representing Washington Veterans Washington Law Help (WaLawHelp.org) CLEAR for <200% ( WSBA Moderate Means for 200%-400% (only certain types) Washington Attorney General's Military & Veteran Legal Resource Guide Swords to Ploughshares

35 Six Tips: Cultural Competence

36 # 1 AVOID ASKING, ARE YOU A VETERAN?

37 # 2 BE MINDFUL OF VETERANS DIVERSITY: - duration, nature, and recency of service - drafted vs. volunteer veterans - retired, medically retired, or separated

38 # 3 HAVE A PLAN FOR WAR STORIES: - constructively react to killing, death, racism, sexism, or homophobia empathize without excusing - see veterans actions through the lens of conditioning - Never ask, have you ever killed anyone?

39 # 4 TAKE SUICIDE SERIOUSLY: - 22 veterans commit suicide every day, on average - 7% of the population = 21% of national suicides (trained to use weapons + decisive = success) & press 1 ;

40 # 5 BE CAREFUL WITH THANK YOU FOR YOUR SERVICE Most veterans would rather be heard than thanked.

41 # 6 HELP VETERANS UNDERSTAND THAT THEY MUST ADVOCATE FOR THEMSELVES

42 Questions? Visit RepWaVets.org Presented by: Leo Flor Equal Justice Works Fellow sponsored by Fenwick & West LLP and the Microsoft Corporation Hosted by Northwest Justice Project

43 Wait! Shouldn t veterans have an apostrophe? See Attributive Nouns