EFFECTIVELY REPRESENTING THE VETERAN CLIENT: LEGAL AND CULTURAL BASICS Presented by the American Bar Association Health Law Section, Standing Committee on Legal Assistance for Military Personnel and Center for Professional Development
American Bar Association Center for Professional Development 321 North Clark Street, Suite 1900 Chicago, IL 60654-7598 www.americanbar.org 800.285.2221 Submit a Question Visit https://americanbar.qualtrics.com/se/?sid=sv_2ub91twxeymw6fl&pcode=code to submit a question on the content of this course to program faculty. We ll route your question to a faculty member or qualified commentator in 2 business days. The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of the American Bar Association Business Health Law Section, Standing Committee on Legal Assistance for Military Personnel or Center for Professional Development unless adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only. 2016 American Bar Association. All rights reserved. This publication accompanies the audio program entitled Effectively Representing the Veteran Client: Legal and Cultural Basics broadcast on August 15, 2016 (event code: CE1608FSS).
Welcome Effectively Representing the Veteran Client: Legal and Cultural Basics Linda Klein, President-elect, American Bar Association, Senior Managing Shareholder, Baker Donelson Kirtland C. Marsh, Trial Attorney, U.S. Department of Justice, Narcotic and Dangerous Drug Section Criminal Division Leo Flor, Veterans and Human Services Levy Renewal Manager, King County, Department of Community and Human Services Jason T. Vail, Chief Counsel, ABA Standing Committee on Legal Assistance for Military Personnel, American Bar Association Register for more FREE CLE www.americanbar.org/cle/free_cle.html Effective Representation of the Veteran Client: Legal & Cultural Basics ABA Free CLE Series August 15, 2016 Presented by: Leo Flor Kirtland Marsh
Remember the Apostrophe Why Veterans?
Why else? ROI Moment What makes a person a veteran?
Agenda Who is a Veteran? What is the VA? Best Practices Incarcerated Veteran Case Study: 3% to 18% Resources Intersections Vet Veterans Legal System Military Legal System
Who is a Veteran? Learn More: RepWaVets.org: http://www.repwavets.org/who-is-a-veteran.html Congressional Research Service: https://www.fas.org/sgp/crs/misc/r42324.pdf Swords to Plowshares: https://www.swords-toplowshares.org/sites/default/files/reference%20guide%20(february%2020 15).pdf Who is a Veteran? Social Definition vs. Statutory Definition Veteran Status = Qualifying Active Service + Non-disqualifying Discharge Experience Eligibility
Veteran = Qualifying Active Service + Non-disqualifying Discharge Qualifying Active Service can occur in the Active, Reserve, or Guard component of the five Armed Forces. 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 State programs. Duration requirements must also be satisfied. *Some benefits may also specify wartime or peacetime service.
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)) Veteran = Qualifying Active Service + Non-disqualifying Discharge A discharge may occur as the result of either: Administrative Separation (Medical, Misconduct, Conscientious Objection, End of Obligated Service, etc.) or Court-Martial Sentence ( Punitive Discharge = Bad-Conduct Discharge, Dishonorable Discharge, Dismissal (for officers))
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. 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
So What? Federal Veteran State Veteran Local Veteran 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
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)) Who is a Veteran? Washington: RCW 41.04.007 [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
Who is a Veteran? Washington: RCW 41.04.005 [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 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
Unique to WA? Veterans Assistance: For the assistance of military veterans, who served in the Armed Forces of the United States, whose last discharge from the service was honorable to be eligible for assistance 330 ILCS 45/2 Qualifying Active Service + Non-Disqualifying Discharge In IL: Qualifying Active Service + Non-Disqualifying Discharge Public Hiring Preference: preference shall be given to persons who have been members of the armed forces of the United States or who, while citizens of the US, were members of the armed forces of allies of the US in time of hostilities with a foreign county, and have served under one or more of the following conditions: 1. The veteran served a total of at least six months, or 2. The veteran served for the duration of hostilities regardless of the length of engagement, or 3. The veteran served in the theater of operations but was discharged on the basis of a hardship, or 4. The veteran was released from active duty because of a service connected disability and was honorably discharged 330 ILCS 55/1 Private Hiring Preference: Veteran means an individual who meets one or more of the following: 1. Has served on active duty with the armed forces of the United States for a period of more than 180 days and was discharged or released from active duty under conditions other than dishonorable; 2. Was discharged or released from active duty with the armed forces of the United States because of a service-connected disability; or 3. Is a member of the Illinois National Guard who has never been deployed but separated under conditions other than dishonorable as noted on the individual s NGB-22 discharge form 330 ILCS 56/10
Unique to WA? 980. (a) As used in this chapter, "veteran" means any of the following: (1) Any citizen of the United States who served in the active military, naval, or air service of the United States on or after April 6, 1917, and prior to November 12, 1918, and who received an honorable discharge or was released from active duty under honorable conditions. (2) Any person who did all of the following: (A) Served in the active military, naval, or air service of the United States for a period of not less than 90 consecutive days or was discharged from the service due to a serviceconnected disability within that 90-day period. (B) Received an honorable discharge or was released from active duty under honorable conditions. (C) Performed any portion of that service during any of the following periods: (i) On or after December 7, 1941, and prior to January 1, 1947, including, but not limited to, members of the Philippine Commonwealth Army, the Regular Scouts ("Old Scouts"), and the Special Philippine Scouts ("New Scouts"). (ii) On or after June 27, 1950, and prior to February 1, 1955. (iii) On or after February 28, 1961, and prior to August 5, 1964, in the case of a veteran who served in the Republic of Vietnam during that period. (iv) On or after August 5, 1964, and prior to May 8, 1975. (v) On or after August 2, 1990, to and including the date on which the territories in and around the Arabian Peninsula cease to be designated as a place where the armed forces of the United States are engaged in combat, as described in Executive Order 12744 of the President of the United States. It is the intent of the Legislature, in enacting this clause, that the benefits provided by this chapter shall be available to all veterans who were on active duty in the armed forces of the United States or who were called to active duty in the reserves or National Guard during the pendency of the deployment of forces for Operation Desert Shield or Desert Storm, which resulted in Executive Order 12744, irrespective of whether these veterans served overseas or in the United States. (vi) At any time, in a campaign or expedition for service in which a medal has been authorized by the government of the United States, regardless of the number of days served on active duty. (vii) At any time in Somalia, or in direct support of the troops in Somalia, including, but not limited to, persons stationed on ships of the United States armed forces conducting support activities offshore in the vicinity of Somalia, during Operation Restore Hope, regardless of the number of days served. (3) Any member of the reserves or National Guard who does all the following: (A) Is called to, and released from, active duty or active service, regardless of the number of days served. (B) Is called during any period when a presidential executive order specifies the United States is engaged in combat or homeland defense. (C) Has received an honorable discharge or was released from active duty or active service under honorable conditions. (4) Any person who did all of the following: (A) Served in the Merchant Marine Service of the United States. (B) Has been granted veteran status by the United States Secretary of Defense under Title IV of the GI Improvement Act of 1977 (Public Law 95-202, as amended). (5) Any person who qualifies under federal laws for revenue bond or unrestricted funds (26 U.S.C. Sec. 143) and did all of the following: (A) Served in the active military, naval, or air service of the United States for a period of not less than 90 consecutive days. (B) Received an honorable discharge or was released from active duty or active service under honorable conditions. (6) Any person who qualifies for funds made available from a qualified mortgage revenue bond issued pursuant to 26 U.S.C. Section 143 and is, at the time of application for Cal- Vet benefits, a member of the California National Guard or a reserve component of any branch of the United States armed forces who has enlisted or been commissioned in that service for a period of not less that six years and has completed a minimum of one year of satisfactory service. (b) For purposes of this chapter "veteran" does not include any of the following: (1) A person who was separated from the armed forces under other than honorable conditions. (2) A person who was separated from the armed forces on account of alienage. (3) A person who performed no military duty whatever or refused to wear the uniform. (4) A person who served only in an auxiliary or reserve component of the armed forces whose service therein did not provide an exemption from the operation of the Selective Training and Service Act of 1940 Qualifying (54 Stat. 885, as amended). Active Service (5) A person whose service with the armed forces was due to temporary active duty orders for the sole purpose of training duty, processing, or a physical examination, except as provided for in paragraph (6) of subdivision (a). + (6) A person whose only service Non-Disqualifying was as a student at a military academy and who, for any reason, Discharge failed to complete the course of study and subsequently did not serve on active duty. (c) For purposes of this section, "active duty" or "active service is defined as provided in 10 U.S.C. Section 101(d). Military and Veterans Code Section 980 So What? Interactions of Characterizations of Service and Selected Statutory Definitions of "Veteran" Selected Statutory Definintions of Veteran Characterizations of Service (COS) Active Duty Honorable NG or RES w/o Federal Activiation Administrative Active Duty General COSs NG or RES w/o Federal Activiation OTH Uncharacterized Special CM Bad Conduct Discharge Punitive COSs General CM Dishonorable Eligible Eligiblity Possible Ineligible 38 U.S.C. 101(2) RCW 41.04.005 RCW 41.04.007 RCW 73.08.005 (after 6/9/2016) WAR WAR Only possible w/ action by County Legislative Authority King County Veterans Levy Current Active Duty Service (including NG/RES with Federal Activation) WAR Current NG/RES Service (not Federally Activated) Note that this chart does not account for the effect of the Reason for Separation and Duration of Service, each of which may disqualify an otherwise eligible Characterization of Service. Live Issue: See Washington ESHB 1213 (2016)
What is your definition of veteran? Does that definition align with your values, mandates, and community needs? What is the VA? THE VA
What is the VA? The Federal VA or the State VA? What is the VA King County s Regional Veterans Initiative has identified at least 181 separate programs in King County for veterans at the Federal, State, Local, and Non-Profit levels.
Examples of Key Civil Legal Issues for Veterans Legal issues consistently make up 4 or 5 of homeless veterans top 10 unmet needs: Child Support, Relicensing, Foreclosure/Eviction, LFO/Warrants, & Discharge Upgrades. See VA s CHALLENG surveys. 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?
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 26.19.045 VA Disability & voluntary unemployment and underemployment ; RCW 26.19.071(6) Child Support & Incarceration VA Apportionments Drivers Licenses 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
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 Incarceration & Military Discharges Is conviction of a civilian crime (or a resulting condition of sentence) a breach of contract? If so: expect DOD Recoupment
Discharge Upgrade Discharge Review Board 15 year statute of limitations after discharge (non-waivable) Cannot consider discharges by General Court Martial Upgrade on basis of propriety, equity, or clemency Can upgrade all characterizations of service except dishonorable or BCD given by General CM Board for Correction of Military Records 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 characterizations of service Learn More: http://ctveteranslegal.org/resources/ Alternatives to Discharge Upgrade under conditions other than dishonorable. 38 USC 101(2) Prior periods of service VA Character of Service Determinations
Best Practices Best Practices: AVOID ASKING, ARE YOU A VETERAN? So what should you ask? Have you ever served in & been discharged from the Active Duty, Reserve, or National Guard component of the U.S. Army, Navy, Air Force, Marines, or Coast Guard? Case Study: 3% to 18%
Best Practices: BE MINDFUL OF VETERANS DIVERSITY: - duration, nature, and recency of service - drafted vs. volunteer veterans - retired, medically retired, or separated Best Practices: 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?
Best Practices: 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) - 1-800-273-8255 & press 1 ; http://www.veteranscrisisline.net/ Best Practices: BE CAREFUL WITH THANK YOU FOR YOUR SERVICE Most veterans would rather be heard than thanked.
Best Practices: HELP VETERANS UNDERSTAND THAT THEY MUST ADVOCATE FOR THEMSELVES Resources NVLSP Veterans Benefits Manual Patricia Roberts (William & Mary) Distribution List Crisis Line 1-800-273-8255 & press 1 ; http://www.veteranscrisisline.net/
Questions? Presented by: Leo Flor Kirtland Marsh Wait! Shouldn t veterans have an apostrophe? See Attributive Nouns
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