George Mason University Antonin Scalia Law School

The Military Needs To Go Beyond Its Current Reactive Approach to PTSD

Summer 2018 M-VETS Student-Advisor Maurice Hinton

The military and Congress have recently answered the bell in responding to current medical science in offering solutions for servicemembers and veterans that suffer from post-traumatic stress disorder (“PTSD”). Considering PTSD was not officially recognized until 1980 when the American Psychiatric Association added to its Diagnostic and Statistical Manual of Mental Disorders, some may consider the work of these institutions as an impressive feat.[1] But the question still remains have they done enough.  Recent studies show a correlation between people at risk for psychological health disorders with those who develop PTSD would suggest that they have not!

Recent progress has been made in addressing the problem of PTSD that plagues many servicemembers and veterans at almost epidemic proportions.  In 2011, 476,515 Veterans were treated at U.S. Department of Veterans Affairs (“VA”) facilities for a primary or secondary diagnosis of PTSD.[2]  Statistics provided by the National Center for PTSD show the large number of members of the combat veterans who have PTSD from the three most recent wars involving Americans on a large scale.  The Center reported the numbers for the veterans of the three major wars who developed PTSD:

  • Operations Iraqi Freedom (OIF) and Enduring Freedom (OEF): Between 11-20% have PTSD in a given year.
  • Gulf War (Desert Storm): About 12% have PTSD in a given year.
  • Vietnam War: About 15% were currently diagnosed with PTSD according to a study done in the late 1980s by the National Vietnam Veterans Readjustment Study (“NVVRS”) and estimates are that 30% of Vietnam Veterans have had PTSD in their lifetime.[3]

In addition to combat-related PTSD, servicemembers have also been known to develop PTSD from sexual trauma. In fact, the numbers for sexually-related PTSD are equally, if not more staggering than those for combat-related PTSD.  The National Center for PTSD reported the following figures for Veteran who use VA:

  • 23% of women reported sexual assault when in the military.
  • 55% of women and 38% of men experienced sexual harassment when in the military.[4]

As a result of these alarming numbers, Congress, as well as the military, responded with laws and policies to address the issue.

The developments addressing PTSD have come about fairly recently. Congress did not get around to passing a law to address diagnosing and treating Veterans until 1989.[5]  In 2010, the VA liberalized its regulation that governed PTSD by taking a lot of the record requirements for veterans who were trying to prove that they developed PTSD while in the service. But the regulation only affected a specific population of servicemembers, as the regulation required the PTSD stressor to be “related to fear of hostile military or terrorist activity.”[6]  Then in 2014, perhaps the most impactful regulations was when Secretary of Defense Chuck Hagel instituted what is known as the “Hagel Memo,” by which the military records boards must give “liberal consideration” to veterans seeking upgrade to the character of their discharge. The rule guides the reviews boards to use a PTSD diagnosis as a mitigating factor in the discharge of a servicemember due to misconduct.  An added bonus was that it applied retroactively.  In an even more aggressive move, the Department of Defense (“DOD”) issued guidance explaining the Hagel Memo with what is known as the “Kurta Memo.” The memo expanded the mental health conditions covered by the previous regulations to now include sexual assault and sexual harassment.  In the Memo, the DoD acknowledged that the invisible wounds of sexual assault, sexual harassment, and mental conditions that go untreated for many years can be amongst the hardest cases to review and as such are deserving of liberal consideration when evidence shows that PTSD played a role in whole or in part in contributing to the misconduct of a servicemember in serval respects.  The Kurta memo instructed boards to consider opinions of health care providers even if they were not VA providers and to allow for testimony from family, friends as well as the servicemember.  Congress followed suit by passing the Fairness for Veterans Act which required military boards to consider, amongst other thigs, medical evidence of PTSD in the discharge review process.

The results of the recent changes in laws and policies have certainly made a difference. An example of this improvement can be seen from the Army boards.  Since the Hagel Memo, discharge upgrades for the Army boards have risen from 3% in 2013 to 47% in 2017 and 67% for Veterans with a PTSD diagnosis.  Discharge upgrades overall have increased in 2017 for the Army, Navy, and Air Force as compared to compared to 2016.[7]

While these recent developments have gone a long way it can be argued that the DOD and VA still fall quite short and should do much more to assist servicemembers with PTSD. Professor Yu-Chu Shen of the Naval Postgraduate School led a study in which researchers determined that servicemembers with the “highest risk for psychological health disorders,” screened positive for depression 31% and for PTSD 27% of the time after returning from deployment. Professor Shen summed the findings in saying:

“[s]oldiers who had the worst pre-military psychological health attribute scores – those in the bottom 5% of scores – carried much higher odds of screening positive for depression and PTSD after returning home than the top 95%. Soldiers who score worst before deployment might be more susceptible to developing debilitating mental health disorders when they are later exposed to combat environments.”

Such results should certainly be cause for alarm and a wakeup call for the institutions.

The consequences could be grave if the above solutions are not considered and ultimately implemented. A proactive approach could even lessen the need for the current laws and policies that address PTSD after the fact.  Problems that ail the PTSD population of Veterans have proven to be quite severe.  These problems include homelessness, suicide, and at times violence against others.  With the stakes being so high, it is really imperative for lawmakers and policymakers in the military to give this area of need their attention.  Some of the solutions would not even require significant changes.  The current policies have already placed an onus on healthcare providers in the VA and as such have increased the overall number of them.

The fact is the military has already acknowledged certain factors that contribute to PTSD, such as, family turmoil and being deployed to a war zone. In discovering these problem areas, the military has acted aggressively in implementing policies that address the harm that such factors can create in terms of mental conditions such as PTSD.  Being that the military has shown a capacity to address these underlying, contributing or related factors, it must again put forth the same effort in working to cure the problem of helping servicemembers who have conditions that may predispose them to PTSD.



[3] Id.

[4] Id.

[5] Pub. L. No. 98-528

[6] 38 CFR 3.304§ 3.304(f)(3)

[7] VVA and NVCLR v. DoD, et. al.