George Mason University Antonin Scalia Law School

Preserving the Honor of United States Armed Forces’ Awards and Decorations: The Stolen Valor Act

By Summer 2019 M-VETS Student-Advisor Lillia J. Damalouji

Stolen valor, or the act of falsely claiming military service or displaying falsely-earned military decorations, medals, or badges, is an extensive problem throughout the United States that has sparked a myriad of governmental responses. In a year-long nationwide operation jointly conducted by the Department of Justice and Department of Veteran’s Affairs (“VA”) entitled “Operation Stolen Valor”, investigators uncovered over $1.4 million in fraudulent VA claims made in the Northwest Region alone.[1] Throughout the United States, this number is likely much higher. Also called the “phony war hero phenomenon,”[2] stolen valor is not only costing the United States millions of dollars in fraudulently-claimed benefits, but is also tarnishing the prestige of these decorations for the countless servicemembers who rightfully earned them.

In attempt to combat this abuse, Congress enacted the Stolen Valor Act of 2005, which penalized those who displayed unearned medals and badges.[3] The Stolen Valor Act, signed into law by President George H.W. Bush “amends the federal criminal code to expand the prohibition against wearing, manufacturing, or selling military decorations or medals without legal authorization”[4] and “prohibits falsely representing oneself as having been awarded any decoration or medal authorized by Congress for the Armed Forces or any of the service medals or badges” [5] in § 704(a). Under this Act, one who fraudulently represented the receipt of military decorations or honors was subject to either a fine or imprisonment for up to six months, or both in § 704(b).[6] One who fraudulently represented the receipt of a Congressional medal of honor, a distinguished-service cross, a Navy cross, an Air Force cross, a silver star, a Purple Heart, or a combat badge was subject to either a fine or imprisonment for up to one year, or both.[7]

Fraudulent Representations about Receipt of Military Decorations Held Unconstitutional

While this act attempted to protect the reputation of these decorations, it was met with claims of unconstitutionality under the First Amendment right to the freedom of speech. In United States v. Alvarez, Xavier Alvarez lied in announcing that he was a retired marine who earned the Congressional Medal of Honor and was, in turn, indicted under the Stolen Valor Act of 2005.[8] On appeal, the United States Courts of Appeal for the Ninth Circuit found the Act invalid under the First Amendment and reversed Alvarez’s conviction.[9] The Ninth Circuit, in C.J. Kozinski’s concurrence in the denial of rehearing en banc, suggested that “without robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship.”[10]

During this same time, the United States Courts of Appeal for the Tenth Circuit found the Stolen Valor Act of 2005 constitutional in its United States v. Strandlof opinion. In the aforementioned case, Strandlof was indicted under the Stolen Valor Act for claiming to have received a Purple Heart and Silver Star while serving in the Iraq War.[11] In a lengthy analysis that explored over 50 years of Supreme Court history, this court held that the Stolen Valor Act was facially constitutional and, in accordance with Supreme Court precedence, reasoned that “the Act prohibits only knowingly false statements of fact, it provides breathing space for valuable speech, and it reaches no farther than is necessary to protect the legitimate interest involved.”[12] Judge Tymkovich, in his opinion, outrightly disagreed with the Ninth Circuit’s holding in United States v. Alvarez, reasoning that contrary to the Ninth Circuit’s opinion, upholding the Stolen Valor Act would not “lead America down a slippery slope where Congress could criminalize an appallingly wide swath of ironic, dramatic, diplomatic and otherwise polite speech.”[13]

United States v. Alvarez, on certiorari with the United States Supreme Court, ultimately resolved this Circuit split, holding that the Stolen Valor Act of 2005 was an unconstitutional abridgement of the freedom of speech under the First Amendment. This holding was rendered on the grounds that the Act did not satisfy the “exacting scrutiny” approach when the Court assessed content-based restrictions on free speech.[14] Put simply, no clear showing of the necessity of the Act existed as required under the exacting scrutiny approach.[15] In light of the Supreme Court’s rule, both the opinion and judgment rendered in United States v. Strandlof were vacated.[16] With this holding, the Stolen Valor Act of 2005 became an unconstitutional statute.

The Enaction of the Stolen Valor Act of 2013

In response to the Alvarez decision, Congress enacted the Stolen Valor Act of 2013, signed into law by President Barack Obama in 2013.[17] This Act “amends the federal criminal code to rewrite provisions relating to fraudulent claims about military service subject to a fine, imprisonment for not more than one year, or both to an individual who, with the intent to obtain money, property, or other tangible benefit, fraudulently holds himself or herself out to be a recipient of a Congressional Medal of Honor, a distinguished service cross [etc.]…”[18] This Act was drafted, with support from the American Legion, to include “the legal language in effort to meet the Supreme Court’s objections to the old [2005] Stolen Valor Act.”[19] While written to serve as a constitutional replacement to the 2005 Stolen Valor Act, this Act too, was met with backlash in United States v. Swisher.

Unauthorized Wearing of Military Decorations Held Unconstitutional

The Stolen Valor Act was further degraded by the Ninth Circuit’s ruling in United States v. Swisher, which found that the reasoning in United States v. Alvarez, which invalidated § 704(b), the fraudulent representation of the receipt of military decorations, extends to § 704(a), which criminalizes the unauthorized wearing of military medals.[20] Appellant Swisher, who was indicted on four violations of federal law, submitted a fraudulent DD-214 to the VA in attempt to acquire additional benefits.[21]

This case overturned the United States v. Perelman ruling, decided two months after the Supreme Court issued its opinion in Alvarez, which narrowly construed § 704(a) as criminalizing only the unauthorized wearing of medals “when the wearer intends to deceive”.[22] Furthermore, Perelman did not apply the “exacting scrutiny” analytic framework because this section of the Stolen Valor statute did not criminalize speech, but criminalized “the harmful conduct of wearing a medal without authorization and with intent to deceive,” and was, therefore, a constitutionally-permissible provision.[23]

The holding in Swisher therefore, overturned § 704(a) of the Stolen Valor Act rendering this section unconstitutional under the First Amendment and noting the Perelman decision as moot.

Implications of Swisher and a Path Forward

These cases not only pose a concern for preserving the honor of these prestigious awards and medals, but also highlight the uncertainty of the scope of the First Amendment itself. With the most recent holding in Swisher, the Supreme Court has made clear that no distinction between conduct and speech holds significance, rather, the statute itself and the legislative purpose in regulating are central to the analysis.[24] These two provisions of the Stolen Valor Act were determined to violate the protections guaranteed under the First Amendment. In turn, Americans enjoy the freedom to both make false representations of their service and wear unearned medals and decorations, contrary to the intended protections of the Stolen Valor Act. Though, faith must not be lost as Congress is attempting to amend this Act in both the House and Senate, to provide penalties for the sale of any Purple Heart awarded to any member of the Armed Forces.[25] Servicemembers and veterans who have rightfully earned these medals should enjoy the full honor that is attached to these decorations; now is the time for Congressional action to restore the protections intended by the Stolen Valor Act to preserve the rights and honors of these medals now and in the future.

[1] Dept. of Justice, Northwest Crackdown on Fake Veterans in “Operation Stolen Valor,” Sept. 21, 2007, https://www.justice.gov/archive/usao/waw/press/2007/sep/operationstolenvalor.html

[2] Id.

[3] 18 U.S.C. § 704.

[4] Stolen Valor Act of 2005, S. Rep. No. 1998-109 Summary (2006).

[5] Id.

[6] 18 U.S.C. § 704(b).

[7] 18 U.S.C. § 704(c); 18 U.S.C. § 704(d).

[8] United States v. Alvarez, 567 U.S. 709, 714 (2012).

[9] See id.

[10] United States v. Alvarez, 638 F.3d 666, 673 (9th Cir. 2011).

[11] United States v. Strandlof, 667 F.3d 1146, 1152 (10th Cir. 2012).

[12] 667 F.3d. at 1167 citing Gertz v. Robert Welch, 418 U.S. 323, 349 (1972).

[13] 667 F.3d. at 1155.

[14] 567 U.S. at 724.

[15] 567 U.S. at 729.

[16] United States v. Strandlof, 684 F.3d. 962, 963 (10th Cir. 2012).

[17] Stolen Valor Act of 2013, H.R. Rep. No. 258-113, Summary (2013).

[18] Id.

[19] The American Legion, Stolen Valor Act of 2013 Signed into Law, Jun. 4, 2013, https://www.legion.org/legislative/215862/stolen-valor-act-2013-signed-law

[20] United States v. Swisher, 811 F.3d. 299, 303-04 (9th Cir. 2016).

[21] 811 F.3d at 305.

[22] 811 F.3d at 310 citing United States v. Perelman, 695 F.3d 866, 870 (9th Cir. 2012).

[23] 811 F.3d at 310 citing 695 F.3d at 871.

[24] See Aaron P. Bretcher, Thinking about Speaking and Doing in the Ninth Circuit: United States v. Swisher, Feb. 25, 2016, https://www.americanbar.org/groups/litigation/committees/civil-rights/practice/2016/thinking-about-speaking-and-doing-in-the-ninth-circuit-united-states-v-swisher/.

[25] Private Corrado Piccoli Purple Heart Preservation Act, S. Rep. No. 122-116 (2019); Private Corrado Piccoli Purple Heart Preservation Act, H.R. Rep. No. 2911-116 (2019).

From Corregidor To Congress’ Corridors: The Fight For Filipino WWII Veterans’ Benefits

By Summer 2019 M-VETS Student-Advisor Jacquelyn Cabada Branscomb

History

In 1941, President Franklin Roosevelt put out a call for Filipinos to fight alongside the American forces against the Japanese invasion of the Philippine Islands.[1] During that time, the Philippines was still a commonwealth of the United States. Under this Presidential Military Order on July 26, 1941, military forces of the government of the Commonwealth of the Philippines were in service to America under the United States Armed Forces of the Far East.[2]

With that call, at least quarter-million Filipinos joined the American forces under four groups: regular Philippine Scouts, the new Philippine Scouts, Guerrilla Services, and the Philippine Commonwealth Army.[3] They were promised, by President Roosevelt, full veterans’ benefits to those who enlisted.[4] Many walked side by side American Forces in the Bataan Death March. Many fought off the enemy on Corregidor. Many were prisoners of war or missing in action. And as American forces retreated as Japan took over the islands, and after General Douglas MacArthur stated that he “shall return,” Filipinos continued to fight on the American territory of the commonwealth of the Philippines. Eventually, the United States did return as promised and Filipinos and US fought side by side again until the end of the war.

Unfortunate Reversal

In 1946, after the war ended, and under President Harry S. Truman, the United States passed what are called the Rescission Acts of 1946. These Acts deemed that the service of certain Filipino veterans is NOT to be considered active service for the purposes of nearly all American laws.[5] With the approval of those acts, thousands of Filipinos who fought off Japanese forces on the American commonwealth was stripped of their label as veteran and of the benefits promised by President Roosevelt. This unfortunate reversal is recognized by the federal government in the Filipino Veterans of World War II Congressional Gold Medal Act of 2015.[6]

Codified at 38 USC § 107, the Rescission Acts, still in effect today, states that “service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, […] pursuant to the military order of the President dated July 26, 1941, […] shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person…”[7]

Veterans who were granted benefits prior to the Rescission Acts being enacted in 1946 can receive their full benefits.[8] However, those who did not claim their benefits are restricted by the law. The Rescission Acts provide for some benefits such as service-connected disability or death benefits, dependency indemnity compensation survivor benefits, and burial benefits.[9] However, the law limits payment to 50 cents on every dollar.[10] Furthermore, receipt of benefits also depends on whether the beneficiary resides in America or in the Philippines.[11] The US Department of Veterans Affairs (VA) also provides benefits for survivors of Filipino veterans but they are also limited.[12]

Course Correction?

Seventy-three years later, these WWII vets are in the upper reaches of their 90s. They have seen several attempts to correct the errors that have kept them from benefits typically conferred on American war veterans. Many attempts have failed.

As part of the American Recovery and Reinvestment Act of 2009, President Barack Obama authorized a program called the WWII Filipino Equity Compensation (FVEC) Fund on February 2009. [13] The VA was appropriated $198,000,000 for lump-sum payments of $9,000 for non-US residents or $15,000 for US Residents.[14] There was a one-year window to apply and the VA received 42,755 applications.[15] As of January 2019, 18,983 claims were granted, and 23,772 claims denied. According to the VA, there is still approximately $56,000,000 available in the FVEC fund.[16] Some veterans have had issues with the required documentation. Thousands of official military personnel files were destroyed in a 1973 fire at the National Personnel Records Center.[17] The Army had an 80% estimated loss of files for personnel discharged between November 1, 1912 and January 1, 1960.[18]

On December 14, 2016, Congress passed, and President Barack Obama signed, Public Law 114-265, known as the Filipino Veterans of World War III Congressional Gold Medal Act of 2015.”[19] This act recognized the efforts of Filipino fighters during WWII and authorized the awarding of a single Congressional Gold Medal for all Filipino Veterans which should then be displayed in the Smithsonian Institution.[20] Copies can be sold to the actual Filipino veterans with funds going to the US Mint Public Enterprise Fund.[21] The ceremony was held on Wednesday, October 27, 2017.

Final Thoughts

There are only a couple thousand surviving veterans and even more immediate family members of surviving or deceased veterans that are waiting for the benefits they were originally promised in 1941. The treatment of these veterans and their families remain a stain on an otherwise friendly alliance between the United States and its former territory. Although the one-time funding provided as part of the stimulus package in 2009 and the conferring of the Congressional Gold Medal on the WWII Filipino Veterans was an honor, the urgent necessity for these aging vets is a comprehensive approach for the vets residing in both the United States and the Philippines. Although ensuring benefits are conferred properly and accurately is complicated, time consuming, and messy, it would seem to be the least we could do for a group of people who volunteered to risk their life for the protection of a valuable American property.

[1] https://www.cnn.com/2017/10/25/politics/congressional-gold-medal-filipino-wwii-vets/index.html

[2] 38 USC 107 note “Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II” (a)(3).

[3] Id.

[4] https://www.cnn.com/2017/10/25/politics/congressional-gold-medal-filipino-wwii-vets/index.html

[5] 38 USC 107 note “Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II” (a)(5).

[6] https://www.congress.gov/bill/114th-congress/senate-bill/1555/

[7] 38 USC 107(a)

[8] 38 USC 107 note “Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II” (a)(5).

[9] 38 USC 107(a)

[10] 38 USC 107 note “Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II” (a)(7).

[11] 38 USC 107 note “Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II” (a)(6).

[12] https://www.benefits.va.gov/BENEFITS/factsheets/survivors/FilipinoSurvivors.pdf

[13] https://www.va.gov/centerforminorityveterans/fvec.asp

[14] Id.

[15] Id.

[16] Id.

[17] https://www.archives.gov/personnel-records-center/fire-1973

[18] Id.

[19] https://www.congress.gov/bill/114th-congress/senate-bill/1555/

[20] Id.

[21] Id.

A new American LEGION post will offer legal assistance for veterans with counselors from Mason’s law school

Local American Legion posts hopeful new law will boost membership ranks

Local American Legion posts hopeful new law will boost membership ranks
American Legion posts nationwide, including Post 180 in Vienna, will have the opportunity to gain more members because of a newly passed federal law. (Photo by Brian Trompeter)
Veterans previously could join the legion only if they served during periods of declared hostilities. Instead of six war eras, the new law permits American Legion membership in two eras: the period since Japan attacked Pearl Harbor on Dec. 7, 1941, and the time between April 6, 1917, and Nov. 11, 1918, when the United States participated in World War I.

“After research and talking with families of those who died in the Cold War days, it gives closure to those who lost family members defending our country when it wasn’t called ‘war,’” he said.

Following the bill’s Senate passage in June, Sinema’s Website quoted Brett Reistad, who now is finishing up his stint as the American Legion’s national commander.

“The passage of the LEGION Act by the U.S. Senate is a clear message of the respect they hold for the American Legion,” said Reistad, a Manassas resident who belongs to American Legion Post 270 in McLean. “Passage of the LEGION Act will permit the American Legion to honor the military service of so many.”

Post 270’s current commander, Marshal Hyman, agreed the new law opens up membership options.

“I think there were people who wanted to be members and couldn’t qualify, and the American Legion wanted more members,” he said. “The rules are set by U.S. legislation and signed by the president.”

Post 270’s membership now stands at 370, although some members are not active, Hyman said. The post recently gained between 50 and 70 members because Post 18 in Washington, D.C., has been meeting at Vinson Hall Retirement Community in McLean and recently renewed its membership via Post 270.

“It is a bit early to tell, but [the LEGION Act] gives the American Legion a much larger population to draw from and many will want to join because they are now eligible,” said Post 270 member W. Glenn Yarborough Jr., who added the new law may boost the post’s membership by about 10 percent.

Congress chartered the American Legion in 1919. The federal government’s 12 formerly unrecognized war periods that involved active-duty U.S. military personnel, but precluded them from joining the legion, included:

• Greek Civil War (1946-1949).

• Chinese Civil War following World War II.

• China Cold War (ended in 1972).

• Cold War (1947-1991).

• Lebanon Crisis of 1958.

• Bay of Pigs invasion in Cuba (April 1961).

• Cuban Missile Crisis (Oct. 16 to 28, 1962).

• Dominican Civil War (1965).

• Iran Hostage Crisis (Nov. 4, 1979, through Jan. 20, 1981).

• Salvadoran Civil War (1980-1992).

• The bombing of La Belle discotheque in West Berlin, Germany, on April 5, 1986.

• Libyan Conflict (July 24, 1987, through Sept. 26, 1988).

The new law will aid the American Legion, which has been suffering from dwindling rolls in recent years, said Bob Romano, commander of Post 139 in Arlington.

Post 139 has had difficulty recruiting members who served in the Iraq and Afghanistan wars, but the organization is taking several steps to improve that situation, he said.

The post, in collaboration with Arlington Partnership for Affordable Housing, is finalizing the sale of its building at 3445 N. Washington Blvd., which will be knocked down early next year to make way for new post facility topped by about 160 affordable-housing units, half of which will be intended for veterans. That building is stated to open in spring 2021, Romano said.

The new post will be about half the size of the current one, but will be state-of-the-art and designed to attract younger, professional members, Romano said. The post also will offer legal assistance with counselors from the George Mason University Law School and provide employment assistance for veterans who’ve just finished active duty, he said.

Dellinger, who belongs to Post 180 in Vienna, said the group’s membership has grown over the past few decades to about 680 people. Under the new LEGION Act, the post now can recruit from a wider swath of veterans, he said.

“What veteran wouldn’t want to be a part of the nation’s largest [veterans service organization] that does so much to promote patriotism, assist our active duty and veterans, and the youth that is America’s future?” he asked.

 

Mason’s Scalia Law School is mentioned for partnering with American Legion Post 139 to provide legal advice to veterans

Veterans Have a Secret Weapon to Deal with Homelessness: Land. A unique partnership will convert an old American Legion Post into affordable housing for veterans.

July 11, 2019

ARLINGTON, Va.—When Bob Romano was installed as commander of American Legion Post 139 in 2014, his family attended the ceremony. Walking out of the veterans facility in Virginia Square, his wife turned to him and said, “I’m never going back in that building.”

Romano has known for some time that the 60-year-old building, its walls reeking of more than half a century of cigarette smoke and needing a laundry list of expensive repairs, would no longer sustain its 300 members. Membership was dwindling, particularly among young veterans.

“We were going broke,” he said. “We realized that in five years, Post 139 wasn’t going to be there.”

They received offers from developers eager to convert the property near George Mason University. But American Legion officials decided to do something that would be unique in the nation: create a partnership with a local housing nonprofit. In 2016, the Arlington Partnership for Affordable Housing (APAH) bought the 1.4-acre parcel in Arlington for approximately $9 million.

“We were in a very unique situation where the land was worth a great investment,” Romano said. “And we invested it back into the veterans.”

The current building will be torn down in early 2020. In its place, APAH will build 160 units of affordable housing, half of which will go to homeless veterans. Post 139 will have its own space on the first floor of the quarters, with modernized facilities, Wi-Fi access, projector screens and multi-use halls. The plan is to open the residential units—APAH’s 17th property in Arlington—to applicants on a first-come basis in summer 2022.

“What’s really interesting to me is that here we are in Arlington, home of the Pentagon, Arlington Cemetery, Joint Base Henderson Hall-Fort Myer, and we have no active military presence really in the community,” said APAH CEO and President Nina Janopaul. “I’m old enough to remember when we didn’t celebrate our returning Vietnam veterans, and I think that as a nation, we really have pivoted on that. If we’re not happy with a conflict, we don’t blame it on the young men and women who served our nation.”

 

M-VETS Student-Advisor Blog Post Used As A Source By Military Times Article

A blog post written by a former Student-Advisor for the Mason Veterans and Servicemembers Legal Clinic (M-VETS) was cited in a recent article by Kyle Rempfer in the Military Times titled, “Service academy graduates could see longer military obligations.”

The article discusses a review by the Senate Armed Services Committee regarding the mandatory service requirements for graduates of the U.S. military academies.  Rempfer notes that the Committee will be examining the service requirements in light of the fact that those requirements have not changed in 20 years despite an increase in cost per graduate of nearly 20 percent.  In addition to the rising education costs, Rempfer noted the Committee’s concern regarding “recent studies suggest[ing] service academy graduates have lower junior officer retention rates than other officer commissioning sources.”  

The M-VETS Student-Advisor wrote the cited Blog post in May 2018, entitled “The Most Bang for your Buck: Are the United States Military Academies the Most Cost-Effective Way of Producing Officers?” The Blog post stated that the cost of a graduate of the U.S. military academies was four times as much as a graduate who earned their commission through the Reserve Officer Training Corps (ROTC) or Officer Training School (OTS) and questioned whether this increased cost was justified.  In his article, Rempfer cited the Student-Advisor Blog for this fact.  The Military Times article can be viewed at the following link: 

https://www.militarytimes.com/news/your-army/2019/07/15/service-academy-graduates-could-see-longer-military-obligations/       

Regarding the Student-Advisors Blog post being used as a source in the Military Times, M-VETS Director, Timothy MacArthur, stated:  “This is an incredible result for the Student-Advisor who wrote the Blog post.  The Military Times has a worldwide following and is a highly respected news outlet.  To be used as a source by a reputable author and/or organization is precisely the reason M-VETS has the requirement for Student-Advisors to write these articles.”

To read the Blog post written by this Student-Advisor, as well as other Student-Advisors posts, please visit the “Blog” page on the M-VETS website.

M-VETS Wins $15,000.00 in Disability Compensation for Former Army Special Forces Group Non-Commissioned Officer

The Antonin Scalia Law School Mason Veterans and Servicemembers Legal Clinic (“M-VETS”) secured Department of Veterans Affairs (DVA) disability compensation for a former Army Special Forces Non-Commissioned officer (NCO) Engineer. M-VETS argued in a Notice of Disagreement (NOD) filed with the DVA the former Special Forces NCO was entitled to service connection and disability payments for injuries caused by military service. While the DVA had previously denied disability compensation to the veteran, they agreed with the argument made by M-VETS and reversed their original denial for disability benefits. The initial disability payment exceeded $15,000.00 with an additional monthly award of $855.00. The monthly disability payment will continue for the rest of the former NCO’s lifetime.

The M-VETS client was a former member of an Army Special Forces Group while on active duty and in the Maryland National Guard. Notably, while on active duty the Special Forces Group NCO deployed to Iraq and Jordan on multiple occasions. Special Forces soldiers are trained to carry out complex missions including counterterrorism operations, guerrilla warfare, and efforts to train foreign fighters.

“I cannot express enough how grateful I am for the help of M-VETS. I didn’t think I would ever see this successfully resolved. GMU M-VETS made it happen. No question. Please accept my sincerest thanks,” said the Special Forces veteran. “For the sacrifices our client made in the military, I am really pleased with the outcome M-VETS was able to secure,” Timothy MacArthur, M-VETS Director said. “To serve as a soldier with Army Special Forces, with multiple overseas combat deployments, it is very challenging work which requires those soldiers to place other interests before their own. The fact that we were able to pursue our clients’ legal needs first hopefully paid a little bit of the debt we owe back to this veteran,” MacArthur said.

M-VETS mission is to provide free legal representation to active-duty members of the armed forces, veterans, and their families while offering law students the opportunity to receive supervised, practical legal experience by advocating for those who serve or have served in our United States armed forces. M-VETS provides representation in a variety of matters including Virginia civil litigation matters, uncontested divorces, consumer protection matters, wills and powers of attorney, as well as assisting with matters before the VA and various administrative boards, including discharge upgrades, record corrections, military pay and entitlement matters, and VA disability benefit appeals.

The Blue Ticket Discharge: A Color that has Stained the Lives of WWII-Era Veterans for Over 75 Years

Nelson Henry Jr. in his WWII uniform before his blue discharge in 1945.

Nelson Henry Jr. on April 25, 2019 contemplating his chances of prevailing at the ABCMR.

By Spring 2019 M-VETS Student-Advisor Rachel A. Petrik

Red, white, and blue are three powerfully symbolic colors. After the Continental Congress passed a resolution on July 4, 1776 “authorizing a committee to devise a seal for the United States of America,” the Secretary of the Continental Congress submitted a report declaring that blue shall be the “the color of the Chief” and thereby “signifies vigilance, perseverance & justice.”[1] Yet for more than 48,000 Army soldiers, blue constituted the color of disdain as they were involuntarily discharged from service for being African-American or homosexual. For almost the past 75 years, one of these WWII soldiers, Nelson Henry Jr. (“Henry”), has persevered and is still fighting today to attain the justice he has long deserved in the form of correcting his racially-discriminatory blue discharge to an honorable discharge. The time is now for the Army Board for the Correction for Military Records (“ABCMR”) to take action to automatically restore the honor of veterans like Henry without requiring independent appeals to right a century-old wrong.

Blue ‘Ticket’ Discharges

Only utilized by the Army and Army Air Corps (the predecessor of the Air Force),[2] the “Blue Discharge” originated in 1916 to replace the administrative discharge known as ‘Uncharacterized.’”[3] So defined, a Blue discharge is one “which is neither honorable nor dishonorable.”[4] The bases warranting such a characterization ranged from protracted absence without leave and fraudulent enlistment to poor performance and, the base for Henry’s discharge, “undesirable traits of character.”[5] While the law granted benefits to those whose discharge was “under conditions other than dishonorable,” the Veteran’s Administration at the time (now known as the Department of Veterans’ Affairs) determined that the Blue discharge was “really dishonorable at all,” concluding that such a servicemember “is not entitled to education or other benefits.”[6]

Ultimately, a disproportionate number of Blue discharges were given to homosexual and African-American servicemembers.[7] Regarding the latter, African-American soldiers constituted a mere 6.5 percent of the Army, yet received 22.2 percent of the Blue discharges issued from 1941 to 1945.[8] Consequently, nearly a quarter of African-American soldiers who fought in World War II were separated without benefits simply because of the color of the paper that their discharge was printed on and largely because of the color of their skin.

Eventually, Congress began to acknowledge that these Blue discharges had “much of the practical effect of a dishonorable discharge” simply without the attendant court-martial.[9] Indeed, “[r]epeated complaints ha[d] arisen from all parts of the country in connection” with the implications and ramifications of this discharge.[10] Yet the House of Representatives was acutely aware that the number of complaints hardly denoted the significance of the devastation already felt by too many servicemembers:

For a person to make such a complaint in his own case implies that he feels a sense of injustice so great that he is willing to risk publicizing the stigma of having been discharged from the Army under circumstances which savor of disgrace. For each complainant there are many more persons who feel the same sense of injustice but prefer to bury their hurt in as much oblivion as possible.[11]

Accordingly, Congress explicitly denounced the practice of denying benefits to blue discharge recipients, proclaiming that “[n]othing could more clearly prove the anomalous and illogical and disingenuous nature of the blue discharge than this policy of the Veterans’ Administration.”[12] Recognizing that decisions “on such subjects as ‘habits and traits of character’ are necessarily subjective and often highly questionable,”[13] the legislative body further asserted that “Veterans’ Administration should be estopped from passing moral verdicts on the history of any soldier, and should be required to accept all veterans but those expressly excluded by Congress[.]”[14] To right these wrongs, Congress thus recommended that “procedures be instituted for an automatic review of all blue discharges issued since the beginning of the present emergency, for the purposes of restoring such discharges to the status of honorable discharges [and] in all cases where records admit of any doubt, the soldier [is] to be given the advantage of the doubt.”[15]

Following Congress’s lead, the Army abolished the Blue Discharge in 1947. However, no automatic review procedure emerged from the dust, nor did the Veterans’ Administration reinstate their benefits. Although future freedom fighters were safe-guarded from receiving a colorful discharge that “gives the impression that there is something radically wrong with the man in question, something so mysterious that it cannot be talked about or written down, but must be left to the imagination[,]”[16] those already stigmatized received no remedy.

Veteran Nelson Henry Jr.’s Fight

Enter Nelson Henry, Jr. Having grown up in Bryn Athyn, Pennsylvania, Henry enlisted in the Army in 1942 while he was a pre-dental major at Lincoln University.[17] He began his active duty journey in Missouri in 1943, at which time he was “assigned to segregated units where black soldiers endured racism and horrible conditions, especially in the South in the Jim Crow era.”[18] It was not long until Henry was disciplined for minor, unsubstantiated infractions such as permitting a fire to burn out.[19] After only two short years, his superior officer recommended a Blue discharge.[20] Henry recounts, “I was furious, to tell you the truth. I had no choice.”[21]

Returning to civilian life, Henry started a family with his wife, Lydia.[22] He struggled to find employment with his Blue discharge and lack of educational opportunities without a GI Bill. Yet he never gave up. A taxi driver by day to support his three children and a student by night, Henry graduated with a bachelor’s degree in psychology from Temple University after 13 years of perseverance.[23]

All the while, however, Henry says the Blue discharge “left a bad taste in my mouth, a cloud over my future. This was a blot on my character.”[24] He had tried shortly after his separation in the 1940s to appeal and upgrade his discharge with assistance from the NAACP and American Red Cross, but to no avail. In a markedly succinct letter, Henry was told bluntly that the review board “denied his appeal for an honorable discharge” without further explanation. [25] He thought the door to justice would be forever closed to him and indeed it was for roughly 72 years. Then suddenly the door opened just last year in 2018.

On an unsuspecting day, Henry’s son “saw a segment on NBC about Helen Grace James, a lesbian woman who was kicked out of the Air Force in 1955 because of her sexuality, and whose discharge was upgraded in 2018.” [26] Similar to Henry, she had received an ‘undesirable’ discharge and was separated without any benefits due to a personal trait.[27] She too had continued to fight her stigmatizing discharge until she was 89, finally obtaining a long-overdue correction.[28] If the Air Force was willing to upgrade hers, perhaps the Army would now upgrade Henry’s.

Fortunately, Legal Aid at Work, who handled James’ successful appeal, agreed to represent Henry as well alongside the Golden Gate School of Law Veterans’ Advocacy Clinic, a student-run clinic like M-VETS.[29] The two groups filed in March 2019 with the ABCMR on Henry’s behalf, requesting yet again for “the Army to clear his name and grant him an honorable discharge.”[30] They have also requested for an expedited hearing as Henry is soon to turn 96 this upcoming June.[31] As one of his lawyers highlighted, “The Army doesn’t have much time to do right by him, or by the many other veterans who were wronged by this shameful practice.”[32]

Corrective Actions

How is it that nearly 75 years have passed without remedy for the majority of Blue discharge veterans? Notwithstanding Congress’ unequivocal recommendation in 1946 to establish an automatic review proceeding, no attempt has been made by the ABCMR to do so. Instead, WWII veterans like Helen Grace James and Nelson Henry, Jr. are forced down an unalterable life path of injustice without benefits or support after having served their country. Whether because of their lifestyle or color of their skin, these veterans deserve so much more than to spend the last remaining years of their lives still fighting for what they should have received that fateful day of their separation: A chance to be heard and a chance to be granted an honorable discharge.

Instead, they are relegated to do just that by filing individual appeals that require legal assistance and span several years with no assurance that the efforts will be recognized. Because of the inherent hardships in pursuing a military discharge upgrade from the 1940s, many veterans do not take the leap. Illustratively, a search for “blue discharge” in ABCMR records yields only 16 decisions.[33]

It is estimated that we lose 372 WWII veterans each and every day.[34] It is unacceptable for these veterans to carry the injustices of their era—to no fault of their own—with them to their final resting points at Arlington National Cemetery. They fought for us, our rights, our freedom. Now it is time for us and the ABCMR to fight for them and restore their honor. After all, “[c]aring for our veterans is the duty of a grateful nation.”[35]

*Photos: Jessica Griffin, The Philadelphia Inquirer, https://www.philly.com/news/pennsylvania/nelson-henry-army-blue-discharge-military-discharge-petition-20190503.html.

[1] Duane Streufert, What do the Colors of the Flag Mean?, The Flag of the United States of America (2005), http://www.usflag.org/colors.html.

[2] Upgrading Less Than Fully Honorable Discharges – Introduction, 1 Veterans Benefits Manual 21.1, FN. 6 (2018).

[3] Major John W. Brooker, Beyond “T.B.D.”: Understanding VA’s Evaluation of a Former Servicemember’s Benefit Eligibility Following Involuntary or Punitive Discharge from the Armed Forces, 214 Mil. Rev. 1, 151 (2012).

[4] Blue Discharge, Ballentine’s Law Dictionary (2010).

[5] Bradford Adams et al., With Malice Toward None: Revisiting the Historical and Legal Basis for Excluding Veterans from “Veteran Services,” 122 Penn St. L. Rev. 69, 76 (2017).

[6] Investigations of the National War Effort, H. R. 20, 79th Cong. at 8 (1946).

[7] Melanie Burney, WWII vet wants Army to upgrade discriminatory discharge to ‘honorable,’ nearly 75 years after expelling him, The Philadelphia Inquirer (May 3, 2019), https://www.philly.com/news/pennsylvania/nelson-henry-army-blue-discharge-military-discharge-petition-20190503.html.

[8] Id.

[9] Investigations of the National War Effort, H.R. Rep 1510 at 13 (1946).

[10] Id. at 1.

[11] Id. 13.

[12] Id. at 8.

[13] Id. at 13.

[14] Id. at 9.

[15] Id. at 13.

[16] Id. at 6.

[17] Melanie Burney, WWII vet wants Army to upgrade discriminatory discharge to ‘honorable,’ nearly 75 years after expelling him, The Philadelphia Inquirer (May 3, 2019), https://www.philly.com/news/pennsylvania/nelson-henry-army-blue-discharge-military-discharge-petition-20190503.html.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] War Department Letter to the Honorable William T. Granaham, RE: Appeal of Former Private Nelson Henry Jr. (August 27, 1946).

[26] Melanie Burney, WWII vet wants Army to upgrade discriminatory discharge to ‘honorable,’ nearly 75 years after expelling him, The Philadelphia Inquirer (May 3, 2019), https://www.philly.com/news/pennsylvania/nelson-henry-army-blue-discharge-military-discharge-petition-20190503.html.

[27] Id.

[28] Id.

[29] Elizabeth Kristen, Army Veteran Seeks the Honorable Discharge he was Denied After WWII Because of his Race, Legal Aid at Work (March 12, 2019), https://legalaidatwork.org/releases/at-95-black-army-veteran-seeks-the-honorable-discharge-he-was-denied-after-wwii-because-of-his-race/.

[30] Melanie Burney, WWII vet wants Army to upgrade discriminatory discharge to ‘honorable,’ nearly 75 years after expelling him, The Philadelphia Inquirer (May 3, 2019), https://www.philly.com/news/pennsylvania/nelson-henry-army-blue-discharge-military-discharge-petition-20190503.html..

[31] Id.

[32] Id.

[33] ABCMR Reading Room, “Blue Discharge” (May 2019), https://search.usa.gov/search/docs?utf8=✓&dc=8134&affiliate=boards&query=”blue+discharge”&commit=Search

[34] Frequently Asked Questions, The National WWII Museum, https://www.nationalww2museum.org/about-us/frequently-asked-questions.

[35] Quote by Patty Murray, Quote Fancy, https://quotefancy.com/quote/1338528/Patty-Murray-Caring-for-our-veterans-is-the-duty-of-a-grateful-nation.

Procopio v. Wilkie: Finally a Win for Blue Water Vietnam Veterans?

By Spring 2019 M-VETS Student-Advisor Katie Stegmuller

Between 1961 and 1971, more than 20 million gallons of herbicides including Agent Orange were sprayed over Vietnam, Cambodia, and Laos.[1] The Agent Orange Act extends a presumption of service connection for disabilities that are positively associated with herbicide exposure to veterans who served in the Republic of Vietnam during the Vietnam Era.[2]

The Procopio v. Wilkie decision rested on the plain meaning of Congress’s words in the Agent Orange Act, specifically “the Republic of Vietnam.”[3] According to international law, “the Republic of Vietnam” includes the territorial waters within twelve nautical miles of the coast.[4] This reasoning convinced most of the judges; however, Procopio’s lawyers alternatively argued that the pro-claimant canon would result in granting the presumption of service connection.[5] The dissenting judge in Procopio believes the language of the Agent Orange Act is ambiguous and that stare decisis should preserve the Haas v. Peake precedent, which denies veterans benefits if they cannot prove that they either stepped foot on land in Vietnam or traveled through its inland waters.[6] The dissenting judge also factored in Congress’s current legislative action on the issue in his opinion and emphasized the projected costs of extending disability benefits to Blue Water veterans.[7]

The DOJ (on behalf of the VA) originally had 90 days to appeal the Procopio decision to the Supreme Court.[8] The Supreme Court granted the DOJ a 30 day extension to appeal. Secretary Wilkie testified on March 26 before the Senate Veterans’ Affairs Committee and said that the VA would not appeal the Procopio decision.[9] Secretary Wilkie also recommended that the DOJ not challenge Procopio.[10]

Congressional Response

Congresswoman Elaine Luria, Chair of the Subcommittee on Disability Assistance and Memorial Affairs, has been trying since February 2019 to get an update from Secretary Wilkie on how benefits will be extended to Blue Water Veterans.[11] Congresswomen Luria stated, “Blue Water Navy Veterans have spent decades wondering if they will get benefits for diseases related to herbicide exposure during their service in the Vietnam War. They deserve clarity, and it’s inexcusable that they must wait another minute for an answer from the government.”[12]

The Blue Water Navy Vietnam Veterans Act was approved 410-0 this past Tuesday.[13] Representative Phil Roe of Tennessee stated, “We need to get it to the Senate and I believe the chairman and I would like to challenge the Senate to start hearing this and perhaps vote on it before Memorial Day. I think that would be the right thing to do.”[14] A similar bill passed the House last year but Senators Mike Enzi (R-Wyo.) and Mike Lee (R-Utah) opposed it.[15]

The Congressional Budget Office (CBO) has just released cost estimates for the Blue Water Navy Vietnam Veterans Act.[16] Some important things to note are that the CBO can only base its projections off the information that the VA can provide to them, and the VA itself only has projections to provide to the CBO. The CBO estimates should therefore be read with these considerations in mind. The CBO has previously estimated that enacting the bill would cost $1.2 billion, while the VA estimated it would cost 45.5 billion.[17] Moreover, note that the Blue Water Navy Vietnam Veterans Act provides for other benefits and programs not contemplated by the Procopio decision. The American Legion has stated, “Congress should enact into law the broadest definition possible and provide clarity and guidance for the expected VA regulations implementing Procopio. Together, we can put this issue to rest once and for all. Our veterans and families deserve no less.”[18]

[1] Patrick Jolly Vet to Vets: Agent Orange and blue-water service, American Canyon Eagle (Napa, CA), 10 February 2019, Copyright 2019 Napa Valley Register, 1615 Second St. Napa, CA, Patrick Jolly.

[2] 38 U.S.C.S. § 1116.

[3] Appeals court gives ‘Blue Water’ vets the win Congress denied, The Progress-Index (Petersburg, VA), 4 February 2019, Tom Philpott.

[4] Id.

[5] Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019).

[6] Appeals court gives ‘Blue Water’ vets the win Congress denied, The Progress-Index (Petersburg, VA), 4 February 2019, Tom Philpott.

[7] Id.

[8] Court case changes Agent Orange list, Winona Post (Minnesota), February 18, 2019

[9] Congresswoman Elaine Luria Presses VA Secretary for Answers on Blue Water Veterans; 20-Year-Navy Veteran Says It’s “Inexcusable” That Heroes Must Wait “Another Minute” For Clarity On Health Benefits; Rep. Elaine Luria (D-VA) News Release, Congressional Documents and Publications, April 4, 2019.

[10] Costs of Expanding Agent Orange Vet Benefits Perplexing Congress, Posted April 24, 2019, Megan Howard, Bloomberg Government

[11] Congresswoman Elaine Luria Presses VA Secretary for Answers on Blue Water Veterans; 20-Year-Navy Veteran Says It’s “Inexcusable” That Heroes Must Wait “Another Minute” For Clarity On Health Benefits.

[12] Id.

[13] Navy vets exposed to Agent Orange get new hope for benefits, Peter Urban, CTNewsJunkie.com Published 10:51 am EDT, Wednesday, May 15, 2019

[14] Id.

[15] Costs of Expanding Agent Orange Vet Benefits Perplexing Congress, Posted April 24, 2019, Megan Howard, Bloomberg Government

[16] CBO Issues Cost Estimate for Blue Water Navy Vietnam Veterans Act, Targeted News Service, May 13, 2019 Monday 8:50 AM EST

[17] Costs of Expanding Agent Orange Vet Benefits Perplexing Congress, Posted April 24, 2019, Megan Howard, Bloomberg Government

[18] Legion testifies on four bills affecting veterans, their families, The American Legion, MAY 07, 2019

The Constitutionality of the Veterans’ Affairs Accountability Acts of 2014 and 2017: Reexamining Helman v. Department of Veterans Affairs and its Impact on Legislative Efforts to Hold Veterans’ Affairs Officials Accountable

By Spring 2019 M-VETS Student-Advisor

Problems within the Department of Veterans Affairs (VA), and specifically, the Veterans Health Administration, have received ample amounts of media attention over the last two decades.[1] Following an investigation by the Office of the Inspector General into a scandal involving several senior executives at the Phoenix Veterans’ Affairs (“VA”) Hospital in 2014,[2] Congress passed the Veterans Access, Choice, and Accountability Act (“VACAA”).[3] VACAA contained a provision that required a simplified and expedited removal process for VA Senior Executive Service (“SES”) employees.[4] The specific provision, contained within 38 U.S.C. §713 (“§713”), created immediate controversy because it severely limited the appeal rights of SES employees who faced a proposed removal action.[5] The provision was so contentious that the Department of Justice declined to offer a defense argument in the first significant legal challenge to the provision in Helman v. Department of Veterans Affairs,[6] going so far as to state publicly that the provision was “unconstitutional.”[7]

After the Court of Appeals for the Federal Circuit (“CAFC”) ruled that a portion of §713 violated the Appointments Clause of the Constitution in Helman, Congress responded by passing the VA Accountability and Whistleblower Protection Act of 2017 (“VAAWPA”).[8] Legislators designed the law to address the constitutional problems raised by the Helman court and add even more disciplinary penalties for SES employees that the VA finds guilty of misconduct.[9] While these laws were important legislative steps forward for holding VA executives accountable, questions regarding VAAWPA’s constitutionality remain.[10] This article briefly summarizes the Helman court’s ruling, its impact on VAAWPA, and lingering questions that resulted from those events.[11]

The Helman Complaint[12]

With VACAA, Congress intended to simplify and expedite the removal process of SES employees that the Civil Service Reform Act of 1978 (“Title 5”) formerly covered.[13] §713 differed from Title 5 in several key aspects that significantly impacted response and appeal procedures for VA executives that faced proposed removal.[14] First, §713 effectively eliminated the 30-day written notice and 7-day response periods required for proposed removal actions under Title 5, i.e. the VA could impose shorter time periods.[15] Next, under Title 5, SES employees could appeal agency removal decisions to the Merit Systems Protection Board (“MSPB”) for review by an MSPB administrative judge (“AJ”).[16] Furthermore, if the MSPB AJ ruled in favor of the agency, SES employees could request review of the decision to the entire three-member, presidentially appointed panel of the MSPB Board (“Board”) as well as the CAFC.[17] §713 expressly prohibited Board or judicial review of final decisions by MSPB AJs. Moreover, under §713, if a MSPB AJ did not issue a decision within 21 days of receiving an appeal, the VA’s removal decision became final, i.e. the VA could make the final decision on removal with no further review.[18]

In the wake of the Phoenix VA Hospital scandal, the Deputy Secretary (“Secretary”) of the VA proposed removal of Ms. Sharon M. Helman (“Helman”), the Director of the Phoenix Veterans Affairs Health Care System for “misconduct that warranted removal from federal service.”[19] Helman timely responded to the proposed removal action within the Secretary-imposed deadline of “5 business days after receipt of the notice.”[20] The Secretary responded with a final decision to remove Helman from federal service effective immediately.[21] This entire sequence of events occurred within 14 days between November 10 and November 24, 2014.[22] After Helman timely appealed her removal to the MSPB, an AJ issued a final decision that upheld the removal.[23] Because the AJ’s decision was final, the Board denied Helman’s request for review pursuant to §713.[24]

Helman petitioned to the CAFC for review of her case, arguing in-part that: I) §713 violated the Appointments Clause of the Constitution because it impermissibly allowed an AJ to implement or overturn the decision of a cabinet-level official without review; and II) §713 did provide her with a meaningful post-termination hearing in violation of her due process rights.[25],[26]

The Helman Decision[27]

a. VACAA Violated the Appointments Clause

The Helman court took up the question of whether §713 impermissibly vested, in MSPB AJs, powers that must be excised by an appointed “Officer of the United States” in violation of the Appointments Clause.[28] Congress cannot appoint an employee that performs duties that can only be performed by an employee that must be appointed by the President.[29] Congress may delegate the hiring of “inferior officers” to Heads of Departments.[30] Those employees who are subordinate to inferior officers are not subject to the Appointments Clause.[31] Whether an employee in the federal government qualifies as an officer is a question of what type of authority that the employee exercises.[32]

In Helman, both parties agreed that the MSPB hired AJs as “employees” as opposed to going through an official procedure to appoint them as “officers.”[33] Helman argued that because §713 expressly denied her further review of a MSPB AJ’s final decision to the Board or other judicial review, it vested “significant authority” to the MSPB AJ.[34] The court reviewed this argument against the backdrop of Freytag v. Comm’r of Internal Revenue,[35] in which the Supreme Court found that because the special trial judges (“STJs”) for the Tax Court have the authority to conduct trials, exercise significant discretion, and render decisions of the Tax Court, they “exercise independent authority” and thus qualify as inferior officers under the Appointments Clause.[36] Comparing the decision in Freytag, the Helman court found that MSPB AJs exercise the same “significant discretion and independent authority” as that of the STJs, noting that an AJ who can issue a final decision with no further review was “no longer a subordinate to any officer.”[37] Thus, the court held that §713 violated the Appointments Clause because it impermissibly vested “significant authority” in MSPB AJs.[38] The court concluded by severing the unconstitutional portions of §713 and remanding the case to the Board.[39]

b. Deferring on Due Process Challenge

In lieu of a remand to the Board, the Helman court declined to rule on Helman’s claims that §713 denied her sufficient due process.[40] Nevertheless, Helman set forth some salient points regarding the “unreasonably rushed” timeframe of §713 that impeded her from presenting a defense.[41] First, she contended that, due to the 21-day response deadline imposed by §713, a petitioner cannot possibly present a meaningful defense for AJs to consider.[42] Furthermore, since the MSPB AJs must make a decision within a 21-day time frame, she argued that they cannot possibly give meaningful consideration to the evidence and arguments.[43] Helman noted that even the AJ that presided over the proceeding called the 21-day timeframe “patently unreasonable.”[44] Perhaps the most persuasive point that Helman made was by simply stating that §713 renders the VA’s decision final if the AJ does issue a decision within the 21-day timeframe. [45] Thus, if the AJ did not file a decision by the deadline for any reason, even those reasons that are not within the control of the petitioner, the VA’s decision becomes final by operation of law.[46] Given that some of the cornerstones of due process are the right to be heard “at a meaningful time,” and in a “meaningful manner,” Helman set forth what appeared to be a legitimate claim that §713 may have fallen short of giving her a meaningful chance to present a defense.[47]

VAAWPA – Did Congress Fix Constitutional Issues or Create New Ones?

Congress responded to the Helman decision by passing VAWPAA, which revamped §713 by completely eliminating MSPB review of SES removal actions and giving SES employees the right to obtain judicial review of any final VA decision.[48] Furthermore, VAWPAA gave SES employees the right to challenge SES removal actions through a Secretary-defined grievance process.[49] The grievance process effectively replaced SES employees’ right to MSPB review of a removal action.

While the grievance process offers a level of review in lieu of the MSPB, it offers new challenges to SES employees that may result in challenges on constitutional grounds. First, it remains to be seen whether Congress is constitutionally permitted to take away the right to MSPB review of removal actions for Title 5 employees.[50] Second, the grievance process is not defined by the provision. Thus, the Secretary is free to establish any procedural requirements that he or she may or may not deem necessary. Third, the provision does not require the Secretary to establish a uniform procedure. Thus, each SES employee is not guaranteed the same procedural features. Fourth, the provision does not require that a presumably neutral deciding official will preside over the grievance process. Thus, the VA official who decided the penalty may also decide the outcome of the grievance. One of the benefits of MSPB review is that a neutral body presides over the appeal.[51] Lastly, it appears that the Secretary may decrease the timeframe for the grievance process appears to at least one day shorter than the 21-day timeframe for MSPB review that VACAA required.[52]

Conclusion

While it is understandable that Congress wanted to avoid more problems with MSPB review of VA SES removal actions, replacing such review with a grievance procedure that is not subject to Title 5 process requirements might be asking for more constitutional challenges. Ideally, any future successful constitutional challenges to VAAWPA will result in a SES removal process that is efficient and constitutionally sound. As President Trump has declared, “[w]e will not rest until all of America’s great veterans can receive the care they so richly deserve.”[53]

[1] See, e.g., Michael Pearson, The VA’s troubled history, CNN (May 2014), https://www.cnn.com/2014/05/23/politics/va-scandals-timeline/index.html

[2] See Wesley Lowery et al., ‘Troubling’ report sparks new wave of calls for VA chief’s resignation, Washington Post., (May 2014), https://www.washingtonpost.com/politics/troubling-report-sparks-new-wave-of-calls-for-va-chiefs-resignation/2014/05/28/b6af712c-e699-11e3-a86b-362fd5443d19_story.html?utm_term=.af67a3420d8a

[3] Pub. L. No. 113-146, 128 Stat. 1754.

[4] Id., §707, 128 Stat. 1798 (codified in relevant part at 38 U.S.C. § 713).

[5] See, e.g., Ashton Habighurst, Enhancing Accountability at the Department of Veterans Affairs: The Legality of the Veterans Access, Choice, and Accountability Act of 2014 under the Due Process Clause, 64 Cath. U. L. Rev. 1045, 1073 (2015) (“[T]he Veterans Access, Choice, and Accountability Act of 2014 raises several due process concerns.”).

[6] 856 F.3d 920 (Fed. Cir. 2017).

[7] See Nicole Orgysko, DOJ says key VA Choice provision for SES appeals is unconstitutional, FEDERAL NEWS NETWORK, (Jun. 2016), https://federalnewsradio.com/workforce-rightsgovernance/2016/06/doj-says-key-va-choice-provision-ses-appeals-unconstitutional/.

[8] Pub. L. No. 115-41, 131 Stat. 863 (2017).

[9] See Donovan Slack, Trump signs VA bill to protect whistleblowers, expedite firing of problem workers, USA TODAY, (Jun. 2017), https://www.usatoday.com/story/news/politics/2017/06/23/trump-seeks-to-expedite-discipline-protect-whistleblowers-veteransaffairs/420688001/.

[10] See Nicole Orgysko, DoJ sees familiar constitutionality challenges in VA accountability bill, FEDERAL NEWS NETWORK, (May 2017), https://federalnewsnetwork.com/veterans-affairs/2017/05/doj-sees-familiar-constitutionality-challenges-in-va-accountability-bill/.

[11] The Helman court expressly stated that the petitioner was “free to pursue” additional constitutional claims that it declined to address. 856 F.3d at 938.

[12] All references to “§ 713” are referring to statutory language within VAACA.

[13] 856 F.3d at 924. See also 5 U.S.C. §§7541–43.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 925.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 926.

[26] Helman also argued that because MSPB AJs are officers of the United States, and the President does not appoint them, the MSPB appointed AJs in violation of the Appointments Clause. Id. Because the court found that the authority vested by §713 was unconstitutional, it declined to rule on “the broader constitutional question of whether administrative judges hearing appeals subject to Board review under § 7701 of Title 5 are inferior officers.” Id. The recent Supreme Court decision in Lucia v. Securities and Exchange Commission appears to have provided direct guidance on this issue. See 585 U.S. ___ (2018).

[27] All references to “§ 713” are referring to statutory language within VAACA unless otherwise noted.

[28] 856 F.3d at 927-30. (“The Appointments Clause provides that: [The President] . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States . . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”)

[29] Id. at 928.

[30] Id.

[31] Id.

[32] See Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976). (“[A]ny appointee that exercises significant authority pursuant to the laws of the Unites States is an ‘Officer of the United States.’”).

[33] 856 F.3d at 928, n3.

[34] Id. at 929.

[35] 501 U.S. 868 (1991)

[36] Id. at 928-29.

[37] Id.

[38] Id. at 929-30.

[39] Id. at 930-36. To date, the case has yet to be heard by the Board due to lack of a quorum. See Matthew Tully, With Two Nominees, the MSPB May Soon Have Its Quorum, FedSmith.com, (Mar. 2018), https://www.fedsmith.com/2018/03/19/two-nominees-mspb-may-soon-quorum/.

[40] 856 F.3d at 936-38.

[41] See Corrected Principal Brief of Petitioner Sharon M. Helman at 59-60, Helman v. DVA, No. 15-3086, Oct. 1, 2015 (“Helman Brief”). Helman pointed to the Ninth Circuit, which held that a 10-day deadline for filing an appeal violated due process. Id. at 63 (citing to Gonzalez-Julio v. INS, 34 F.3d 820, 823-24 (9th Cir. 1994)).

[42] Id.

[43] Id.

[44] Id. at 60.

[45] Id. at 63.

[46] Id.

[47] Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

[48] VAWPAA states that SES employees “may obtain judicial review” of removal actions. 38 U.S.C. §713(b)(5).

[49] VAWPAA states that SES employees may “grieve the action in accordance with an internal grievance process that the Secretary, in consultation with the Assistant Secretary for Accountability and Whistleblower Protection, shall establish for purposes of this subsection. . . . The Secretary shall ensure that the grievance process . . . takes fewer than 21 days.” 38 U.S.C. §713(b)(1)(C).

[50] See Matthew Tully, VA Accountability and Whistleblower Protection Act Tackles the Issue of Firing Insufficient Workers Without Pitfalls, FedSmith.com, (Jun. 2017) https://www.fedsmith.com/2017/06/21/va-accountability-whistleblower-protection-act-tackles-issue-firing-insufficient-workers-without-pitfalls/.

[51] In a recent CAFC decision that addressed another VA SES removal action related to the Phoenix VA Hospital scandal, the court remarked, “Statements credited to Mr. Gibson [VA Deputy Secretary] in the New York Times, for example, are greatly troublesome . . . Mr. Gibson’s alleged statements paint a picture showing Mr. Robinson to be responsible, in part, for the “wait-time scandal” and that Mr. Gibson made up his mind about Robinson’s guilt before he was served with the second proposal of removal . . . Thus, it appears that Gibson publicly announced Robinson’s termination before Robinson even knew about the proposed removal.” Robinson v. Department of Veterans Affairs, No. DE-0752-16-0351-I-1, slip op. at 23 (Fed. Cir. 2019).

[52] See footnote 48 supra.

[53] See The White House, President Donald J. Trump Is Putting Our Veterans First, (Nov. 2017), https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-putting-veterans-first/.

Marijuana Discharges: A Level Playing Field?

By Spring 2019 M-VETS Student-Advisor Todd Mihill

Marijuana laws and enforcement have become a hot topic for discussion in the lead up to the 2020 elections. Perhaps one of the most effected segments of the population is the US military. While this may seem confusing, allow me to provide an example.

The US military falls under the umbrella of the Uniform Code of Military Justice[i], a set of federal laws. A member of the military, a soldier for our example, must behave in compliance with both state and federal laws. This means that our soldier is barred from using marijuana because of the applicable federal law. Our soldier is aware that he cannot use marijuana recreationally or for medical reasons.[ii] Now suppose our soldier who deals with the stress of combat deployments, separation from family and friends, and the rigidity of military life makes a mistake (a life altering mistake for a service member) and uses marijuana a single time. Our soldier lives in a state where marijuana is legal and can be purchased from authorized dispensaries.

When he tests positive for marijuana on a urinalysis test, his command takes administrative action and commences either administrative or punitive separation proceedings for the UCMJ violation. Our soldier is now either administratively separated from the military with a discharge that is either General or Other than Honorable or he is separated with a punitive discharge that is a Bad Conduct or Dishonorable discharge.[iii] Our soldier has entered the civilian workforce again, but he has not entered on a level playing field with his contemporaries. He has the equivalent of either a misdemeanor or felony conviction for substance abuse on his record, if punitively separated, [iv] and/or administrative bad paper with a general or OTH discharge.  Either way, it is far more challenging for him to get a job or even an interview with these types of discharge.

Our soldier made a mistake in the eyes of the military. He broke a rule and was punished for it, but when he is ultimately discharged from the military the punishment continues in the form of increased challenges adapting to civilian life. And what about his crime? The state he lives in doesn’t criminalize the use of marijuana. His contemporaries are free to purchase and use marijuana as they desire and it does not inhibit them in the same way it will inhibit our soldier.

Our soldier’s only recourse is requesting a change to his military record which will likely include the expense of appealing his discharge, years of waiting, and the struggle of dealing with the already over-worked Department of Veteran’s Affairs (VA). Even then, there is no guarantee that he will prevail in his upgrade request. In a world where veterans face countless challenges, do veterans, service members, and the military as a whole, have time to reconcile conflicting state and federal laws? The answer is “not likely” and veterans, like our soldier, will find themselves the victims of inequity following otherwise lawfully executed discharges.

State and Federal Law Conflict

Federal law has long prohibited marijuana as a “Schedule 1” drug.[v] Agencies such as the Drug Enforcement Agency (DEA) are given the authority to prevent the distribution, growth, and sale of marijuana in the US.[vi] Under the UCMJ military members are prohibited from using marijuana for any reason and are frequently screened by urinalysis to detect for the presence of marijuana and other drugs.

The changes in societal opinion and drug laws have most recently sprung forth at the state level. Approximately 23 states now have laws that either legalize or decriminalize the use of marijuana, and 46 states have laws that allow the use of some form of medical marijuana.[vii] Importantly, there are countless military installations in the states where marijuana use has been legalized or decriminalized.[viii] While these laws are directly in conflict with the federal law, it has become clear that federal enforcement efforts cannot cover all of these areas. It appears the federal government has become content to allow the states to make intrastate decisions regarding marijuana, but will become involved in large scale interstate or cross border distribution enforcement actions.

Impact on the Military

The UCMJ defines the actions and behavior of US servicemembers; this is not likely to change any time in the foreseeable future. There is no problem with the military holdings its members to a standard that differs from that of the civilian population. There is little contention that the military, should it decide it is necessary, prevent its members from drinking alcohol or leaving base.[ix] Marijuana is much the same way, but problems arise in the treatment of discharges related to the use of marijuana.

Military servicemembers are subject to an array of stressors that the general population does not experience. Servicemembers endure separation from family and loved ones; they endure rigorous training and deployment cycles; they frequently find themselves moving into new and unfamiliar areas of the country; they find themselves with spouses and children being uprooted from jobs and schools every 2, 3, or 4 years; and these stressors make the military life a difficult one.

With the challenges facing military members and their families, stress relief becomes an important issue. In an era when marijuana has been used to combat anxiety, depression, and stress, and prescribed by doctors as medicine, it is inevitable that the military establishment will see more instances of its members using marijuana and “popping positive” on subsequent urinalysis.

Undoubtedly it is the province of the military to ban the use of any substance it deems necessary. The military can, and arguably should, separate those who knowingly or willingly violate the UCMJ. But what should not happen is the imposition of detrimental punishments that extend far beyond the end of an individual’s service in the US military.

Post-Discharge Challenges

Those servicemembers separated from the military with discharges that are something other than “Honorable” face an uphill battle upon their transition into civilian life. A DD-214[x] that notes a military member had an incident of “Misconduct”, “Drug Use”, or “Positive Urinalysis”, may all preclude a transitioning service member from acquiring gainful employment. While those reasons are all accurate reflections of the military’s position, they may not reflect the law of the state that a veteran chooses to live in.

A veteran living in a state where marijuana use is legal or decriminalized, may never get a chance to explain to a possible employer what his or her “misconduct” was. Or worse yet, an employer may pass over an applicant based on his or her discharge from the military, even though what the veteran did was not a state-recognized crime or infraction.

The military has recognized the changing societal norms that surround marijuana. In 2017 then-Under Secretary of Defense A.M. Kurta provided guidance to Discharge Review Boards (DRBs) and Boards of Correction for Military Records (BCMRs) (who review requests for discharge upgrades) that recognized “For example, marijuana use is still unlawful in the military but it is now legal in some states and it may be viewed, in the context of mitigating evidence, as less severe today than it was decades ago.”[xi] This recognition demonstrates that the military must grapple with the conflicting laws and the implications for those who volunteer to defend the nation.

Our Soldier

Where does this leave our soldier after his discharge? He is relocating himself and his family, he is searching for new employment, and on top of all that, he is enduring the frequently years-long process of having his record changed to reflect the changing societal view on marijuana use. Assuredly the military does not want to inhibit those who serve from being able to successfully transition to civilian life; however, the single-incident separation process currently in place seems to tilt the playing field decidedly in favor of those who have not served.

Suggestion and Conclusion

Our soldier’s discharge was justified, he violated the UCMJ. There was no mistake or error in the process used by the military to separate our soldier. The problem lies in the disparate state and federal treatment of marijuana laws.

Congress could step in and help resolve this issue by removing marijuana from the schedule of controlled substances. However, a more likely fix is recognition within the military that societal norms are changing. The Kurta Memo was a start in the recognition process but further guidance needs to be established for leaders at the unit level who deal with soldiers on a daily basis.

The disparity between state and federal laws should not have an adverse impact on veterans after their service is complete. The argument is not that marijuana use should be legal within the military; instead the process of separating a servicemember for a single incident should be reviewed. A recurring pattern of drug use or abuse is certainly grounds for dismissal with the established narrative reasons, but discharge for a single incident of marijuana use should be captured within the narrative reason in such a way that does not inhibit the servicemember from successfully transitioning to the civilian world- a world in which their military infraction is not a crime at all.

[i] 10 U.S.C. 47 §§ 801-946(a)

[ii] Medical marijuana has been used by doctors to help treat seizure disorders, nerve pain, and appetite issues among other uses. The FDA has recognized some derivatives of marijuana as therapeutic drugs, but has not offered a position on marijuana as a drug citing a lack of evidence. National Institute on Drug Abuse, What is Medical Marijuana?, June 2018 from https://www.drugabuse.gov/publications/drugfacts/marijuana-medicine

[iii] Discharges from the military include (in descending order) Honorable, General Under Honorable Conditions, Other than Honorable Conditions, Bad Conduct Discharge, Dishonorable Discharge. See 38 C.F.R. § 3.12

[iv] Depending on which state and the applicable state law, the infraction a military member commits may be viewed differently in the various states.

[v] 21 U.S.C. § 812

[vi] See DEA Mission Statement, from https://www.dea.gov/mission

[vii] See About Marijuana, from https://norml.org/marijuana

[viii] See Map of Military Bases in the Contiguous US, from https://www.nps.gov/nagpra/DOCUMENTS/BasesMilitaryMAP.htm

[ix] Erik Slavin, Navy Imposes New Liberty, Booze restrictions in Japan, Stars and Stripes from https://www.military.com/daily-news/2016/06/06/navy-imposes-new-liberty-booze-restrictions-in-japan.html

[x] Department of Defense Form 214 is the document provided to all separating members of the armed forces. It outlines various facts about the individual’s career- to include the reason for separation.

[xi] Kurta, A.M., “Memorandum for Secretaries of the Military Departments”, Paragraph 26(j), Aug 25, 2017.