George Mason University Antonin Scalia Law School

M-VETS Finalizes Stepparent Adoption for Army Veteran After Birth Mother Loses Battle with Cancer

(Pictured: Rachel Petrik)

The Mason Veterans and Servicemembers Legal Clinic assisted an Army Veteran in adopting his two adult stepchildren after their birth mother, the Veteran’s wife, passed away from a long battle with cancer. The Veteran married the girls’ mother in 2009, but several years later was himself diagnosed with a treatable form of cancer. Shortly after the Veteran’s remission, his wife was also diagnosed with cancer. The Veteran resigned his teaching position to take care of his wife full time, but despite fighting the battle for two years, his wife passed away in 2017. Though always intending to adopt his stepchildren, it became more important than ever that the Veteran do so with the passing of the children’s mother, so the Veteran and his stepchildren, now adults attending college, sought the assistance of M-VETS in legally binding their familial relationship.

With the consent of the adult stepchildren, M-VETS was able to file the Petition for Adoption, including all affidavits, proposed orders and vital statistics forms. In March of 2019, the Prince William County Circuit Court entered the Final Order of Adoption, concluding the matter favorably for the Veteran and his family. M-VETS Student Advisor Rachel Petrik worked with the Veteran beginning in the fall of 2018 and was able to bring the matter to a quick resolution through her diligence and hard work.

“In this case, we had very motivated clients and a hard working Student Advisor, which resulted in a quick resolution,” said M-VETS Deputy Director, Leigh Winstead. “Rachel did an outstanding job with the case, completing the intake assessment, engaging the clients, completing all required court filings, and receiving a Final Order of Adoption in the span of six months—a portion of which was over the law school’s winter break. Rachel worked through the break to make sure the clients’ case pushed forward,” Winstead said.

“These clients have faced so much hardship and adversity over the last several years, yet they remain positive and have found strength in time of sorrow. Their story is heartwarming and inspirational. We are just happy to be able to bring some relief and a favorable outcome to these clients after all they have endured,” said Winstead.

“Helping my wife raise her two daughters has been a joy,” said the Veteran. “Unfortunately, I had to wait until they were adults to legally adopt them. To complicate matters further, my wife passed away before both girls reached 18, plus they had foreign birth certificates.

“Rachel deftly navigated these and other obstacles to successfully process the adoptions. We have been waiting a decade for this! From my daughters and I, and on behalf of their mom, thank you for a job well done,” said the Veteran.

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.

M-VETS Prevails for Iraq Combat Veteran at Board of Veterans’ Appeals Hearing Securing $22,000 in Reimbursement for Post 9/11 GI Bill Payments

(Pictured: Curt Orshoski)

A 2014 claim for Post 9/11 GI Bill (“GI Bill”) benefits was finally granted at the 100% payment rate after nearly five years of litigation with the Department of Veterans Affairs (DVA). M-VETS successfully argued at a personal appearance hearing before the Board of Veterans’ Appeals (BVA) in D.C. for its client to receive GI Bill benefits at the 100% payment rate.
M-VETS represented a veteran who was medically retired from the United States Army due to service-connected disabilities sustained as a result of combat service in Iraq. The veteran was a member of the Virginia National Guard who mobilized and deployed to Iraq to serve as a linguist with a Special Forces Group from Fort Bragg, North Carolina.
While serving in Iraq, the veteran was physically and psychologically injured. The veteran returned to the United States and was placed on active duty medical hold while receiving treatment for the service-connected injuries. Subsequently, the veteran was referred to the Army Medical and Physical Evaluation Boards that found the veteran’s service-connected medical conditions rendered the veteran unable to further serve in the Army. The veteran was honorably discharged from active duty and permanently retired from the Army due to the service-connected disabilities.

Following the medical retirement from the Army, the veteran applied for educational benefits under the GI Bill and initially received a Certificate of Eligibility (“COE”) from the DVA for the receipt of benefits at the 100% payment rate. With this COE in-hand, the veteran was accepted admitted to a university outside of the United States and began attending classes. When the DVA received notice of the veteran’s enrollment at the university, the DVA determined the COE for the GI Bill at the 100% rate was erroneously issued. The DVA claimed the veteran was only entitled to the GI Bill at the 60% rate. After receiving this decision from the DVA, the veteran was forced to pay out of pocket for a portion of the educational expenses. Subsequently, the veteran filed an appeal to this decision and contacted M-VETS.

M-VETS Director, Timothy M. MacArthur, stated about the matter: “I’m glad the veteran reached out to M-VETS and that we were able to correct this issue. There are certain active duty time requirements that a soldier needs to meet in order to be eligible for the GI Bill at a certain rate. At first glance, the requirements are relatively straight forward, but when you start looking into Army Reserve and National Guard issues coupled with a medical retirement, the answers become harder to find.”

M-VETS filed a brief before the BVA and requested a personal appearance in order to argue the matter in front of a Judge. Prior to the BVA hearing, the DVA’s position was that the veteran had not accrued enough active duty time in service to receive the GI Bill at the 100% rate. Their position was based on the fact that a portion of the veteran’s active duty time was served while on medical hold orders for treatment of service-connected injuries. M-VETS agreed with the DVA assessment of the matter but argued that a statutory exception applied in this case.

At the BVA hearing, M-VETS argued that the veteran served 30 continuous days on active duty in the Armed Forces after September 11, 2001 and was discharged for a service-connected disability. As such, the veteran was entitled to GI Bill benefits at the 100% rate pursuant to 38 U.S.C.A. §3311(b)(2) and 38 U.S.C.A. §3313(c)(1).

Due to the lengthy process involved with litigating this issue, many M-VETS Student-Advisors (SAs) worked diligently on this matter while in the clinic. When the matter was scheduled for hearing in D.C., it was former M-VETS SA Curt Orshoski who argued the motion before the BVA. “Curt did a great job arguing the motion and presenting evidence during the hearing. Our client was able to fly to the United States to attend the hearing and Curt conducted an opening statement, direct examination, and a closing argument which greatly assisted the Judge in determining the favorable outcome for our client,” MacArthur said. “The DVA benefits process is paternalistic in nature which is invaluable for allowing our students to gain practical experience in a non-adversarial setting,” MacArthur continued. “This was a long process and fortunately our client was able to weather the storm financially to see this through. Going to school is expensive and our client received $22,285.52 from the DVA for reimbursement of out of pocket expenses for tuition. Our veteran should not have to pay another dime for educational costs moving forward,” MacArthur said.

M-VETS assists veterans, servicemembers, and their dependents in a variety of civil matters, including uncontested divorces, landlord/tenant matters, consumer protection and contract disputes, as well as in military/VA administrative matters, including MEB/PEBs, discharge upgrades, Boards for Correction of Military Records and VA disability compensation appeals.

M-VETS Provides Support to Legal Services of Northern Virginia for Freedom Day USA Celebration in Alexandria

(Pictured: M-VETS Student-Advisor Josh Morrow (left) and LSNV Paralegal Richard Lane (right))

The Antonin Scalia Law School Mason Veterans and Servicemembers Legal Clinic (“M-VETS”) provided support to Legal Services of Northern Virginia (“LSNV”) during this year’s Freedom Day USA celebration. Dr. Kathleen Mullaney hosted the Freedom Day USA celebration at her dental office located in Alexandria, Virginia on 5 October 2019. M-VETS student-advisor Joshua Morrow represented Scalia Law School and the M-VETS clinic by assisting LSNV in spreading the word about the pro bono legal services provided by M-VETS and LSNV.

The Freedom Day USA celebration provides an opportunity for businesses across the United States to join a national Thank You Movement for the members of our military and their immediate families, along with Veterans. Each business participant is providing a thank you gift, in the form of free services, goods, discounts, and various other offers. This year, Dr. Mullaney provided free dental services to veterans while LSNV and M-VETS promoted their pro bono legal services for veterans during this celebration. M-VETS Director, Timothy M. MacArthur, believes outreach at functions like Freedom Day USA celebrations are essential to promoting the M-VETS clinic. “These outreach opportunities provide a valuable learning experience to the student-advisors as they are able to learn more about our client population. Also, when we provide support at an event where we know a large number of veterans will be present we are able to promote our services and help a few more veterans,” MacArthur said.

Student-Advisor Josh Morrow commented: “The event was an insightful experience to how important these pro bono services are to our Veterans. More importantly, it allowed me and members of LSNV to talk with Veterans about pending legal issues they were going through and educate them on the legal services available to them. I hope events like this become more frequent so we can help our Veterans and continue to provide information about the legal services offered by M-VETS and LSNV.”

M-VETS will continue to conduct outreach and provide information regarding the Scalia Law School to active-duty members of the armed forces, their families, and veterans. Please keep visiting our webpage to keep updated on future events.

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.