Author: M-VETS

Written By Spring 2021 M-VETS Student Advisor Samantha E. Lewis.

Introduction

Hound, puppy, pooch, doggie, man’s best friend… dogs sure do carry many names. Other than being cute and fluffy companions, dogs can potentially serve many other important purposes, and the research on what they can do for those with mental health conditions is ever evolving. There are cadaver dogs, drug sniffing dogs, therapy dogs, bomb sniffing dogs, and, of course, service dogs. Service dogs can be trained to perform a wide variety of tasks, from assisting a blind person in navigating a street to sniffing out and alerting to an irregular heartbeat. Service Dogs for Servicemembers and those who suffer from Post-Traumatic Stress Disorder (“PTSD”) can be a life changing and lifesaving resource. Despite the many benefits of a PTSD service dog, many Veterans who would benefit the most are unfortunately left confused by the obstacles created by competing regulations, as well as misconceptions about who needs a service dog and even the purposes they serve. This quick guide blog post will do a general overview of United States federal and Virginia state regulations, as well as explore resources for assistance in financing and obtaining a service dog.

Understanding the Difference Between a Service Dog and an Emotional Support Animal

            Although this quick guide will focus specifically on service animals, it is important to first clarify the difference in types of working animals, as part of the reason some Veterans may be hesitant to get a service dog could be the common misconceptions concerning the differences between a legally sanctioned, working service dog and something such as an emotional support animal. According to the American Kennel Club (“AKC”) “[s]ervice dogs, working dogs, therapy dogs, and emotional support animals all fulfill important roles in their aid to humans, but the terms are not interchangeable. Each recognition is specifically defined, both in terms of the jobs undertaken and the legal rights offered.”^[1]

Keeping in mind that it is important to pay close attention to state and federal laws when it comes to service dogs and other animals, the differences can generally be summarized by the below chart:

	Service Animal	Emotional Support Animal	Therapy Animal
Definition	Trained to work or perform tasks for people with disabilities	Provide emotional well-being support for people with disabilities	Trained to provide comfort to individuals in specific environments
Applicable Federal Law	ADA	ACAA and FHA	Only state and local laws apply
Type of Animal	Dog or miniature horse	Any animal (with some exclusions)	Any animal
Certified or Registered?	Yes	Yes	Yes
Must Have Documentation Identifying the Disability?	Yes	Yes	No
Live in No-Pet Housing?	Yes	Yes	No
Travel in the Cabin of an Airplane/Train/etc.?	Yes	Yes	No
Be in Public Places?	Yes	Yes	No
Must be Identified by Leash or Vest?	Yes	Not Always Required	No

Service Animal? Emotional Support Animal (ESA)? Therapy Animal? https://portal.esapet.org/tag/service-dog/

What is the Law?

            This is where it gets tricky. Both the United States federal government and the Virginia state government have certain regulations surrounding the use of service dogs, and those looking to obtain a service dog need to ensure they are complying with both.

Federal Law

            The use of service dogs by people with disabilities is regulated by the Americans with Disabilities Act (the “ADA”).^[2] The ADA is a civil rights law that prohibits discrimination based on disability.^[3] The ADA requires state and local government agencies, businesses, and non-profit organizations that provide goods or services to the public to make “reasonable modifications in their policies, practices, or procedures when necessary to accommodate people with disabilities.[4] The service animal rules fall under this general principle. Accordingly, entities that have a “no pets” policy generally must modify the policy to allow service animals into their facilities.”^[5] According to the ADA, the term “disability” “means with respect to an individual…a physical or mental impairment that substantially limits one or more major life activities of such individual…”^[6] Furthermore, “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”^[7]

In reference to use of service dogs, Titles II and III of the ADA are most relevant. Title II of the ADA prohibits disability discrimination by all public entities at the local level. For example, Title II covers places such as the school district, municipal, city, or county, and at state level, and covers access to all programs and services offered by such entities.^[8] Title II of the ADA also applies to public transportation provided by public entities through regulations by the U.S. Department of Transportation, and to all state and local public housing, housing assistance, and housing referrals.^[9]

Title III of the ADA applies to private businesses and makes it such that no individual may be discriminated against on the basis of disability with regards to “the full and equal enjoyment” of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation.^[10] Public accommodations include most places of lodging (such as hotels), recreation, transportation, education, and dining, along with stores, care providers, and places of public displays.^[11]

According to the ADA, a “service animal” is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability, and the tasks the dog is trained to do must be directly related to the person’s disability.^[12] It is important to note that the ADA differentiates between service dogs and emotional support, therapy, comfort, or companion animals, and explains that “[i]f the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the dog’s mere presence provides comfort, that would not be considered a service animal under the ADA.”^[13] Finally, although the ADA does not require that a service dog be professionally trained in order to qualify as a service animal, it is important to note that the dog must already be trained before it can be taken into public places.^[14]

Virginia Law

In addition to the ADA, most, if not all, states have additional laws aimed at protecting those with disabilities. In Virginia the use of service dogs falls under the Disability Rights Law codified at Va. Code §§ 51.5-40 through 51.5-46; the Disability Rights Law is quite similar to the ADA, as many of the same regulations apply. According to the Disability Rights Law, just as with the ADA, people with disabilities may bring their service animals to all “public accommodations,” including stores, businesses, motels, restaurants, theaters, schools, and more, and public accommodations in Virginia must comply with both state and federal law.^[15]

Under the Disability Rights Law, public places have to give access to guide dogs, hearing dogs, and service dogs.^[16] It defines “service dog” as “a dog trained to do work or perform tasks for the benefit of a mobility-impaired or otherwise disabled person.”^[17] Like the ADA, the Disability Rights Law states that “[t]he work or tasks performed by a service dog shall be directly related to the individual’s disability or disorder,”^[18] and further states that “[e]xamples of work or tasks include providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting an individual to the presence of allergens, retrieving items, carrying items, providing physical support and assistance with balance and stability, and preventing or interrupting impulsive or destructive behaviors.”^[19] Virginia code also makes it a Class 4 misdemeanor to fraudulently hold out a dog as a service dog when such dog is not, in fact, a trained service dog.^[20]

How Can a Service Dog Help My PTSD?

Military personnel who are exposed to combat violence are strongly at risk for developing PTSD, and, today, it is estimated that approximately 23% of Veterans deployed to Iraq and Afghanistan are impacted by PTSD.^[21] The main treatments for Veterans with PTSD are counseling (i.e. “talk” therapy), medications, or both.^[22] Although there are a number of treatment options for PTSD, unfortunately PTSD in Veterans is particularly difficult to treat. “Additionally, few treatments incorporate the family members and/or spouses, who often suffer from their own psychological distress, secondary trauma, and caregiver burden.”^[23] In addition to increased treatment dropout rates and other obstacles, Veterans can face unique barriers to accessing and obtaining adequate treatment.^[24] These barriers can include the fact that they have to have either an honorable or general discharge to access Department of Veterans Affairs (“VA”) medical benefits, long waiting lists at VA medical centers, and the social stigma associated with mental illness within the military community.^[25]

Although it may not be the magic “cure” to PTSD, a service dog may provide that extra support a Veteran needs to help, at the very least, manage their PTSD symptoms every day. A PTSD service dog is classified as a “psychiatric service dog,” and is specially and specifically trained to give their Veteran a greater sense of confidence, safety, and independence on a day-to-day basis.^[26] What a PTSD service dog does and how it will help a Veteran is deeply personal, varying from person to person. For example, “a PTSD service dog may be trained to assist the veteran by “watching” their back in public, serving as a physical barrier between the veteran and approaching strangers, waking them up from nightmares, and serving as a physical brace for balance.”^[27] In addition, research suggests that the most vital function of a PTSD service dog is interrupting anxiety episodes.^[28] PTSD service dogs can be specifically trained to detect a Veteran’s physical signs of anxiety and distress, and are able to alert to and actually interrupt anxiety and panic attacks during the day as well as nightmares at night.^[29]

How Do I Get a PTSD Service Dog? How Much Does it Cost? And Is There Anyone That Can Help Me?      

            PTSD service dogs can serve as amazing tools for Veterans in helping to manage symptoms of PTSD. Unfortunately, getting a PTSD service dog is not always a cheap endeavor as service dogs require extensive training. “That training, in addition to veterinary care, staff and dog trainers, registration and more, runs the average cost of a service dog between $20,000 and $60,000.”^[30] This cost alone can, and will, deter a Veteran from getting a PTSD service dog regardless of the clear benefits.

The VA currently provides training for service dogs for certain kinds of conditions, and is an excellent way to support veterans with many kinds of conditions. “From diabetes and mobility issues to object retrieval, VA service dog training provides a reliable and proven way to support people without ever hiring a nurse.”^[31] Unfortunately, and although perhaps it should be, VA Service Dog training is not currently available for people dealing with other issues, like PTSD.^[32]

Thankfully, with increased awareness of the prevalence of PTSD in Veterans has come an increase in the number of organizations that offer help. Although the VA will not pay for a dog or training for their patients suffering from mental disorders, there are a number of organizations that are willing to help Veterans by partially or completely covering the cost of a service animal.

Just some of these organizations include:

• • K9s for Warriors: K9s for Warriors is the nation’s largest provider of Service Dogs for disabled American Veterans. On their website, they say their “program is unique, comprehensive, and proven thanks to research by Purdue University College of Veterinary Medicine. We provide each warrior with a service canine, equipment, training, certification, seminars, legal instruction, vet care, housing, home cooked meals, unconditional love and listening, and a life-time of wrap-around services. In essence, we don’t just give each of our warriors a service dog, we give them the K9s Family.”
  • America’s VetDogs: Established in 2003, America’s VetDogs says that their mission is to “[t]o help those who have served our country honorably live with dignity and independence. The service dog programs of America’s VetDogs were created to provide enhanced mobility and renewed independence to United States veterans, active-duty service members, and first responders with disabilities, allowing them to once again live with pride and self-reliance. Not only does a service dog provide support with daily activities, it provides the motivation to tackle every day challenges.”
  • Patriot Paws: According to their website, “[t]he mission of Patriot PAWS is to train and provide service dogs of the highest quality at no cost to disabled American veterans and others with mobile disabilities in order to help restore their physical and emotional independence.”
  • Companions for Heroes: According to their website, their vision is “[t]o help every American Hero and save every shelter or rescue animal from euthanasia,” and their mission is “[t]o champion public awareness of Post-Traumatic Stress Disorder (PTSD) and challenges confronting our country’s heroes and rally support for shelter animal adoption by connecting heroes and companions.”            In addition to working with a specialized organization to obtain a PTSD service dog, it may be worthwhile to speak with a Disabilities Attorney to help you navigate the federal and state laws surrounding service animals.

• Conclusion

            A PTSD service dog can be a lifesaving tool for those Veterans suffering from PTSD. Unfortunately, Veterans may face many challenges when trying to get a service dog. PTSD service dogs can be costly, and the laws surrounding the use of service dogs are tricky and sometimes unclear. Add in the common misconceptions in the differences between legally sanctioned service dogs and other types of emotional support dogs, and it is easy to get overwhelmed. Thankfully, with increased awareness of the prevalence of PTSD in Veterans, especially in the time following the wars in Iraq and Afghanistan, has come an increase in the number of organizations that offer help and a renewed discussion of how pivotal PTSD service dogs can be. It is of the utmost importance to keep these discussions going and awareness increasing so that even more Veterans can find a service dog.

 

 

 

This blog post is not intended to provide specific legal advice, but instead as general commentary regarding legal matters. You should consult with an attorney regarding your legal issues, as the advice you may receive will depend upon your facts and the laws of your jurisdiction.

 

^[1] Service Dogs, Working Dogs, Therapy Dogs, Emotional Support Dogs: What’s the Difference?, https://www.akc.org/expert-advice/lifestyle/service-working-therapy-emotional-support-dogs/.

^[2] See generally 42 U.S.C § 12101 et seq.

^[3] See id.

[4] See id.

^[5] Frequently Asked Questions about Service Animals and the ADA, https://www.ada.gov/regs2010/service_animal_qa.html.

^[6] 42 U.S.C. § 12102(1)(A).

^[7] 42 U.S.C. § 12102(2)(A).

^[8] 42 U.S.C. § 12131(1).

^[9] 42 U.S.C. §§ 12131 and 12161.

^[10] 42 U.S.C § 12182.

^[11] 42 U.S.C. § 12182.

^[12] U.S. Dept. of Justice, Civil Rights Division, Disability Rights Section, Frequently Asked Questions about Service Animals and the ADA, https://www.ada.gov/regs2010/service_animal_qa.html.

^[13] Id.

^[14] Id.

^[15] Va. Code § 55.1-44.

^[16] Va. Code § 51.5-40.1.

^[17] Id.

^[18] Id.

^[19] Id.

^[20] Va. Code § 51.5-44.1.

^[21] Service Dogs & PTSD, https://vet.purdue.edu/chab/ohaire/PTSD.php.

^[22] PTSD Treatment Options, https://www.military.com/benefits/veterans-health-care/ptsd-treatment-options.html.

^[23] Service Dogs & PTSD, https://vet.purdue.edu/chab/ohaire/PTSD.php.

^[24] Miriam Reisman, PTSD Treatment for Veterans: What’s Working, What’s New, and What’s Next, ncbi.nlm.nih.gov/pmc/articles/PMC5047000/.

^[25] Id.

^[26] Service Dogs & PTSD, https://vet.purdue.edu/chab/ohaire/PTSD.php.

^[27] Id.

^[28] Disrupting Anxiety: The Most Vital Task For PTSD Service Dogs, https://thebark.com/content/disrupting-anxiety-most-vital-task-ptsd-service-dogs#:~:text=Research%20suggests%20that%20psychiatric%20service,veterans%20with%20PTSD%2C%20research%20finds.

^[29] Defining the PTSD Service Dog Intervention: Perceived Importance, Usage, and Symptom Specificity of Psychiatric Service Dogs for Military Veterans, https://www.frontiersin.org/articles/10.3389/fpsyg.2020.01638/full#:~:text=For%20example%2C%20PTSD%20service%20dogs,interrupt%20nightmares%20during%20the%20night.

^[30] Life-changing companions: How to afford a service dog, https://www.bankrate.com/loans/personal-loans/how-to-afford-a-service-dog/#:~:text=Costs%20of%20getting%20and%20owning,dog%20between%20%2420%2C000%20and%20%2460%2C000.

^[31] Top 11 Organizations That Help With VA Service Dog Training for Veterans, https://vaclaimsinsider.com/va-service-dog-training/.

^[32] Id.

Written By Spring 2021 M-VETS Student Advisor Arianna Drerup.

The Hagel Memorandum, and subsequently the Kurta Memorandum, require the Discharge Review Boards (DBRs) to give “liberal consideration” to “veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD [Post-Traumatic Stress Disorder]; TBI [Traumatic Brain Injury]; sexual assault; or sexual harassment.”[1] However, DRBs struggle to apply the “liberal consideration” standard.[2]

DRBs and the History of “Liberal Consideration”

Under 10 U.S.C. § 1533(a), DRBs are authorized “to review the discharge or dismissal… of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member[.]”[3] The “board established under this section may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings.”[4]

Before 2014, the Army granted relief for less than 5% of applications for discharge upgrades from Vietnam veterans based on PTSD.[5] On 3 March 2014, five Vietnam combat veterans and various veterans’ organizations filed a class action lawsuit to seek relief for Vietnam veterans who developed PTSD and received an other-than-honorable discharge.[6] The Department of Defense responded by issuing new guidance, the Hagel Memorandum (Hagel Memo), to the DRBs to give “liberal consideration” to veterans with PTSD seeking a discharge upgrade.[7] As a result, the district court dismissed Monk v. Mabus and remanded the claims of the five named plaintiffs to their respective DRBs so that their claims could be reconsidered under the new guidance.[8] In 2015, all five plaintiffs received an upgrade.[9]

An Army Board for the Correction of Military Records (ABCMR) joint study found that discharge upgrades increased from, 3.7% to 45% one year after the implementation of the Hagel Memo.[10] In 2016, Congress codified parts of the Hagel Memo. DRBs were now statutorily required to grant “liberal consideration” to the applicants with symptoms related to PTSD or TBI.[11] However, despite this initial increase in granting discharge upgrades, the DRBs still struggled with implementing the “liberal consideration” standard. [12]

Class Action Against the U.S. Army

In 2016, Iraq and Afghanistan veterans filed a class action lawsuit against the U.S. Army to enforce the guidance of the Hagel Memo.[13] In Kennedy v. Esper, the plaintiffs claimed that the Army Discharge Review Board ignored the standards in the Hagel Memo and followed “these binding instructions only sporadically and unpredictably, and when it does purport to follow them, it does so inadequately.”[14] On 25 August 2017, while Kennedy v. Esper was still pending, the Department of Defense issued the Kurta Memorandum (Kurta Memo) to provide more guidance and clarify the concepts in the Hagel Memo.[15]

On 18 December 2020, the court in Kennedy v. Esper, now Kennedy v. McCarthy, issued an order granting preliminary approval of class action settlement.[16] In the court’s preliminary findings, it determined that the Stipulation and Agreement of Settlement was “fundamentally fair, reasonable, adequate, and in the best interests of the Settlement Class members.”[17]A Fairness Hearing, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure was scheduled for 24 March 2021.[18] If the court issues a Final Approval Order, the Amended Complaint will be dismissed with prejudice.[19]

Class Action Against the U.S. Navy

On 2 March 2018, Iraq and Afghanistan veterans filed a complaint against the U.S. Navy in Manker v. Spencer.[20] One of the allegations in the complaint state that “the NDRB frequently denies veterans’ discharge upgrade applications on the basis of the presumption of government regularity without explaining why this presumption applies and why the contrary evidence provided is insufficient to rebut it, particularly in view of the federal statute that codifies the ‘liberal consideration’ standard set forth in the Hagel Memo.”[21] The plaintiffs moved to certify a class on behalf Navy and Marine Corps veterans who were denied discharge upgrades by the Naval Discharge Review Board (NDRB).[22] The court granted class certification[23] and “a judicial settlement conference was scheduled for February 2020.”[24]

“Liberal Consideration” Under the Hagel and Kurta Memos

The standards for an upgrade are equity and propriety.[25] The Hagel and Kurta Memos did not change these legal standards. “Liberal consideration” requires that the DRBs consider the facts liberally with an understanding that behaviors associated with a mental health condition may appear to be misconduct.[26] The Memos relaxed the evidentiary standards for applicants with PTSD or PTSD-related conditions.[27]

Parts of the Hagel Memo were codified by 10 U.S.C. § 1553. The statute requires “liberal consideration” for two types of cases.[28] These cases are: (1) where the former member “was deployed in support of a contingency operation” and “was diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing a post-traumatic stress disorder or traumatic brain injury as a consequence of that deployment and (2) cases involving “post-traumatic stress disorder or traumatic brain injury as supporting rationale… whose [PTSD] or [TBI] is related to combat or military sexual trauma….”[29] The DRBS are required to review these types of cases “with liberal consideration to the former member that [PTSD] or [TBI] potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the member’s discharge or dismissal.”[30] The Hagel Memo directs DRBs to “exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge…” and that PTSD or PTSD-related conditions “will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service.”[31] Liberal consideration also means that PTSD as “not a likely cause of premeditated misconduct.”[32]

The Kurta Memo is a clarifying document that was meant to provide “greater uniformity amongst the review boards” and for “veterans[to] be better informed….”[33] The Kurta Memo recognizes that “[i]nvisible wounds …frequently [result] in limited records for the boards to consider, often through no fault of the veteran….”[34] The Kurta Memo goes on to say that “[s]tandards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity to relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later.”[35]

The clarifying guidance provides an analytical framework made up of four questions the DRBs should implement to ensure that the veteran is receiving “liberal consideration.”[36] These questions are: “(a) Did the veteran have a condition or experience that may excuse or mitigate the discharge? (b) Did that condition exist/experience occur during military service? (c) Does that condition or experience actually excuse or mitigate the discharge? [and] (d) Does that condition or experience outweigh the discharge?”[37] The Kurta Memo then goes on to state that evidence is not limited to the veteran’s service record and that the DRBs can also consider other evidence such as mental health counseling centers, pregnancy test, and statements.[38]

When determining if there was a condition or experience, the Kurta Memo dictates that “[e]vidence that may reasonably support more than one diagnosis should be liberally considered as supporting a diagnosis, where applicable, that could excuse or mitigate the discharge.”[39] However, “[l]iberal consideration is not required in cases involving pre-existing conditions which are determined not to have been aggravated by military service.”[40] The Kurta Memo then goes on to state that “[p]remeditated misconduct is not generally excused by mental health conditions, including PTSD; TBI; or by a sexual assault or sexual harassment experience.”[41] Although, the Kurta Memo does allow the DRB to consider substance-seeking behavior as a symptom of a mental health condition and that the DRB should “exercise caution in assessing the causal relationship….”[42]

The Memo’s attachment contains a list of concepts that describe “liberal consideration.”[43] These concepts include the Memo’s recognition that it is unfair to the veteran to expect a higher standard of proof because things like “TBI; mental health conditions, such as PTSD; and victimology were far less understood than they are today.”[44] The list also mentions that while there are circumstances that warrant relief, “liberal consideration does not mandate an upgrade.”[45]

Tension Between “Liberal Consideration” and Other DRB Presumptions

Veterans and veteran advocates were hopeful that the Hagel and Kurta Memos would increase the success rates of discharge upgrade applicants.[46] According to Professor Jessica Lynn Wherry, “despite some initial increases in upgrade rates, over time, the policy has not been implemented as expected” and that “[r]ecent reports from the boards suggest that liberal consideration has not provided the intended relief as the typically low rate of upgrades continues.”[47] In Professor Wherry’s research, she reviewed 477 Naval Discharge Review Board (NDRB) decisions and found various trends and language used in the decisions that suggested that the NDRBs were struggling to apply the “liberal consideration” standard.[48] Professor Wherry found that many of the decisions relied on a “presumption of regularity” to deny an applicant’s discharge upgrade and that the decisions also failed to apply the relaxed evidentiary standards required for “liberal consideration.”[49]

Under 32 C.F.R. § 724.211, the DRBs presume “regularity in the conduct of governmental affairs” and that the “presumption can be applied in any review unless there is substantial credible evidence to rebut the presumption.”[50] However, the Hagel and Kurta Memos were responses to the military failing to recognize PTSD as a mitigating factor.[51] This tension is not addressed in the Hagel and Kurta Memos and the “boards treat this regulatory presumption as a blanket justification for denying relief.”[52] This is evidenced in the complaint in Manker v. Spencer.[53] The presumption of regularity is inconsistent with “liberal consideration.”[54] According to Professor Wherry, “[w]ithout letting go of the presumption, the Board cannot truly and fully apply liberal consideration.”[55]

The DRBs also struggle to apply the relaxed evidentiary standards required by the Hagel and Kurta Memos because there is no guidance for how DRBs should “exercise caution” when considering the nexus between a mental health condition and the misconduct that led to an other-than-honorable discharge. While the Kurta Memo acknowledges that there may be a causal relationship between substance-seeking behavior and the symptoms of a mental health condition, it does not provide any guidance as to how the DRB should “exercise caution in assessing” this relationship.[56] “Rather than extend liberal consideration in cases where the nexus is not clear, the Board has gone out of its way to deny relief based on insufficient nexus.”[57]

Could the New Discharge Appeal Review Board Provide “Liberal Consideration”?

The 2020 National Defense Authorization Act create a new Board, the Discharge Appeal Review Board.[58] “The formation of a new board of appeals for discharges was designed to ensure all previous decisions on appeals were made according to the law and DoD policy.”[59] In April 2021, the Pentagon announced that the new Board would create a new path for relief for service members who were separated on or after December 20, 2019.[60] This Board would allow a final review of an applicant’s request for a discharge upgrade after all other administrative options were exhausted.

While the veteran has another opportunity to have a new Board review his or her request for relief, “the new board will take a very tightly defined look at each case.”[61] The Board may only review the “records from the Board of Correction of Military/Naval Records’ case file” and “will not see people personally.”[62] Perhaps this new Board will encourage the DRBs to apply “liberal consideration” and provide more relief to applicants suffering from PTSD, TBI, or other mental health conditions. However, given the narrow review the Discharge Appeal Review Board can conduct, there is also the fear that it would act as a rubber stamp and continue to affirm previous decisions made from the DRBs without “liberal consideration” of the evidence. At this point, not much is known about who will be on the Board or how many cases it will review.[63] Since the purpose of this new Board is to ensure that the previous decisions were made in accordance with DoD policy, which includes the Hagel and Kurta Memos, this is a new opportunity to enforce “liberal consideration.”

[1] See Memorandum from Chuck Hagel, Sec’t of Def. to Secretaries of the Military Dep’ts, (Sept. 3, 2014); https://www.secnav.navy.mil/mra/bcnr/Documents/HagelMemo.prf [hereinafter Hagel Memo]; A.M. Kurta, Acting under Sec’y of Def. for Personnel and Readiness, to Secretaries of the Military Dep’ts, (Aug. 25, 2017), https://dod.defense.gov/Portals/1/Documents/pubs/Clarifying-Guidance-to-Military-Discharge-Review-Boards.pdf [hereinafter Kurta Memo].

[2] See Jessica Lynn Wherry, Kicked Out, Kicked Again: The Discharge Review Boards’ Illiberal Application of Liberal Consideration for Veterans with Post-Traumatic Stress Disorder, 108 Calif. L. Rev. 1357, 1404-05 (2020).

[3] 10 U.S.C. § 1553(a).

[4] Id. § 1553(b)(1).

[5] Michael J. Wishnie, ‘A Boy Gets into Trouble’: Service Members, Civil Rights, and Veterans’ Law Exceptionalism, 97 B.U.L. Rev. 1709, 1764 (2017).

[6] Veterans Legal Services Clinic, Monk v. Mabus, https://law.yale.edu/studying-law-yale/clinical-and-experiential-learning/our-clinics/veterans-legal-services-clinic/monk-v-mabus.

[7] See Hagel Memo supra note 1; Wishnie, supra note 5 at 1762.

[8] Wishnie, supra note 5 (citing Order on Motion for a Voluntary Remand at 3, Monk v. Mabus, No. 3:14-cv-00260 (D. Conn. Nov. 18, 2014), EFC No. 48).

[9] Wishnie, supra note 5.

[10] Wherry, supra note 2, at 1382.

[11] 10 U.S.C. § 1553(d)(3)(A)(ii).

[12] Id. at 1383.

[13] Stacey-Rae Simcox, Thirty Years of Veteran Law: Welcome to the Wild West, 67 Kan. L. Rev. 513, 571 (2019).

[14] Major Bryant A. Boohar, Combat Stress Claims: Veterans’ Benefits and Post-Separation Character of Service Upgrades for ‘Bad Paper’ Veterans After the Fairness for Veterans Act, 227 Mil. L. Rev. 95, 111 (2019) (quoting Amended Complaint, Kennedy v. Esper, No. 3:16-cv-02010-WWE at 23 (D. Conn. Apr. 17, 2017), EFC No. 11).

[15] See Kurta Memo, supra note 1.

[16] Slip Copy, Kennedy v. McCarthy, No. 3:16-cv-2010 (D. Conn. Dec. 28, 2020).

[17] Id.

[18] Id.

[19] Id.

[20] Complaint, Manker v. Spencer, No. 3:18-cv-00372 at 2 (D. Conn. Mar. 2, 2018), EFC No. 1.

[21] Id.

[22] Id.

[23] Manker v. Spencer, 329 F.R.D. 110, 123 (D. Conn. Nov. 15, 2018).

[24] Wherry, supra note 2, at 1383 n.171.

[25] 32 C.F.R. § 70.9 (b) – (c).

[26] See Hagel Memo, supra note 1; Kurta Memo, supra note 1.

[27] Id.

[28] 10 U.S.C. § 1553 (d)(1)(A), (d)(3)(B).

[29] Id.

[30] Id. § 1553(d)(3)(A)(ii).

[31] Hagel Memo, supra note 1, at 3.

[32] Id. at 4.

[33] Kurta Memo, supra note 1, at 1.

[34] Id.

[35] Id.

[36] Id. at 2.

[37] Id.

[38] Id.

[39] Id. at 3.

[40] Id.

[41] Id. at 4.

[42] Id.

[43] Id. at 4-5.

[44] Id. at 4.

[45] Id. at 5.

[46] See Nikki Wentling, Pentagon Expands Policy to Upgrade Vets’ Bad Paper Discharges, Stars & Stripes, (Aug. 29, 2017), https://www.stripes.com/news/pentagon-expands-policy-to-upgrade-vets-bad-paper-discharges-1.485038.

[47] Jessica Lynn Wherry, (Not the) Same Old Story: Invisible Reasons for Rejecting Invisible Wounds, 17 J. ALWD 15, 18 (2020).

[48] Wherry, supra note 2, at 1388.

[49] Id. at 1389-1411.

[50] 32 C.F.R. § 724.211.

[51] See Hagel Memo, supra note 1; Kurta Memo, supra note 1.

[52] Id. at 1410.

[53] Complaint, Manker v. Spencer, No. 3:18-cv-00372 at 2 (D. Conn. Mar. 2, 2018), EFC No. 1.

[54] Wherry, supra note 2, at 1389.

[55] Id. at 1411.

[56] See Kurta Memo, supra note 1, at 4.

[57] Wherry, supra note 2, at 1397.

[58] Stephen Losey and Jim Absher, Unfairly Discharged from the Military? New Review Board Offers One Last Chance at Appeal, Military News, (Apr. 7, 2021), (https://www.military.com/daily-news/2021/04/07/unfairly-discharged-military-new-review-board-offers-one-last-chance-appeal.html).

[59] Id.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

Written By Spring 2021 M-VETS Student Advisor Henry Chen.

In March 2020, the congressionally chartered National Commission on Military, National, and Public Service released its Final Report.[1] The report recommended requiring women to register for selective service, while also proposing various efforts to expand voluntary military and national service opportunities.[2] These recommendations appear to be gaining support in Congress, with enactment in the near future a realistic possibility.

Background:

In 1973, the U.S. military ended the draft, transitioning to an all-volunteer force which endures to this day. Proponents of the all-volunteer force note that it has enabled the services to raise recruiting standards, creating a self-motivated force of unparalleled professionalism.[3] However, critics of the current system note that the burden of the past two decades of endless war have fallen disproportionately upon the declining share of (largely middle and working class) Americans qualified and willing to serve in the armed forces.[4] Others point to increasing challenges in recruitment and the growing civil-military divide as arguments that the current system is unsustainable.[5]

Concurrently, the Pentagon’s decision to lift the ban on women serving in combat arms billets beginning in 2015[6] fostered an intense debate on whether women should be required to register with the Selective Service System.[7] While the Senate version of the 2017 National Defense Authorization Act (NDAA) would have required women to register with the Selective Service System, this language was eventually left out of the final version of the bill.[8]

Two address the two issues above, the final version of the 2017 NDAA created the National Commission on Military, National, and Public Service (“the Commission”), a temporary federal agency.[9] The Commission was tasked with conducting “a review of the selective service process” as well as considering “methods to increase participation in military, national, and public service.”[10] The Commission, consisting of 11 members appointed by the President as well as majority and minority leadership in both chambers of Congress[11], was required to conduct public hearings across the country[12], and issue a final report containing its recommendations.[13]

Findings:

After two and a half years of extensive public engagement, the Commission issued its Final Report, containing its findings and recommendations on March 25, 2020.[14] Key recommendations from the Final Report included:

• Requiring women to register for selective service, while retaining the current selective service mechanism.[15]
• Increasing military outreach, particularly to areas with low-propensity to join the military.[16]
• Expanding educational opportunities during military service and developing strategies to recruit and retain in high-demand occupations (ex. cyber).[17]
• Expanding civic education programs in schools.[18]
• Significantly increasing non-military service opportunities in order to create “an expectation of service” by 2031.[19]

Notably, the report did not recommend universal national or military service. Hearings on the Final Report, delayed for a year due to the COVID-19 pandemic, were held before Senate Armed Services Committee on March 11, 2021, where the Commission’s recommendations appeared to be well received by senators of both parties.[20]

Prospects:

Most controversial among the Commission’s recommendations was requiring women to register for selective service. Many social conservatives have long opposed requiring women to register for a potential draft, seeing it as at odds with traditional gender roles.[21] Meanwhile, many liberals and libertarians oppose the selective service system altogether, viewing the idea of requiring individuals to serve during wartime as government overreach.[22] However escalating geopolitical conflict with China and Russia, coupled with the low percentage of American youths qualified for military service, may weigh in favor of expanding draft eligibility.[23] The current Chairman of the Joint Chiefs of Staff and other top military officials have long supported requiring women to register.[24]

Moreover, the issue of women and the draft could be decided judicially. In the 1981 case Rostker v. Goldberg, the Supreme Court had dismissed an equal protection challenge to male-only selective service registration reasoning that the primary purpose of the draft was to generate combat troops, and that “women as a group…are not eligible for combat.”[25] With the Pentagon’s decision to lift the ban on women in combat arms, the American Civil Liberties Union filed a fresh equal protection challenge to the male only draft.[26] While the Fifth Circuit upheld the male only draft, citing Rostker as binding precedent, a petition for cert is currently pending before the Supreme Court.[27] While the outcome of such a legal challenge is far from certain, it may place increasing pressure on Congress to expand draft eligibility through legislation.

The other recommendations in the Final Report are relatively non-controversial. However, they would require funding, at a time when the Department of Defense is facing potential budget cuts framed by some progressive Democrats as necessary to offset massive spending on COVID-19 relief.[28] Nevertheless, other factors do favor implementation of the Final Report’s recommendations. There is a general bipartisan consensus that concerns about the national debt cannot be allowed to hinder military readiness against growing threats from China and Russia.[29] 2020 saw the National Guard mobilized on an unprecedented scale due to COVID-19 and domestic unrest[30], while the recently enacted American Rescue Plan recovery bill includes significant funding for AmeriCorps expansion.[31] Finally, concern over declining national cohesion and the growing civil-military divide has led Senators and Representatives in both parties to view expanded service opportunities as a potential solution.[32]

While only time (and the FY 2022 NDAA) will tell, these emerging trends suggest bipartisan support for expanding military and national service in an era of increased domestic and international turmoil.

[1] The Final Report of the National Commission on Military, National, and Public Service, National Commission on Military, National, and Public Service (Mar. 25, 2020), https://www.inspire2serve.gov/sites/default/files/final-report/Final%20Report.pdf.

[2] Id.

[3] See, e.g., Dana T. Atkins, In defense of the all-volunteer force, Military Times (Feb. 04, 2021), https://www.militarytimes.com/opinion/commentary/2021/02/04/in-defense-of-the-all-volunteer-force/.

[4] See, e.g., Dennis Laich, A nation of draft dodgers, Military Times (Feb. 01, 2021), https://www.militarytimes.com/opinion/commentary/2021/02/01/a-nation-of-draft-dodgers/.

[5] See, e.g., George M. Reynolds, How Representative Is the All-Volunteer U.S. Military?, Council on Foreign Relations (Apr. 25, 2018), https://www.cfr.org/article/how-representative-all-volunteer-us-military.

[6] Emma Moore, Women in Combat: Five-Year Status Update, Center for a New American Security (Mar. 31, 2020), https://www.cnas.org/publications/commentary/women-in-combat-five-year-status-update.

[7] David Weigel, Senate votes to require the draft for women, as conservatives try to undo it, The Washington Post (June 15, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/06/15/senate-votes-to-require-the-draft-for-women-as-conservatives-try-to-undo-it/

[8]Jonathan M. Gaffney, Expanding the Selective Service: Legal Issues Surrounding Women and the Draft, Congressional Research Service, (Sep. 14, 2020) at 3, https://crsreports.congress.gov/product/pdf/LSB/LSB10491

[9] P.L. 114-328, §§ 551-57.

[10] P.L. 114-328, § 551(a).

[11] P.L. 114-328, § 553(b).

[12] P.L. 114-328, § 554.

[13] P.L. 114-328, § 555.

[14] The Final Report of the National Commission on Military, National, and Public Service, National Commission on Military, National, and Public Service (Mar. 25, 2020), https://www.inspire2serve.gov/sites/default/files/final-report/Final%20Report.pdf.

[15] Id. at 8.

[16] Id. at 34-38.

[17] Id. at 39-43.

[18] Id. at 17-21.

[19] Id. at 1.

[20] Final Recommendations and Report of the National Commission on Military, National, and Public Service, U.S. Senate Committee on Armed Services (Mar. 11 2021), https://www.armed-services.senate.gov/hearings/21-03-11-final-recommendations-and-report-of-the-national-commission-on-military-national-and-public-service.

[21] See, e.g., Richard Lardner, GOP blocks provision to require women to register for draft, Associated Press (May 17, 2016) https://apnews.com/article/f9f2bc74db4d4b7992916561e37fd9fe.

[22] See, e.g., Rebecca Kheel, Left divided over women registering for the draft, The Hill (May, 15, 2016), https://thehill.com/policy/defense/279870-left-divided-over-women-registering-for-the-draft.

[23] Leo Shane III, Support for making women register in the draft, but none for mandatory military service, commission says, Military Times (Mar. 11, 2021), https://www.militarytimes.com/news/pentagon-congress/2021/03/11/support-for-making-women-register-in-the-draft-but-none-for-mandatory-military-service-commission-says/.

[24] Patricia Zengerle, Top U.S. generals: Women should have to register for draft, Reuters (Feb. 2, 2016), https://www.reuters.com/article/us-usa-military-women/top-u-s-generals-women-should-have-to-register-for-draft-idUSKCN0VB1UR.

[25] Rostker v. Goldberg, 453 U.S. 57, 76 (1981).

[26] Alexandra Kelley, Supreme Court asked to declare the all-male military draft unconstitutional, The Hill (Feb. 19 2021), https://thehill.com/changing-america/respect/equality/539575-supreme-court-asked-to-declare-the-all-male-military-draft.

[27] Id.

[28] Rebecca Kheel, Battle heats up over Pentagon spending plans, The Hill (Mar. 21, 2021), https://thehill.com/policy/defense/544126-battle-heats-up-over-pentagon-spending-plans.

[29] Joe Gould, US military may sidestep big budget cuts backed by progressives, (Feb. 25, 2021), https://www.defensenews.com/congress/2021/02/25/us-military-may-sidestep-budget-cuts-backed-by-progressives/.

[30] Alex Horton, Pandemic and unrest fuel the biggest National Guard mobilization since World War II, The Washington Post (Dec. 24, 2020), https://www.washingtonpost.com/national-security/2020/12/24/national-guard-response/.

[31] Mary Tobin and Rye Barcott, Why Biden COVID relief plan will fuel public service in America, USA Today (Mar. 12, 2021), https://www.usatoday.com/story/opinion/2021/03/12/biden-covid-relief-plan-welcome-stimulus-public-service-column/6953629002/.

[32] See, e.g., Final Recommendations and Report of the National Commission on Military, National, and Public Service, U.S. Senate Committee on Armed Services (Mar. 11 2021), https://www.armed-services.senate.gov/hearings/21-03-11-final-recommendations-and-report-of-the-national-commission-on-military-national-and-public-service.

Written By Spring 2021 M-VETS Student Advisor John R. Wilson.

The current loophole within the Higher Education Act’s 90/10 Rule incentivizes proprietary schools, or for-profit institutions, to view veterans and servicemembers as merely dollar signs in uniforms.[1] “Our commitment to care for our veterans is a sacred obligation and ensuring their hard-earned GI Bill benefits are safeguarded is part of that sacred obligation.”[2]

History of The 90/10 Rule

With the passage of the Serviceman’s Readjustment Act of 1944 (or “the GI Bill”), many WWII vets were eager to make use of their newly-vested benefits to further their education.[3] However, with this increased demand for higher education, many for-profit schools sought to capitalize on the availability of federally-insured tuition payments.[4] Despite the relative success of the GI Bill program, many dismal and well-documented abuses of these GI benefits took place in the years following the war.[5] In one such scandal, a trade school offered veterans a free television in return for their educational GI benefits![6] Since then, Congress has taken legislative action to prevent taxpayer dollars from lining the pockets of educational entrepreneurs.[7]

In 1965, Congress passed the Higher Education Act (“HEA”) which made low-interest, federal loans available to students, also referred to as Title IV funding.[8] In 1992, the HEA was amended to require that for-profit schools receive at least 15% of their revenue from sources other than Title IV funding.[9] This cap on federal funding served as a market viability tool “to weed out institutions that could survive only by a heavy influx of federal payments.”[10] In 1998, this requirement on proprietary schools was lowered to 10%, allowing these schools to receive up to 90% of their revenue from Title IV funding.[11] The 1998 HEA Amendment has come to be known as the 90/10 Rule. By requiring for-profit schools to obtain at least ten percent of their funding from non-Title IV sources (rather than allow these schools to rely solely on federal funding), the 90/10 rule serves as a metric for educational quality.[12]

The 90/10 Loophole

The 90/10 Loophole refers to the reality that GI benefits and Department of Defense (“DoD”) Tuition Assistance funds do not currently count towards the 90% and are calculated as part of the 10% of revenue that must come from non-Title IV sources.[13] Some argue that counting any federal funding towards the 10% runs afoul of the HEA’s original intent.[14] Sarah Flanagan, the Senate’s federal student aid specialist who helped draft this piece of legislation, stated that “[w]hen the law was enacted, for-profits hadn’t yet moved into the military market, so the legislation’s sponsors weren’t focused on Defense Department tuition assistance.”[15] Yet despite numerous amendments, Congress has repeatedly chosen not to include GI benefits and DoD Tuition Assistance as part of the 90%.[16] That means for every veteran who pays tuition with GI benefits, for-profit schools may enroll nine more students who pay their tuition entirely with Title IV funds.[17]

Accordingly, both present and past members of the US military have targets on their backs in the educational context. Servicemembers and veterans have suffered from aggressive recruiting strategies, false representations regarding post-graduation employment statistics, and high-pressure sales tactics used by proprietary schools that are more interested in their own profit margins than the well-being of our men and women in uniform.[18] For-profit colleges tend to have lower graduation rates and post-graduation employment statistics than their public and non-profit counterparts.[19] Furthermore, loan default rates are disproportionately higher for students attending proprietary schools, representing less than 10% of all students but almost half of all student loan defaults.[20] Since the 90/10 Loophole incentivizes proprietary schools to recruit and exploit US military members, this statutory loophole should be closed by requiring GI benefits and DoD Tuition Assistance to count towards the 90%.

The Loophole’s Last Breath?

During the 116^th Session of Congress, a bipartisan group of senators introduced the Protect VETS Act of 2019, which would do away with the 90/10 Loophole.[21] However, not everyone sees the closure of this loophole as something that will benefit these students. Michael Dakduk, the Chair of Veterans for Career Education, expressed his disapproval because doing closing the 90/10 Loophole would allegedly restrict school choice for servicemembers and veterans.[22] While proprietary schools that fail to comply would certainly be precluded from enrolling these students, many advocacy groups such as Veterans Education Success and Student Veterans of America support the Protect VETS Act and view this legislation as a net-positive for servicemembers and veterans.[23]

The swing of the political pendulum in the 2020 elections indicate that the days of the 90/10 Rule are numbered. Many expect the Biden administration to be less sympathetic to the cause of for-profit schools than the previous (and interested) administration.[24] President Biden promised during his campaign to close the 90/10 Loophole.[25] Both he and Vice President Harris, during their tenures as state attorneys general, advocated for the closure of the 90/10 Loophole.[26] Dr. Miguel Cardona, Biden’s Secretary of Education nominee and formerly democrat-appointed official, will likely play a significant role in the efforts to close this statutory loophole.[27] Perhaps most critically, the Democratic control of both the Senate and House signal that GI and DoD funding may soon be prevented from counting towards the 10% requirement of proprietary schools.[28] If the 90/10 Loophole is closed, servicemembers and veterans will no longer be subjected to the exploitive tactics of for-profit schools seeking to capitalize on their GI benefits and DoD Tuition Assistance.

[1] Press Release, U.S. Department of Education, New Analysis Finds Many For-Profits Skirt Federal Funding Limits, (Dec. 21, 2016), https://www.ed.gov/news/press-releases/new-analysis-finds-many-profits-skirt-federal-funding-limits.

[2] Press Release, Tom Carper, U.S. Senator for Delaware, Carper, Lankford, Cassidy, Tester Introduce First Ever Bipartisan Senate Bill to Protect Student Veterans by Closing the 90/10 Loophole, (Nov. 14, 2019), https://www.carper.senate.gov/public/index.cfm/pressreleases?id=1F2296F8-2DF9-4F25-8046-C13323F94F6E.

[3] John Bound & Sarah Turner, Going to War and Going to College: Did World War II and the G.I. Bill Increase Educational Attainment for Returning Veterans?, 20 J. of Labor Economics 784 (2002).

[4] Marvin Lazerson, The Disappointments of Success: Higher Education After World War II, in The Changing Educational Quality of the Workforce 64-76 (1998).

[5] David Whitman, Truman, Eisenhower, and the First GI Bill Scandal, The Century Foundation (Jan. 24, 2017), https://tcf.org/content/report/truman-eisenhower-first-gi-bill-scandal/?agreed=1#easy-footnote-bottom-1.

[6] Id.

[7] Id.

[8] Higher Education Act of 1965, Pub. L. No. 89-329 (1965).

[9] Shannon M. Mahan, Cong. Research Serv., 7-5700, Examination of the Current 90/10 Rule and Its Legislative and Regulatory History (2011).

[10] Cleland v. Nat’l Coll. of Bus., 435 U.S. 213, 216 (1978). “A minimal number of nonveterans were required to find the course worthwhile and valuable or the payment of Federal funds to veterans who enrolled would not be authorized.”

[11] Mahan, supra note 9, at 9.

[12] New Analysis, supra note 1.

[13] Hollister K. Petraeus, For-Profit Colleges, Vulnerable G.I.’s, The New York Times (Sept. 21, 2011), https://www.nytimes.com/2011/09/22/opinion/for-profit-colleges-vulnerable-gis.html.

[14] Letter from Jack Conway, Att’y Gen., Commonwealth of Kentucky, to Chairperson and Ranking Member of Senate and House Committee on Veterans’ Affairs (May 29, 2012), https://www.iowaattorneygeneral.gov/media/cms/Schools_4_profit_924BF51B5599F.pdf.

[15] 90/10 Loophole, Veterans Education Success, https://vetsedsuccess.org/what-we-do/policy-advocacy/our-work-with-the-executive-branch/education/90-10-loophole/ (last visited Jan. 21, 2021).

[16] See Mahan, supra note 9.

[17] Conway, supra note 14; see also Petraeus, supra note 13.

[18] New Analysis, supra note 1; Conway, supra note 14; Petraeus, supra note 13.

[19] Petraeus, supra note 13.

[20] Conway, supra note 14.

[21] Protect Veterans’ Education and Taxpayer Spending Act of 2019, S. 2857, 116th Cong. (2019).

[22] 90/10 Senate Bill Seeks to Restrict Choice for Veterans, Veterans For Career Education (Nov. 14, 2019), https://www.vetsforcareered.org/news/9010-senate-bill-seeks-to-restrict-choice-for-veterans.

[23] Joelle Fredman, Senators Introduce ‘Landmark’ Bipartisan Bill to Protect Student Veterans, Close 90/10 Loophole, National Association of Student Financial Aid Administrators (Nov. 19, 2019), https://www.nasfaa.org/news-item/20122/Senators_Introduce_Landmark_Bipartisan_Bill_to_Protect_Student_Veterans_Close_90_10_Loophole.

[24] John Kroger, What If Biden Wins?, Inside Higher Ed (Sept. 29, 2020), https://www.insidehighered.com/blogs/leadership-higher-education/what-if-biden-wins.

[25] Hallie Busta, What’s ahead for for-profits and OPMs under Biden?, Higher Ed Dive (Nov. 19 2020), https://www.highereddive.com/news/whats-ahead-for-for-profits-and-opms-under-biden/589436/.

[26] Conway, supra note 14.

[27] Wesley Whistle, How For-Profit Colleges Might Fare Under Joe Biden And Kamala Harris, Forbes (Sept. 14, 2020), https://www.forbes.com/sites/wesleywhistle/2020/09/14/how-for-profit…leges-might-fare-under-joe-biden-and-kamala-harris/?sh=3e5df19933ac.

[28] Busta, supra note 25.

 

Written By Fall 2020 Student Advisor Andrew Quillen.

Introduction

Multilevel Marketing companies (MLM), also called direct selling or network marketing, are businesses that create revenue by using a non-salaried workforce (“sellers”) to sell products or services directly to consumers.[i] The trick is that sellers generally pay a membership or recruitment fee, and they must purchase the inventory they will sell with their own funds. This upfront inventory-investment from sellers protects the MLMs profits but puts the seller at high risk of losing money in the venture. Further, this scheme ensures that most of the earnings MLMs realize only benefit very high-level employees in the business. The Consumer Awareness Institute (CAI) recognizes that MLMs “can be extremely harmful, causing huge losses for those who invest the most in the schemes.”[ii]

MLMs rope-in participants by appealing to the American dream of pulling one’s self up by the bootstraps to earn a solid income.[iii] While the offers of “unlimited income,” “being your own boss,” and “starting a business on the cheap with little training” are appealing, the high-investment cost and low to non-existent return earn these companies the labels “flawed, unfair, and deceptive.”[iv] MLM schemes often prey on veterans, military dependents, and even some active duty servicemembers by peddling false hopes of a consistent and mobile income flexible enough for a military lifestyle.[v]

How Does an MLM Work?

MLMs often involve the person-to-person sales of cosmetics, wellness products, or home decor items, typically sold through product parties by friends or family members.[vi] Many MLMs have become household names (e.g., Mary Kay, LuLaRoe, Herbalife, Pampered Chef, and Amway).[vii] They thrive on a growing pyramid of new recruits to be sellers, pushing recruitment fees and commission incomes up the pyramid to those above them.

Because MLM profits are pushed vertically, the real benefit for a participant comes from recruiting others to join. Each person a seller recruits supplements their own commission, building a pyramid-style income stream.[viii] This means the folks on the bottom make little to no income, while moving up the ladder (through recruiting others) is the only way to break even or earn a small income. For example, the CAI found that the top 200 Amway earners in Wisconsin earned a net income of minus $900 a year—the story in Utah was similar in 2004.[ix] Further, the Institute found that on average only “[a]pproximately two distributors … operated profitably out of 20,000 total.”

Folks at the top of the MLM are usually the only ones who make a decent income—MLMs often advertise this minority, top-level income to entice new sellers.[x] While the advertised income is appealing, getting to the top of the ladder is near-impossible because (1) MLMs present very high attrition rates for new sellers, (2) the sale-commissions often do not make up for the cost of purchasing stock for direct-sale, and (3) the flawed market practices the MLMs generally permeate.[xi]

Abuses and Risks

Many critics claim that “presenting [an] MLM as a ‘business opportunity’ or ‘income opportunity’ is a misrepresentation” and that the “flawed, unfair, and deceptive” practices of MLMs create “a systemic problem.”[xii] This is primarily due to the masking of the structural earning limitations for most sellers and recruits, and the false narrative of an uncompetitive market for sellers presented by the MLM.

MLMs present recruits and sellers with a flawed vision of the market; they assume an infinite and uncompetitive market.[xiii] Simply, this means an MLM’s profitability hinges on the theory that there are unlimited buyers out there, and the market is untouched by other sellers or products. This is inherently flawed. Many sellers find that potential buyers are not interested in their MLM products, and that they are not the only seller in the market. This is what makes MLMs inherently flawed, unfair, and deceptive.[xiv]

MLMs present structural limitation which suppress earnings and make profitability near-impossible for recruits and sellers. Because profits and commission fees travel disproportionately up the MLM pyramid, most recruits and sellers see little-to-no profit. Research by the CAI shows that 99% of recruits lose money because of high membership fees and the cost of seller-purchased products.[xv] Further, it found that in a selection of 350 MLMs, 100% of them were recruitment-driven and the “vast majority of commissions paid” going to a small groups of “top-of-the-pyramid promoters.”[xvi]

Are MLMs Legal?

MLMs’ legality is complicated by the fact they look and act similar to illegal pyramid schemes. The Federal Trade Commission (FTC) has held that a company may be an illegal pyramid scheme when participants pay “money to the company in return for […] (1) the right to sell a product and (2) the right to receive”—in return for recruiting other participants into the program—“rewards which are unrelated to sale of the product to ultimate users.”[xvii] Essentially, pyramid schemes “involve compensation for recruiting regardless of consumer sales. In such schemes, participants receive rewards for recruiting in the form of ‘headhunting fees’ or commissions on mandatory inventory purchases by the recruits known as ‘inventory loading.’”[xviii]

While pyramid schemes are illegal scams principally based on recruitment and investment, legal MLMs offer a product-focused approach for sellers along with recruitment.[xix] The primary difference between pyramid schemes and MLMs is based on the products they sell. If the company makes its income primarily from the sale of products to actual end-users, it is likely a legitimate MLM.[xx] If the company makes the majority of its revenue off of participation fees from new and continuing sellers, it may be a pyramid scheme. Because most MLMs require large capital investments from new sellers (i.e. participation fees and seller-purchased products) but also include product sales, it is sometimes difficult to separate them from a pyramid scheme. Despite the similarities between the two business styles, the FTC recognizes that pure MLMs are legal.^[xxi] But, distinguishing between the two can be challenging for courts and attorneys, let alone a potential recruit or seller.

Many MLMs have been prosecuted for illegal activities, often reflective of pyramid schemes. For example, the FTC charged AdvoCare, a health and wellness MLM, as a pyramid scheme in October 2019;[xxii] it is also suing Neora, another health and wellness MLM.[xxiii] The FTC shut down 2xtreme Performance International[xxiv] and Equinox International in 2000, two notorious MLM-pyramid schemes.[xxv] And in January 2020, the FTC sued Success by Health, an instant coffee MLM.[xxvi] In addition to this selection of FTC suits, many MLMs settle private and public law suits every year,[xxvii] such as Herbalife’s huge $200 million settlement around 2016.[xxviii] These cases generally turn on “deceptive promises about how much money distributors will earn” as well as their predatory recruitment-focused practices.[xxix]

How MLMs Impact the Military

Since their growth in the 1960s, MLMs have presented “a systemic problem” in our society, generally preying on the unemployed, low-income individuals, veterans, and military dependents.[xxx] Through peddling claims of “flexible hours,” “high incomes,” and “being your own boss,” MLMs look particularly attractive to our service veterans and military dependents facing employment challenges.

Military spouses largely face high levels of unemployment or underemployment, despite generally having higher-levels of education than their civilian counterparts.[xxxi] While many spouses seek employment, the difficulties of military life—such as moving every three to four years, being stationed overseas, and deployments—make it challenging for dependent spouses to pursue jobs or careers while their spouse is on active duty.[xxxii] MLMs will intentionally target military spouses to benefit from the transience of military life.[xxxiii] This lifestyle opens the product and recruitment stream to new opportunities each time the family moves.[xxxiv] While the MLMs clearly benefit from military spouses, it is hard to say the reverse.

MLMs entice spouses with an opportunity to be flexibly employed while touting the prospect of making money. While MLMs feign to be the solution to the employment issues incumbent upon military spouses, they present the same risks and abuses outlined previously. Unfortunately, many military spouses fall victim to MLM schemes. As expected, these schemes cost the military household money and often cost the family many valuable relationships and friendships.[xxxv] Because MLM success rests on recruiting others to the company, many military spouse recruits burn bridges with friends and family in pursuit of their MLM’s mission.[xxxvi]

Veterans also make ripe targets for MLMs. For at least two-thirds of veterans, the transition from military to civilian life presents tremendous challenges.[xxxvii] They often cite “finding a job” as the greatest challenge in the transition; many struggle to transfer their skills to the civilian environment.[xxxviii] The employment challenges facing veterans make MLMs—who peddle the dream solution: no-skill requirements and ultimate independence—look like the perfect solution. Rather than being a solution, MLMs often make veterans’ situation worse by creating debt and pushing new sellers to fracture existing relationships.[xxxix] For an unemployed veteran, losing money and those who support you presents a grave threat to your success.

Conclusion

If someone comes offering a job where you can “be your own boss” and have “flexible, part-time work hours while making thousands,” it just might be too good to be true. These operations often take recruits’ money and time while giving back debt and ruined relationships. It is important that military families and veterans understand the risks associated with MLMs so they do not fall into the trap as many have before. When approached with an opportunity like this, do some investigation. Research the company and consult a financial advisor before diving in.

 

[i] Gregory Karp, The fine line between legitimate businesses and pyramid schemes, CHI. TRIB., Feb. 10, 2013, https://web.archive.org/web/20200809180345/https://www.chicagotribune.com/business/ct-xpm-2013-02-10-ct-biz-0210-herbalife-20130210-story.html.

[ii] Taylor, Jon M. “The Case (for and) against Multi-level Marketing.” Appendix A: The History of Pyramid Schemes and Multi-level Marketing, Consumer Awareness Institute, Jon M. Taylor (2011), accessed at https://www.ftc.gov/sites/default/files/documents/public_comments/trade-regulation-rule-disclosure-requirements-and-prohibitions-concerning-business-opportunities-ftc.r511993-00012%C2%A0/00012-57312.pdf.

[iii] Vincent G. Ella, Multi-Level or Pyramid Sales Systems: Fraud or Free Enterprise, 18 S.D. L. REV. 358 (1973).

[iv] Taylor, supra note 2; see Ella, supra note 3; see also Karp, supra note 1.

[v] Crispin Burke, The Truth About Multi-Level Marketing Businesses and How They Hurt Military Members, Task & Purpose, Jan. 29, 2018, https://taskandpurpose.com/career/truth-multi-level-marketing-businesses-hurt-military-members/

[vi] Karp, supra note 1.

[vii] Id.

[viii] Ella, supra note 3.

[ix] Taylor, infra note 12.

[x] Id.

[xi] Id.; Taylor, supra note 2.

[xii] Taylor, supra note 2; Taylor, Jon M. “The Case (for and) against Multi-level Marketing.” Chapter 7: MLM’s Abysmal Numbers, Consumer Awareness Institute, Jon M. Taylor (2011), accessed at https://www.ftc.gov/sites/default/files/documents/public_comments/trade-regulation-rule-disclosure-requirements-and-prohibitions-concerning-business-opportunities-ftc.r511993-00008%C2%A0/00008-57281.pdf.

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] In re Koscot Interplanetary, Inc., 86 F.T.C. 1106, 166-167 (1975).

[xviii] In re Amway Corp., 93 F.T.C. 618, 97-98 (1979).

[xix] Fed. Trade Comm’n, Multi-Level Marketing Businesses and Pyramid Schemes, accessed on January 10, 2021 at https://www.consumer.ftc.gov/articles/0065-multi-level-marketing-businesses-and-pyramid-schemes.

[xx] See id.; see also Debra A. Valentine, International Monetary Funds Seminar on Current Legal Issues Affecting Central Banks: Pyramid Schemes. Federal Trade Commission (1998).

[xxi] See In re Amway Corp., 93 F.T.C. 618 (1979).

[xxii] Press Release, Fed. Trade Comm’n, Multi-Level Marketer AdvoCare Will Pay $150 Million To Settle FTC Charges it Operated an Illegal Pyramid Scheme (Oct. 2, 2019), https://www.ftc.gov/news-events/press-releases/2019/10/multi-level-marketer-advocare-will-pay-150-million-settle-ftc.

[xxiii] Press Release, Fed. Trade Comm’n, FTC Sues Multi-Level Marketer Neora, formerly known as Nerium, Alleging it Operates as an Illegal Pyramid Scheme (Nov. 1, 2019), https://www.ftc.gov/news-events/press-releases/2019/11/ftc-sues-multi-level-marketer-neora-formerly-known-nerium.

[xxiv] Press Release, Fed. Trade Comm’n, FTC Halts Pyramid Scheme (Apr. 10, 2000), https://www.ftc.gov/news-events/press-releases/2000/04/ftc-halts-pyramid-scheme.

[xxv] Press Release, Fed. Trade Comm’n, Equinox International Settles Case with FTC, Eight States Nearly $40 Million in Restitution for Alleged Pyramid Victims (Apr. 25, 2000), https://www.ftc.gov/news-events/press-releases/2000/04/equinox-international-settles-case-ftc-eight-states-nearly-40.

[xxvi] Press Release, Fed. Trade Comm’n, FTC Acts to Shut Down ‘Success by Health’ Instant Coffee Pyramid Scheme (Jan. 16, 2000), https://www.ftc.gov/news-events/press-releases/2020/01/ftc-acts-shut-down-success-health-instant-coffee-pyramid-scheme.

[xxvii] Lisette Voytko, Herbalife, Younique, LuLaRoe And Other MLMs Suddenly Under Fire, Forbes, Nov. 11, 2019, https://www.forbes.com/sites/lisettevoytko/2019/11/07/herbalife-younique-lularoe-and-other-mlms-suddenly-under-fire/?sh=280e3dd97db6.

[xxviii] Press Release, Fed. Trade Comm’n, Herbalife Will Restructure Its Multi-level Marketing Operations and Pay $200 Million For Consumer Redress to Settle FTC Charges (Jul. 15, 2018), https://www.ftc.gov/news-events/press-releases/2016/07/herbalife-will-restructure-its-multi-level-marketing-operations.

[xxix] Karp, supra note 1.

[xxx] Taylor, supra note 12; Ella, supra note 3.

[xxxi] Gonzalez, Gabriella C., et al., Evaluation of the Military Spouse Employment Partnership: Progress Report on First Stage of Analysis. Santa Monica, CA: RAND Corporation, 2015. https://www.rand.org/pubs/research_reports/RR1349.html.

[xxxii] Id.; see Burke, supra note 5.

[xxxiii] Michelle Black, Multi-Level Marketing and Military Families: How to Spot a Scam, Magnify Money, Nov. 11, 2019, https://www.magnifymoney.com/blog/news/multi-level-marketing-military-families/#popular

[xxxiv] Id.

[xxxv] See Alexandra Mondalek, Why MLMs Are So Appealing to Military Spouses, May 29, 2018, https://www.racked.com/2018/5/29/17377706/multilevel-marketing-companies-military-spouse

[xxxvi] See Burke, supra note 5.

[xxxvii] Prudential Finance, Inc., Veterans’ Employment Challenges: Perceptions and experiences transitioning from military to civilian life, Sep. 4, 2012, 2018, https://eoa.oregonstate.edu/sites/eoa.oregonstate.edu/files/veterans_employment_challenges.pdf

[xxxviii] Id.

[xxxix] See supra, “Abuses and Risks” section.

Written By Fall 2020 M-VETS Student Advisor Jeremy Hall.

Amidst—and perhaps overshadowed by—the chaos surrounding the presidential transition, President Donald Trump signed a significant veterans benefits bill into law on January 5, 2021. The more than 300-page bill, titled the “Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020,”[1] incorporated a number of separate bills intended to assist veterans who are homeless, who are students, or who have been affected by the ongoing COVID-19 pandemic.[2] The bill was approved by congress in mid-December, and was presented to the President on December 24.

Among the measures included in the bill was the Deborah Sampson Act (“Act”),[3] sponsored by Congresswoman Julia Brownley (D-CA), Chair of the bipartisan Women Veterans Task Force.[4] The Act, described in a press release by its sponsor as “the most comprehensive legislation for women veterans in a decade,” was designed to “help address the inequities and barriers that women veterans face when accessing [Department of Veterans Affairs] care and benefits.”[5]

The Act, named for Deborah Sampson—one of the first American women to serve in combat—seeks to correct what the bill’s sponsor described as the “second-class” treatment that the more than two million women veterans in the United States often receive.[6] The Women Veterans Task Force, which worked on the Act, sought to address challenges women veterans often face, including “longer wait times, sexual harassment by fellow veterans, staffing shortages, and facilities that fail to meet basic environment-of-care standards.”[7]

Among the Act’s provisions is a section establishing the Office of Women’s Health (“Office”) within the Department of Veterans Affairs (“VA”), headed by the Chief Officer of Women’s Health.[8] The Office was created to centralize the VA’s efforts to evaluate and improve healthcare provided to women by the VA.[9] The Office will also develop, implement, and monitor standards of care for the provision of health care for women veterans by the VA.[10] Among the minimum standards of care is a requirement that each VA medical center and community-based outpatient clinic have one primary care provider specifically designated for women’s health.[11] The Act also seeks to improve counseling programs, newborn and child care, and emergency transportation for women veterans.[12] The Act mandates that the Chief Officer of Women’s Health submit an annual report to congress outlining steps taken to carry out these requirements, with an emphasis on access of women veterans to gender-specific services.[13]

In an attempt to address the findings of a recent survey by the Community Homelessness Assessment, Local Education and Networking Groups for Veterans (CHALENG for Veterans), the Act also requires the VA to enter into agreements with public or private entities to provide additional legal services for women veterans.[14] These agreements must be designed to focus on the following unmet needs identified by the CHALENG survey: child support, prevention of eviction and foreclosure, discharge upgrades, financial guardianship, credit counseling, and family reconciliation assistance.[15]

Another notable provision of the Act requires the VA Secretary to create a comprehensive policy to end harassment and sexual assault, including gender-based harassment, at all VA facilities.[16] The Act follows a period of increased scrutiny of the Department of Defense’s efforts to deal with sexual assault and harassment in the military.[17] For example, a VA Office of Inspector General report in 2018 “found that nearly half of [military sexual trauma]-related claims were not properly processed following [Veterans Benefits Administration] policy,” possibly resulting in “the denial of benefits to potential victims of [military sexual trauma] who could have been entitled to receive them.”[18] To combat this finding, the Deborah Sampson Act requires the VA to establish specialized teams to process claims related to military sexual trauma.[19] The Act also includes reporting requirements related to these teams.[20]

The Deborah Sampson Act—and the larger veterans benefits package—follows several years of legislative efforts by a variety of groups, including members of congress, the Women Veterans Task Force, and non-profits such as the Iraq and Afghanistan Veterans of America (IAVA).[21] While much work remains to be done, the bill makes important strides forward to accomplish the stated mission of the Women Veterans Task Force: “to increase the visibility of the two million women who have served in the U.S. military and promote inclusivity and equitable access to comprehensive healthcare, benefits, education and economic opportunity, and other federal resources, particularly at the Department of Veterans Affairs.”

[1] H.R. 7105, Pub. L. No. 116-315 (2021).

[2] See Leo Shane III, Women Veterans, Students Would See Expanded Services and Benefits Under New Law, Military Times (Jan. 5, 2021), https://www.militarytimes.com/news/pentagon-congress/2021/01/05/women-veterans-students-would-see-expanded-services-and-benefits-under-new-law.

[3] H.R. 3224.

[4] See Women Veterans Task Force, H. Comm. on Veterans Affairs, https://veterans.house.gov/women-veterans-taskforce (last visited Jan. 24, 2021).

[5] Press Release, Brownley Applauds Congressional Passage of Historic Women Veterans Legislation, Congresswoman Julia Brownley (Dec. 16, 2020), https://juliabrownley.house.gov/brownley-applauds-congressional-passage-of-historic-women-veterans-legislation.

[6] Id.

[7] Id.

[8] Pub. L. No. 116-315, § 5101 (2021).

[9] Id.

[10] Id.

[11] Id.

[12] Press Release, Brownley Applauds Congressional Passage of Historic Women Veterans Legislation, Congresswoman Julia Brownley (Dec. 16, 2020), https://juliabrownley.house.gov/brownley-applauds-congressional-passage-of-historic-women-veterans-legislation.

[13] Pub. L. No. 116-315, § 5101 (2021).

[14] Id. at § 5105.

[15] Id.

[16] Id. at § 5303.

[17] See, e.g., Ashley Close, Fifteen Years of Department of Defense Efforts to Prevent and Respond to Sexual Assault within the Military: The Accomplishments and Shortcomings, M-VETS (August 21, 2020), https://mvets.law.gmu.edu/2020/08/21/fifteen-years-of-department-of-defense-efforts-to-prevent-and-respond-to-sexual-assault-within-the-military-the-accomplishments-and-shortcomings (describing various efforts by the Department of Defense to address and prevent sexual assault within the military).

[18] Department of Veterans Affairs, Office of Inspector General, Denied Posttraumatic Stress Disorder Claims Related to Military Sexual Trauma (2018); see also Leo Shane III, Report: VA May Have Mishandled Thousands of Sexual Assault Cases, Military Times (Aug. 21, 2018), https://www.militarytimes.com/veterans/2018/08/21/report-va-may-have-mishandled-thousands-of-sexual-assault-cases.

[19] Id. at § 5501. The Act defines “military sexual trauma,” with respect to a veteran, as “a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment during active military naval, or air service.” Id.

[20] Id.

[21] See IAVA Celebrates Final Congressional Passage of Deborah Sampson Act Following Years-Long Campaign¸ Iava.org (Dec. 16, 2020), https://iava.org/press_releases/iava-celebrates-final-congressional-passage-of-deborah-sampson-act-following-years-long-campaign/.

Written By Summer 2020 M-VETS Student-Advisor Cameron Williams.

Military veterans have struggled trying to overcome substance use disorders (SUDs) for over two centuries of American conflicts. Beginning after the Revolutionary War soldiers consumed two substances we consider relatively benign today, alcohol and caffeine[1]. After the Civil War, many veterans were addicted to medications and drugs such as morphine and opium, with many of the veterans’ first contacts with the drugs occurring during the war[2]. This movement continued during both World War II and the Korean War, as many veterans returned home addicted to amphetamines given to them as “pep pills” to reduce soldier fatigue[3][4]. During the Vietnam War, many veterans returned addicted to heroin and alcohol[5]; and during the most recent conflicts in the Middle East, many veterans have returned with addictions to both prescription opioids and alcohol[6]. As part of the Department of Veteran’s Affairs (VA) mission is “to care for him who shall have borne the battle”, helping veterans overcome their addictions is of primary concern to the military.

The Diagnosis and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) recognizes SUD in ten different categories of drugs[7]. SUD can manifest itself in eleven different ways[8]. For all categories of drugs, a patient that shows two to three symptoms has mild SUD, a patient that shows four to five symptoms has moderate SUD, and a patient that shows six or more symptoms has severe SUD.

Determining the prevalence of SUDs in veterans is difficult. Prior to the DSM-5’s release in 2013, the VA used The International Classification of Diseases, Ninth Revision (ICD-9) to determine if a veteran had SUD. Studies that use the DSM reported higher rates of veterans suffering from SUD than VA backed studies that used the ICD-9 Criteria for the disorder[9]. Additionally, because not all veterans utilize all VA healthcare options, there are more than likely veterans who are suffering in silence[10].

Approximately 11% of veterans diagnosed by the VA meet the criteria for a SUD diagnoses using the DSM-5.[11] The most common substances that cause young[12] veterans to have SUD are alcohol and tobacco. Though veterans mainly struggle with SUD for legal substances, veterans struggle with illicit drug use as well, with 29% and 38% of young male and female veterans respectively using illicit drugs[13]. The primary illicit drug used by veterans is cannabis, and from 2002 to 2009 cases of cannabis use disorder increased by over 50%[14].

Opioid abuse is also rising for veterans. In 2009, 24% of veterans utilizing VA health care had a prescription for an opioid[15]. 4.5% of young veterans use opioids for at least six months, and over 17% of veterans diagnosed with Post Dramatic Stress Disorder also have a prescription for opioids[16]. With research suggesting people with mental health disorders (MHD) are more susceptible to SUD, the number of veterans with MHD receiving prescriptions for opioids is troubling.

The structure and demographics of the military leads to veterans developing SUDs. SUDs generally occur more in young males, which is a demographic that makes up a significant portion of the military[17]. Environmental stressors that are occur in the military have also been shown to increase the risk for development SUDs among veterans, including deployment, combat exposure, and reintegration challenges[18].

The military has realized since the Vietnam War that SUDs were problematic for veterans, and since the 1970’s the Department of Defense (DoD) has released several directives to help servicemembers with substance issues[19]. Though the DoD has released these directives, the implementation of the directives has been haphazard. Discipline for alcohol abuse and drug abuse is handled differently, there is no standardization for the directives from the DoD, and the policies are not fully informed by scientific evidence for finding and treating SUDs[20].

The VA offers over two hundred treatment programs across the country for veterans to receive help for SUDs[21]. The Warrior Check-Up program is one such program, where low-pressure tactics are used to reach out to veterans who believe they may have a SUD[22]. Additionally, the VA encourages veterans to use groups such as Alcoholics Anonymous and Narcotics Anonymous[23]. Though the VA makes these efforts, one could argue they could do more to find servicemembers and veterans with SUDs. Four fifths of veterans who have a SUD with alcohol do not receive treatment for their SUD[24].

For veterans that receive treatment for SUDs through the VA, the VA provides two main types of treatment. For alcohol or opioid based SUDs, the VA offers psychotherapy treatment[25]. For this treatment, the VA uses short-term cognitive treatment to determine behaviors that increase the use of the substances[26]. The VA offers this treatment both in person and online, and it has been proven to lower drinking rates for veterans who suffer from alcohol-based SUD[27]. The VA also offers pharmacotherapy treatment for some veterans who suffer from SUDs[28]. When using pharmacotherapy treatment, the VA prescribes medications to veterans who suffer from withdrawal symptoms of alcohol and opioids, as well as medications that can decrease cravings[29]. Pharmacotherapy is done in conjunction with psychotherapy treatment[30]. Besides psycho- and pharmacotherapy. The VA also offers veterans the Alcohol and Drug Dependence Rehabilitation Program. This program provides veterans with intensive outpatient treatment, residential treatment, medically managed detoxification, or relapse prevention depending on the veteran’s needs[31].

Between the demographics of the military and military stresses, veterans experience SUDs at a higher rate than the general population. The VA and DoD recognize these issues that veterans deal with, and over the past decades have been making strides to help veterans and servicemembers overcome these lifelong issues. Though there are still improvements to be made to the programs, one can hope that eventually the DoD will be able to find a solution to help all veterans that suffer from dependence issues after serving the country.

[1] See Andrew Golub & Alexander S. Bennett, Introduction to the Special Issue: Drugs, Wars, Military Personnel, and Veterans, in PMC 2013 Nov. 3, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3815474/.

[2] Id.

[3] Id.

[4] This trend continues today, as the military has approved the use of Modafinil, a drug which works similar to amphetamine.

[5] Golub.

[6] Golub.

[7] The ten categories are alcohol; caffeine; cannabis; hallucinogens (phencyclidine or similarly acting arylcyclohexylamines, and other hallucinogens, such as LSD); inhalants; opioids; sedatives, hypnotics, or anxiolytics; stimulants (including amphetamine-type substances, cocaine, and other stimulants); tobacco; and other or unknown substances.

[8] The eleven symptoms of SUD are: 1) Taking the substance in larger amounts or for longer than you’re meant to; 2) Wanting to cut down or stop using the substance but not managing to; 3) Spending a lot of time getting, using, or recovering from use of the substance; 4) Cravings and urges to use the substance; 5)Not managing to do what you should at work, home, or school because of substance use; 6) Continuing to use, even when it causes problems in relationships; 7) Giving up important social, occupational, or recreational activities because of substance use; 8)Using substances again and again, even when it puts you in danger; 9) Continuing to use, even when you know you have a physical or psychological problem that could have been caused or made worse by the substance; 10) Needing more of the substance to get the effect you want (tolerance); and11) Development of withdrawal symptoms, which can be relieved by taking more of the substance.

[9] Jenni B. Teeters, et al., Substance Use Disorders in Military Veterans: Prevalence and Treatment Challenges, Substance Abuse and Rehabilitation, 30 Aug. 2017 at 70.

[10] Id.

[11] Id.

[12] Under 25 years old.

[13] Teeters at 70.

[14] Id.

[15] Id. at 71.

[16] Id.

[17] Id. at 70.

[18] Id.

[19] Institute of Medicine, Substance Use Disorders in the U.S. Armed Forces Summary, https://www.ncbi.nlm.nih.gov/books/NBK207266/

[20] Id.

[21] Todd H. Wagner et al., Prevalence of Substance Use Disorders Among Veterans and Comparable Nonveterans from the National Survey on Drug Use and Health, 2007 Psychological Services Vol. 4, Number 3, at 149.

[22] Golub

[23] Teeter at 72.

[24] Golub

[25] Teeter at 72.

[26] Id.

[27] Id.

[28] Id.

[29] They cannot offer this treatment for cocaine or marijuana-based SUDs because there is no FDA approved treatment for these SUDs.

[30] See Teeter at 72.

[31] US. Department of Veteran Affairs, https://www.mentalhealth.va.gov/res-vatreatmentprograms.asp (last visited Aug. 22, 2020).