Innovation and the Military

Summer 2018 M-VETS Student-Advisor Matt Sim

The United States military is no stranger when it comes to innovation. Some of the greatest technological innovations in human history had their beginnings in the military.  And many of those have come to take place in our everyday lives as well.  Just to name a few, we have the microwave, GPS, digital cameras, and the duck tape![1]  Now, who hasn’t used the duck tape before?  Probably no one.  Of course, not all military inventions make you feel nice and fuzzy inside.  On August 9, 1945, the United States dropped a second atomic bomb on the city of Nagasaki, Japan.  The atomic bomb killed 45,000 people in Nagasaki.[2]

The United States certainly has not slowed down its pace in pouring money into defense science and technology.  Annual spending on defense science and technology has grown substantially over the past four decades from $2.3 billion in FY1978 to $13.4 billion in FY2018.[3]

When it comes to technology these days, we cannot talk about it without talking about intellectual property in tandem. Article I, Section 8 of the United States Constitution grants Congress the power to secure copyrights and patents.[4]  Section 8, Clause 8 states: “The Congress shall have Power … to promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[5]  Back in the days, they meant “science” to refer to copyrights and “useful Arts” to  patents.

On June 19, 2018, the United States Patent and Trademark Office issued patent number 10 million.[6]  That is a lot of patents.  As a former patent examiner, I am proud to say that there are a few patents out there with my name on them. So, with so many patents out there, there must be millions of people making money with their inventions.  But unfortunately, that’s not always the case.  Of 21 million patents in 2014, 95 percent of the patents failed to be licensed or commercialized.[7]  That is tough news for the inventors.  All the hard work they put into patenting brilliant ideas sometimes just sit idle or go to waste.  Maybe the inventors should actively pursue selling or licensing the patented ideas.  That is exactly what Mr. Adams tried to in 1941.

In United States v. Adams, Mr. Adams filed for a patent for a battery in 1941; Mr. Adams’ patent, U.S. No. 2,322, 210, was issued by the USPTO in 1943.[8]  Back in the 40s there had only been 2 million patents, compared to 10 million today.  The patent related to a nonrechargeable electrical battery; the battery was an improvement over the conventional batteries at the time because it didn’t use acids and did not generate dangerous fumes.[9]  In addition, it was relatively light and the capacity for generating current was exceptionally large in comparison to its size and weight.[10]  Mr. Adams decided to show the battery to the Army and Navy.  At first, the Army did not think the battery worked, but then in late 1943, at the height of World War II, the Army concluded that the battery was feasible.[11]  The Army entered into contracts with various battery companies and found the battery to be adaptable to many uses.  They decided that it did and entered into contracts to have it made.[12]  Surprisingly (?), the Army never notified Mr. Adams about it, but Mr. Adams found the Government’s use of his battery and requested for compensation.[13]  When Mr. Adams’ request was denied and got nothing from the Government, he sued the them in 1960.[14]  Mr. Adams sued the Government under 28 U.S.C. § 1498(a): “Whenever an invention … is used or manufactured by or for the United States without license … the owner’s remedy shall be by action against the United States in the United State Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture.”[15]

The Army probably knew that they weren’t supposed to use Mr. Adams’ invention without his permission.  It was pretty sneaky to start using Mr. Adams’ battery without telling him about it.  They just started to manufacture it as soon as they found out that it actually worked.  Interesting thing is that the Government tried to argue that there was nothing new about Mr. Adams’ battery because there was really no big change compared to old batteries.[16] Fortunately for Mr. Adams, the Court held that Adams’ battery “wholly unexpectedly” has shown advantages over other batteries while copying features others had discarded, and the Court also concluded that Mr. Adams’ battery was not obvious.[17]  The Court reasoned that the operating characteristics of the Adams battery have been shown to have been unexpected and to have far surpassed then-existing wet batteries.[18]  So, the Court found for Mr. Adams patent was valid and his claim against the Government was affirmed.[19]  I am not exactly sure how much Mr. Adams got paid, but I hope he got his fair share.

There is no doubt that the bond between the military and technology can never be separated. From drone pilots to cyber warfare, the pace that society is evolving with technology does not seem to slow down any time soon, and the militaries all around the world are evolving at a fast pace as well.  And securing technological information from other governments is becoming more important than ever.   As of 2017, according to the USPTO, there were 5,784 patents that you can’t see.[20] Those inventions are under “secrecy orders,” and we don’t know what they’re for.[21] “Patents covered by such “secrecy orders” may be restricted from export, made available only to defense agencies, or even classified.”[22]

In the case of the secrecy orders, the Government isn’t really trying to pull a fast one on the inventors like they did with Mr. Adams, but they’re telling them outright that they can’t use their patented inventions for the good of society. I do understand the Government’s position and the sensitivity of certain information in the patented inventions to a certain degree. However, when it comes to taking away a person’s constitutionally granted right, extreme caution must be exercised in order to maintain the right balance between the principles of natural rights and utilitarian ideals. Hopefully there aren’t too many inventors like Mr. Adams today.

[1] Adrian Willings, 27 Military technologies that changed civilian life, https://www.pocket-lint.com/gadgets/news/143526-27-military-technologies-that-changed-civilian-life (Last visited August 19, 2018).

[2] Karl T. Compton, If the Atomic Bomb Had Not Been Used, https://www.theatlantic.com/magazine/archive/1946/12/if-the-atomic-bomb-had-not-been-used/376238/ (Last visited August 19, 2018).

[3] Derek B. Johnson, Pentagon spending more on emerging tech, https://defensesystems.com/articles/2017/12/06/pentagon-emerging-tech-spend.aspx (Last visited August 19, 2018).

[4] U.S. Const. art I, §8, cl. 8.

[5] Id.

[6] Andrei Iancu, 10 Million Patents: A Celebration of American Innovation, https://www.commerce.gov/news/blog/2018/06/10-million-patents-celebration-american-innovation (Last visited, August 19, 2018).

[7] Daniel Fisher, The Real Patent Crisis Is Stifling Innovation, https://www.forbes.com/sites/danielfisher/2014/06/18/13633/#6352bcbe6f1c (Last visited, August 19, 2018).

[8] United States v. Adams 383 U.S. 39, 42 (1966)

[9] Id. at 43.

[10] Id.

[11] Id. at 44.

[12] Id.

[13] Id.

[14] Id.

[15] 28 U.S.C. § 1948(a) (1964).

[16] Adams, 383 U.S. at 48.

[17] Id. at 51.

[18] Id.

[19] Id. at 52.

[20] Arvind Dilawar, The U.S. Government’s Secret Inventions, https://slate.com/technology/2018/05/the-thousands-of-secret-patents-that-the-u-s-government-refuses-to-make-public.html (Last visited, August 18, 2018).

[21] Id.

[22] Id.

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

Summer 2018 M-VETS Student-Advisor Maurice Hinton

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

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

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

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

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

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

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

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

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

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

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

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

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

[1] https://longtermcarelink.net/article-2015-5-7-Vietnam-and-PTSD-40-Years-Later.htm

[2] https://longtermcarelink.net/article-2015-5-7-Vietnam-and-PTSD-40-Years-Later.htm

[3] Id.

[4] Id.

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

[6] 38 CFR 3.304§ 3.304(f)(3)

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

Veteran Educational Assistance Laws

Summer 2018 M-VETS Student-Advisor David Kaplan

Servicemembers’ education benefits are an important incentive tool for the United States government to recruit and retain highly qualified persons for the armed forced. Ever since the initial adoption of the Servicemen’s Readjustment Act in 1944 [1], the quality of servicemembers’ education benefits remain in flux as the national interest in servicemembers’ issues waxes and wanes. Servicemembers’ education benefits are an important tool for building national strength and allow a servicemember to build their own personal strengths. In turn, a servicemember who can adjust to civilian society after serving in the military is likely to become a highly productive member of the population that can continue to contribute to national strength in their own post-service era. [2]Subsequently, the United States government and the public interest clearly has a need to precisely calculate the quality of servicemember’s education benefits a servicemember should receive after successfully completing a period of Honorable service.

Today’s servicemembers have several options to choose from while in service or post-service. Tuition assistance is available to all servicemembers in good standing with their assigned military units[3], although not as servicemember friendly as it should be. For example, tuition assistance is not available to obtain a PhD or a JD which I think is counterintuitive and cuts against the national interest. Even those servicemembers attempting to obtain a Master’s degree are limited to 39 credits worth of assistance. (See Department of Defense Directive (DODD) 1322.8E, DODIs 1322.25 and 1322.19; see also AR 621-5). Tuition assistance does not cover 100% of the cost of credits at many schools because of tuition prices and lateral or second degrees are already excluded from tuition assistance. Given that a PhD and JD are higher levels of education than a Master’s, I have to seriously question why the United States government would not want its servicemembers to attain higher-level degrees while in the service. The military is hard pressed to meet its recruiting goals because of several factors: the economy [4], criminal history requirements, mental[5] and physical fitness[6] requirements all preclude a large portion of the population from serving in the military.

Expanding the tuition assistance program and allowing servicemembers to use tuition assistance for a PhD or JD would be a step in the right direction and is something clearly authorized under the scope of authority granted to Congress in the United States Constitution. Additionally, so long as the servicemember is seeking a higher-level degree, the upper limit for credit hours covered by tuition assistance should be the amount required for the degree plus ten percent. Admittedly there are other options for a servicemember to obtain a degree, but tuition assistance is the most accessible and widely available to all servicemembers in good standing within their respective military units. Additionally, expanding tuition assistance would likely help those currently serving who’ve exhausted their GI Bill benefits obtaining a bachelors or who run out of GI Bill benefits mid-way through a PhD or JD program.

Expanding tuition assistance to all servicemembers in good standing for all upward degree progression without excluding PhD’s and JD’s is only one piece of the puzzle to help aid recruiting and retention. The Post 9/11 GI Bill is a significant improvement over its predecessor the Montgomery GI Bill. Part of the improved benefits of the Post 9/11 is the servicemember’s ability to shift the education benefit to a family member which comes with limitations. At the current time, the Department of Defense in a news release dated 12 July 2018[7] announced a policy reducing the transferability of the Post 9/11 education benefit, believing the benefit belongs to the servicemember specifically. Department of Defense officials cite a need to retain servicemembers. Once the benefit is transferred, the servicemember generally must continue serving for another four years from the date of the election in order for the election to be effective. [8] Servicemembers with more than 16 years of service are prohibited from transferring the GI Bill benefit. [9]

Given that people generally have freedom of choice so long as their choices are lawful, there is no good reason to limit a servicemember’s ability to transfer their earned education benefit to others. Once the servicemember successfully completes each enlistment contract honorably, their benefit has been re-earned after each period of service. To deny a person with more than 16 years of service the ability to transfer their benefits is not going to benefit the military. Additionally, restrictions on whom may receive the transferred benefit should be removed. Unless a fraud occurs such as a servicemember attempting to sell or trade their Post 9/11 benefits for some other personal benefit such as cash, or other consideration, the servicemember should be unlimited in who the benefit is transferred to so long as the transfer is done willingly, knowingly and intelligently. Some ideas to ensure the GI Bill benefit is properly transferred include JAG counseling and/or waivers to be completed to ensure the transfer is willing, knowingly and intelligent. Servicemembers don’t always serve for their own individual benefit; many serve for friends, family members and the public at large, thus transferring the education benefit should not be restricted as much as it is currently restricted. Servicemembers who don’t have a family and don’t desire to attend higher education or already have higher education shouldn’t lose out on the opportunity to benefit another person closely related by familial ties or through friendship or otherwise.

The Government and the public may benefit more by enacting a looser policy should the servicemember choose to transfer their benefit to another designated party. The designated party receiving the transferred education benefits gains the ability to obtain an education they may not otherwise be able to obtain, and the veteran still has their own years of service worth of experience which may be as valuable or more valuable than the potential to gain a post-secondary education. In effect the Government and the public gain two persons with enhanced capability to contribute to society whether thru public service or within private industry.

There is no one size fits all solution to servicemembers’ education benefits; however, legislators, the Secretary of Defense, service Chiefs for each respective branch and policy sharks should continue to explore different possibilities to create the environment where servicemember education benefits more widely available, more transferable and give more choice to the servicemember where possible. After all, it is the servicemember the public is interested in recruiting and retaining. To focus on one and not the other is a lack of foresight and will likely lead to an unbalanced force. Continuing to accept the status quo also leads to stagnation in ideas and does not serve to further the goals of the military, in this blog, namely recruiting and retention of servicemembers. For these reasons, the tuition assistance and Post 9/11 GI Bill programs should be expanded as I have articulated in this blog.

[1] Enacted June 22, 1944 by President Franklin Delano Roosevelt during World War II, the Servicemember’s Readjustment Act of 1944 enabled 2.3 million veterans to attend colleges and universities, 3.5 million received school training and 3.4 million received on-the-job training. In all, $14.5 billion was dispersed for education and training benefits through 1956. https://www.ourdocuments.gov

[2] The number of persons with bachelor’s degrees in the United States increased from 4.6% to 25% from 1945 to 50 years later and the number of persons with any degree doubled.

[3] See Department of Defense Instructions (DoDI) 1322.25

[4] Warner, John T., The Eleventh Quadrennial Review of Military Compensation, Chapter 2

[5] Vanden Brook, Tom, Army says USA TODAY story forced it to drop plans for waivers for high-risk recruits, USA Today 11/12/17 (implying that the Army was allowing mental health waivers to meet recruiting goals before rescinding policy allowing)

[6] Michaels, Jim, Physically fit recruits for Army are hard to find, USA today 01/10/18

[7] https://www.defense.gov/News/News-Releases/News-Release-View/Article/1573168/pentagon-announces-changes-to-post-911-gi-bill/

[8] Id.

[9] Id.

Missing in Action: Will We Ever Know the Truth Behind the Vietnam Live-POW Claims?

By Spring 2018 M-VETS Student-Advisor Steven Brantley

In February of 1994, almost 20 years after the end of American involvement in the Vietnam War, President Bill Clinton lifted the decades-old trade embargo that the United States of America had in place on the Socialist Republic of Vietnam.[1]  Shortly thereafter, in August 1995, President Clinton officially restored full diplomatic relations between the two nations.[2]  Although these moves were praised by many American companies eager to do business in Vietnam, as well as some Vietnam Veterans, including a few prominent politicians from both sides of the political aisle, the move was largely opposed by scores of other Vietnam Veterans, their families, congressmen, and veterans’ organizations such as the American Legion.[3]  Central to this opposition were the many unresolved questions surrounding the fate of thousands of American servicemen still listed by the Pentagon as Missing in Action (“MIA”) or Prisoners of War (“POWs”) during the Vietnam War.[4]  Those opposed to President Clinton’s restoration of full ties with Vietnam did not believe that this longtime foe had been fully honest and forthcoming in accounting for the fate of all American POWs believed to be in Vietnamese hands at the time of the American military’s withdraw from Vietnam.[5]  Further, many contended that hundreds of American POWs were never released at the end of the War, and continued to be held in Vietnamese captivity for years after.[6]

Then, in 2016, while on a state visit to Hanoi, Vietnam, then-President Barack Obama announced that his administration was lifting the nearly five-decades-old U.S. arms embargo on Vietnam.[7]  The lifting of this embargo allowed the communist government of Vietnam, with whom the United States fought a prolonged, bloody war in the not too distant past, to purchase the same high-tech American military aircraft, ships, and other weaponry available to longtime American allies in the region such as The Philippines, Singapore, and Taiwan.[8]  In fact, defense industry sources have already reported that Vietnam is very interested in acquiring surplus American F-16 fighter jets and Orion sub-hunter aircraft.[9]  When the decision to lift the arms embargo was announced, there was palpable concern among many members of Congress, who would be called upon to approve any such future arms sales to this foe turned friend.[10]  Several members of Congress expressed concern that, with the lifting of the arms embargo, President Obama had removed America’s one remaining bargaining chip to force Vietnam’s government to improve its human rights record, which has been at best questionable since the end of the Vietnam War.[11]  Largely missing from this congressional discussion however, was any concern over resolving the decades-old claims by many Vietnam-era servicemen and politicians that, when direct American involvement in the Vietnam War came to an end in 1973, hundreds of live American POWs were left to languish in Vietnamese prison camps.[12]  Despite this apparent congressional indifference, the mystery of live American POWs left behind in Vietnam, or, rather, held back by the Vietnamese government at the end of the War, has persisted since the end of the War and continues to have a dedicated following among many Vietnam Veterans and their families.[13]

In the early 1990s, just before the normalization of relations between the United States and Vietnam, 2,202 United States servicemen were still officially listed as missing in Southeast Asia as a result of the war fought between the two nations in the 1960s and early 1970s.[14]  Among this number were approximately 135 American servicemen who, at the conclusion of American involvement in the Vietnam War in 1973, were listed as being held captive by what was then North Vietnam.[15]  Although this number has been somewhat whittled down over the years, the question as to the whereabouts of most of these service members persists to this day.[16]

Inseparable from the question of whether any American servicemen were held back by the Vietnamese government at the end of the War is the question of why the Vietnamese would do such a thing.  Practically speaking, it would have been much easier for the Vietnamese to simply release all American POWs in their captivity at the end of the War, or, as tragic as this sounds, quietly kill and bury any POWs that, for whatever reason(s), the Vietnamese did not want to acknowledge holding.[17]  One of the most prominent and credible theories for why the Vietnamese might have held onto a select number of POWs is that, after the War, Vietnam planned on seeking war reparations from the Nixon Administration, with some even insinuating that President Nixon secretly promised such reparations-for-prisoners during the Paris Peace Talks that preceded the end of the War.[18]  Further, another often-touted theory involves the Vietnamese government sending American POWs to their allies in the Soviet Union, Eastern Europe, and North Korea to share with these allied powers the POWs’ knowledge of American military tactics and weapons systems.[19]

Regardless of the Vietnamese government’s reason for holding back live American POWs after the War’s end, this theory continued to persist well after the War, and even continues to this day.[20]  This notion of American POWs left behind in Vietnam has risen to mythical or cult-like status in some circles, even inspiring action movies starring the likes of Sylvester Stallone and Chuck Norris.[21]  However, many other people who continue to espouse this belief are arguably both very knowledgeable and credible sources.[22]  In the early 1990s, after the fall of the Soviet Union, Russian President Boris Yeltsin confirmed that and undisclosed number of American POWs were shipped to the Soviet Union from Vietnam, and continued to be held in Soviet prisons long after the end of the Vietnam War.[23]  This claim by the Russian president added credibility, because, at the time, many high-ranking U.S. government officials already acknowledged that the Soviet Union had done this with Americans captured in other Cold War hot spots, such as the Korean Peninsula.[24]  Additionally, Command Sergeant Major (ret.) Eric L. Haney, a founding member of the elite U.S. Army Delta Force special operations group and current highly-regarded security and international affairs consultant, shared publicly that he believes American POWs were left behind in Vietnam after the War’s end.[25]  Haney stated that in the early 1980s he and his fellow Delta Force operators had reliable intelligence on the location of American POWs still alive in Vietnam, and were, on several occasions, days or even hours away from launching a rescue operation, only for the mission to be scrubbed at the last minute each time.[26]  Further, Haney has even stated that, long after the War’s end and these abandoned rescue attempts, he was asked very candidly by a senior Vietnamese politician why the Americans never tried to secure the release of their remaining POWs after the War.[27]  Finally, in the early 1990s, two United States Senators, John Kerry (D-MA) and Bob Smith (R-NH), both Vietnam Veterans themselves, each stated publically that there was strong evidence American POWs had remained in Vietnamese captivity after the War.[28]  The senators made these statements after being part of an intense Senate investigation into the Vietnam POW/MIA issue, in which a senate select committee issued a detailed report that “held out the possibility that some U.S. soldiers had languished in [Vietnamese] hands for at least a period of time after the hostilities ended.”[29]  Senator Smith even went so far as to say that he believed “that POWs and MIAs have been alive, or were alive [in Vietnam], up through 1989.”[30]

To this day, these claims remain largely unrefuted.[31]  When President Obama announced the lifting of the long-standing arms embargo on Vietnam in 2016, there was noticeable opposition from many Vietnam Veterans and veterans’ organizations, who cited these yet to be resolved POW claims in their opposition to the lifting of the arms embargo.[32]  However, as noted in the second paragraph above, opposition over the POW/MIA issue among members of Congress was conspicuously absent.[33]  This congressional opposition, or rather lack thereof, is extremely important, as it is members of Congress who are responsible for approving any future arms sales to America’s once bitter foe.[34]  Although the anti-Vietnam sentiment in Congress has mostly diminished, having been replaced with the desire to further open up emerging Vietnamese markets to American businesses,[35] and concerns over checking China’s rise as a military power in the region,[36] these new political priorities should not take away from the concerns of those Americans, however few, who still do not have a definitive answer as to the fate of their husbands, sons, brothers, and fellow soldiers.  Were these American servicemen really left behind, or was the thought of those left behind eventually returning a way for many to hold onto some hope in what was a lost war?  In either case, hopefully, if and when Congress is called upon to approve a major arms sale to the Socialist Republic of Vietnam, Congress will use what little bargaining power it has left and find the courage to finally demand a full accounting for all American servicemen that may have been left behind at the end of the Vietnam War.

[1] Alison Mitchell, Opening to Vietnam, The Overview; U.S. Grants Full Ties, Time for Healing, Clinton Says, NY Times (July 12, 1995), https://www.nytimes.com/1995/07/12/world/opening-vietnam-overview-us-grants-vietnam-full-ties-time-for-healing-clinton.html.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] See, e.g., Robert Tait, Phillip Sherwell, Obama urged to press Vietnam over ‘missing’ US prisoners during historic visit, The Telegraph (May 21, 2016), https://www.telegraph.co.uk/ news/2016/05/21/obama-urged-to-press-vietnam-over-missing-us-prisoners-during-hi/.

[7] Krishnadev Calamur, The End of the U.S. Arms Embargo on Vietnam, The Atlantic (May 23, 2016), https://www.theatlantic.com/international/archive/2016/05/vietnam-arms-embargo/483872/.

[8] See Luong Thai Linh, US-Vietnam Relations Take Next Step as Arms Embargo Lifted, Newsweek (May 23, 2016), http://www.newsweek.com/vietnam-arms-embargo-lifted-462782.

[9] Wendell Minnick, Vietnam May Request F-16s, P-3 Orions From US, Defense News (May 25, 2018), https://www.defensenews.com/global/asia-pacific/2016/05/25/vietnam-may-request-f-16s-p-3-orions-from-us/.

[10] Id.

[11] Id.

[12] See Tait, et al., Supra n.6.

[13] Id.

[14] See Mitchell, Supra, n.1.  

[15] No Evidence Found of POWs in Vietnam, CQ Almanac (1992), http://library.cqpress.com/cqalmanac/document.php?id=cqal92-1108641.

[16] Id.

[17] See Tait, et al., Supra n.6.

[18] See, e.g., Barbara Crossette, POWs Were Left, Top Aides Believe, NY Times (Sept. 9, 1992), https://www.nytimes.com/1992/09/22/world/pow-s-were-left-top-aides-believed.html; Tait, et al., Supra n.6.

[19] See, e.g., Doyle McManus, Stephanie Grace, Some Vietnam POWs May Be Alive in Russia, LA Times (Jun. 16, 1992), http://articles.latimes.com/1992-06-16/news/mn-472_1_vietnam-war.

[20] See Tait, et al., Supra n.6.

[21] See id.

[22] See, e.g., John Lancaster, US Baffled by Yeltsin’s POW Disclosure, The Washington Post (Jun. 17, 1992), https://www.washingtonpost.com/archive/politics/1992/06/17/us-baffled-by-yeltsins-pow-disclosure/d20184a6-4fb8-495d-ab70-2c1b51d23a43/?utm_term=.d3ca5feb5e2d.

[23] Id.

[24] See id.

[25] Eric L. Haney, Inside Delta Force, 314-321 (Delacorte Press, 2002).

[26] Id.

[27] Id.

[28] See No Evidence Found of POWs in Vietnam, CQ Almanac (1992), http://library.cqpress.com/cqalmanac/document.php?id=cqal92-1108641.

[29] Id.

[30] Id.

[31] See Tait, et al., Supra n.6.

[32] Id.

[33] Dan Boyer, Obama lifts ban on selling U.S. arms to Hanoi in a bitter irony for Vietnam veterans, The Washington Times (May 22, 2016), https://www.washingtontimes.com /news/2016/may/22/obama-weighs-selling-us-arms-to-hanoi-in-bitter-ir/.

[34] Id.

[35] See, e.g., Calamur, Supra n.7.

[36] See Boyer, Supra n.33.  

VETREPRENEURSHIP: Making the American Dream a Reality for Military Veterans

By Spring 2018 M-VETS Student-Advisor David A.L. Brown

For many recruits to the U.S. military, one of the principal motivations for serving is the promise of success in a post-military career. We’ve heard from commercials, pamphlets, professional conferences, and in countless anecdotes that the military builds the character and skills necessary to be successful leaders in business.[1] Several Fortune 500 companies boast military veterans as CEOs, founders, or presidents—including Nike’s Phil Knight, FedEx’s Frederick Smith, Verizon’s Lowell McAdam, and Johnson & Johnson’s Alex Gorsky.[2]  However, even after accounting for the country’s decreasing percentage of military veterans since World War II, Post-9/11 veterans appear to be starting fewer businesses than their counterparts in previous generations.

A recent article in Slate claims that nearly half of America’s World War II veterans “went on to own or operate” their own businesses, citing a 2013 study conducted by the Institute for Veterans and Military Families (IVMF) at Syracuse University.[3] According to the same study, over 40% of veterans of the Korean War became entrepreneurs following their separation from military service.[4] However, despite Post-9/11 conflicts representing the longest continuous period of military conflict in American history—including two simultaneous wars, for a combined 25 years of occupation—veterans of the Post-9/11 era are the least likely to own or operate their own businesses. Today, only 4.5% of Post-9/11 veterans are “self-employed,” according to the U.S. Bureau of Labor Statistics.[5]

Some suggested causes for this steep decline include the decline of the U.S. manufacturing industry, as military leaders often transitioned into plant foremen or assembly line supervisors while they accrued the skills necessary to start their own businesses. Others point to the decline in small retail businesses (commonly known as ‘Mom & Pop Shops”) in favor of ‘big box’ corporate retailers. Another answer lies in the increasing divide between professional military skills and the rapidly-advancing state of corporate technology, leaving veterans trained by the military in fields from logistics to office administration to medical trauma response at a disadvantage compared to civilian counterparts more experienced with the software, hardware, and tools employed in the private sector.

Most significantly, however, start-up costs for a new business today appear to be substantially higher than they were for a veteran leaving the service in generations past, given disproportionate increases in the prices of everything from real estate to motor vehicles to business insurance compared to the buying power of the U.S. dollar in previous generations. According the U.S. Department of Commerce’s Minority Business Development Agency, the average cost of a new start-up in 2009 was estimated at “just over $30,000.”[6] Adjusted for inflation, $3,577.75 in 1960 had the equivalent buying power of $30,000 today,[7] in an economy where the median house cost less than $12,000; meanwhile, the median cost of an American home today is approximately $200,000.[8] Furthermore, World War II- through Vietnam-era veterans enjoyed a G.I. Bill which included fixed-rate low-interest loans for small business start-ups, a feature prominently missing from the 1984 Montgomery and Post-9/11 G.I. Bills.

Post-9/11-era veterans interested in starting their own businesses must know how to generate this start-up capital in order to be successful in a world where their dollars simply don’t go the distance that previous generations enjoyed. Fortunately, one little-known arm of the federal government can act as a one-stop shop for veteran entrepreneurs: the U.S. Small Business Administration (SBA).

The U.S. Small Business Administration offers several programs designed to enable veterans to own and operate their own businesses. Through its Express Loan Program, the SBA guarantees private loans up to $350,000 for entrepreneurs who cannot secure funding elsewhere, protecting private lenders from default while enabling new entrepreneurs to secure funding for their business start-ups, in exchange for a guaranty fee dependent on the size of the loan itself. Veterans may also take advantage of the SBA Veterans Advantage Program, which reduces or negates guaranty fees for loans secured through the SBA for businesses that are at least 51% veteran-owned.

The SBA also operates sixteen Veterans Business Outreach Centers (VBOCs), which offer assistance to veteran entrepreneurs in the form of free business counseling services. SBA also offers the Boots to Business program, located on military installations as part of the DoD’s Transition Assistance Program. Boots to Business offers classroom-style training in entrepreneurial basics such as market research, business fundamentals, and revenue recording and reporting. Women veterans may also take advantage of special partnership programs in which the SBA participates, including the Veteran Women Igniting the Spirit of Entrepreneurship (V-WISE) training program at Syracuse University’s Institute for Veterans and Military Families. V-WISE includes business training, mentorship, and offers membership in a supporting network of professionals and fellow entrepreneurs personally and professionally invested in the success of women veteran-owned business start-ups.

Since the removal of fixed-rate business loans from the G.I. Bill, the U.S. Small Business Administration has supplanted the Department of Veterans Affairs in providing critical start-up assistance to veteran-owned businesses, and should be the first stop for any would-be veteran entrepreneur. Further information on business assistance through the SBA can be found here: https://www.sba.gov/business-guide/grow-your-business/veteran-owned-businesses.

[1] See, e.g., Chris Gosselin, Why America’s Veterans Make the Best Entrepreneurs, Fortune.com (Nov. 11, 2016), available at http://fortune.com/2016/11/11/veterans-day-leadership-ceo/ (last visited May 18, 2018).

[2] See, e.g., Alex Lockie, 15 Fortune 500 CEOs Who Got Their Start in the Military, Business Insider (Aug. 26, 2015), available at http://www.businessinsider.com/15-fortune-500-ceos-who-got-their-start-in-the-military-2015-8 (last visited May 17, 2018).

[3] Kimberly Weisul, Half of World War II’s Veterans Started Businesses. Less than 5 Percent of Today’s Veterans Do., Slate.com (Oct. 4, 2016), available at http://www.slate.com/blogs/moneybox/2016/10/10/fewer_veterans_are_becoming_entrepreneurs_a_lot_fewer.html (last visited May 18, 2018).

[4] See Veteran Entrepreneur Fact Sheet, Bunker Labs, available at https://bunkerlabs.org/wp-content/uploads/2016/11/Veteran-Entrepreneurship-Fact-Sheet_Nov-27-2016.pdf (last visited May 18, 2018).

[5] Steven F. Hipple & Laurel A. Hammond, Self-Employment in the United States, U.S. Bureau of Labor Statistics (Mar. 2016) p. 10, available at https://www.bls.gov/spotlight/2016/self-employment-in-the-united-states/pdf/self-employment-in-the-united-states.pdf (last visited May 18, 2018).

[6] Minority Business Development Agency, How to Estimate the Cost of Starting a Business from Scratch, U.S. Dep’t. of Commerce (Nov. 25, 2011), available at https://www.mbda.gov/news/blog/2011/11/how-estimate-cost-starting-business-scratch(last visited May 18, 2018).

[7] Value generated using the inflation calculator at DollarTimes.com, available at https://www.dollartimes.com/inflation/inflation.php?amount=3577.75&year=1960 (last visited May 18, 2018).

[8] Emmie Martin, Here’s How Much Housing Prices Have Skyrocketed Over the Last 50 Years, CNBC.com (Jun. 23, 2017), available at https://www.cnbc.com/2017/06/23/how-much-housing-prices-have-risen-since-1940.html (last visited May 18, 2018).

Opioid Crisis

By Spring 2018 M-VETS Student-Advisor

Much has been made of what has been variously termed the “opioid crisis” and the “opioid epidemic” by politicians and the mainstream media. And for good reason. In 2016, more than 42,000 Americans died of opioid overdose,[1] a 28% increase compared to 2015.[2] The number of annual deaths has increased every year since the CDC began keeping statistics on opioid-related deaths in the 1990s.[3]

How did we get to this point, where it’s practically expected that opioid drugs will take the lives of enough Americans this year to fill a Major League Baseball stadium?

The problem can be traced back to the 1990s, when the medical community and the pharmaceutical industry vastly underestimated the addictiveness of opioid painkillers.[4] Doctors then began to prescribe opioid painkillers at a greater rate.[5] By the time the medical community realized that the drugs were indeed highly addictive, dispersion and misuse of opioids had become widespread, and overdose rates began to skyrocket.[6] By 2015, an estimated 2 million Americans suffered from a substance use disorder related to prescription opioids.[7]

The federal government has engaged in a lot of talking about the opioid epidemic. On March 27, 2017, President Donald Trump announced a special commission to investigate the opioid crisis and provide recommendations to the White House.[8] The commission’s final report contained 56 recommendations, which included streamlined bureaucracy and collaboration with states and private entities.[9] On October 26, 2017, President Trump declared the opioid crisis to be a national health emergency.[10] On March 1, 2018, President Trump hosted a summit on the crisis, during which he spoke with recovery and prevention experts as well as members of the law enforcement community.[11]

Not to be outdone, Congress also has had a lot to say on the issue. In April 2018, Congress returned from recess with a full slate of bills on the agenda designed to address the crisis. The Senate was busy on the Opioid Crisis Response Act of 2018, which included many of the programs and initiatives being considered by the White House.[12] In the House, nearly three dozen opioid-related bills had been filed and were awaiting markup in committee.[13]

America’s veterans compose the group that has been most devastated by the opioid crisis. According to a statement by a VA official before the Senate, 60 percent of veterans who return from active service experience chronic pain; this figure is double the proportion of the general population.[14] Given the high incidence of pain among veterans combined with an overburdened VA and the recent emergence of opioid painkillers as the go-to treatment for chronic pain, opioids quickly became the norm for veterans returning home from action in the post-9/11 Middle East.[15] As a result, the number of veterans addicted to opioids rose 55 percent between 2010 and 2015, to a total of 68,000, or approximately 13 percent of the total population of veterans taking opioids.[16]

Veterans are uniquely susceptible to opioid addiction. Many veterans return home with PTSD as a result of the toll taken by combat on the human psyche. Those who suffer from PTSD often turn to alcohol or drugs as a means of coping.[17] With such a high percentage of the veteran population receiving opioids for their pain, there is considerable overlap with PTSD cases, and a vicious cycle often develops.[18]

The enormity of the opioid crisis may seem bewildering to those bound to fix it. Where does one begin to tackle such a problem? One solution that may appear obvious is to start with veterans, for a number of reasons. First, as discussed above, opioid addiction is disproportionately prevalent among veterans relative to the population at large. Second, any problem that afflicts veterans on such a scale deserves our attention, given the debt of gratitude we owe to each of them. Third, as a healthcare and treatment organization run exclusively by the federal government, the VA is uniquely situated to serve as a laboratory for what works and what doesn’t in addressing the opioid epidemic at large.

A glimpse of what this might look like has already been provided by the Louis Stokes Cleveland VA Medical Center, a VA facility in Cleveland, Ohio, which has developed “a culture . . . of evidence-based tests and practices of opioids for over a decade.”[19] Only 3 percent of the Cleveland VA’s patients are prescribed opioids to treat their pain.[20] This rate, the lowest in the country, is due, in addition to the steps taken as part of the overall VA-mandated push to reduce opioid prescriptions, to “a mix of available resources and educating care providers on how best to prescribe opioids.”[21]

According to Dr. Ali Mchaourab, Chief of Medicine, the facility’s success in fighting opioid dependence has been achieved because its “providers, from primary care to the most specialized, have so many tools and so many things available to them, including complementary alternative medicine, advanced technology, surgeries—anything and everything that’s available in science, is available at the Cleveland VA.”[22] In addition, the Cleveland VA’s 13-member pain management team has embraced the philosophy that investment of time is necessary to properly care for their patients.[23] Thus, rather than handing out a bottle of pills, the team ensures that each patient sits down with a psychologist and a physician for as long as necessary to “understand the patient.”[24] The team also looks for innovative ways to use technology to stay up to speed on ways to treat pain without resorting to opioids.[25]

To stop the opioid epidemic, we have to start somewhere. The VA could be the place. Through new partnerships, uniform standards for painkiller prescription, smart allocation of budgetary resources, and the kind of good, old-fashioned hard work seen in Cleveland, the VA may be perfectly positioned to provide America with the blueprint on how to defeat this crisis.

[1] Christopher Ingraham, CDC Releases Grim New Opioid Overdose Figures: ‘We’re Talking About More Than an Exponential Increase’, Washington Post Wonkblog (Dec. 21, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/12/21/cdc-releases-grim-new-opioid-overdose-figures-were-talking-about-more-than-an-exponential-increase/?noredirect=on&utm_term=.eaa4206a4f8e.

[2] Id.

[3] Id.

[4] Opioid Overdose Crisis, https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis (last visited May 19, 2018).

[5] Id.

[6] Id.

[7] Id.

[8] The White House, Trump Administration Response to the Final Recommendations of the President’s Commission on Combatting Drug Addiction and the Opioid Crisis, 1 (2017).

[9] Id.

[10] President Donald J. Trump is Taking Action on Drug Addiction and the Opioid Crisis, https://www.whitehouse.gov/briefings-statements/president-d https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-taking-action-drug-addiction-opioid-crisis/Donald-j-trump-taking-action-drug-addiction-opioid-crisis/ (last visited May 19, 2018).

[11] President Donald J. Trump Is Combatting the Opioid Crisis, https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-combatting-opioid-crisis/ (last visited May 19, 2018).

[12] Sarah Karlin-Smith, Congress Comes Back to a Raft of Opioid Bills, Politico, Apr. 9, 2018.

[13] Id.

[14] Statement of Dr. Carolyn Clancy, M.D. Interim Under Secretary for Health Veterans Health Administration (VHA) Department of Veterans Affairs (VA) before the Cmte. on Veterans’ Affairs, United States Senate, 2 (2015).

[15] Ken Blaker, Bandaging Veterans’ Pain with Opioids Is Proving Deadly, Must Stop, Observer, http://observer.com/2017/11/high-risk-for-opioid-abuse-veterans-become-fatalities-of-overprescription/ (Nov. 16, 2017).

[16] Sarah Childress, Veterans Face Greater Risks amid Opioid Crisis, Frontline, https://www.pbs.org/wgbh/frontline/article/veterans-face-greater-risks-amid-opioid-crisis/ (Mar. 28, 2016).

[17] Sonia Tagliareni, Veterans and Addiction, DrugRehab.com, https://www.drugrehab.com/addiction/veterans/ (May 11, 2018).

[18] Id.

[19] James Clark, The Best Effort to Fight Opioid Addiction May Be at This VA Hospital in the Center of America’s Epidemic, Task & Purpose, https://taskandpurpose.com/va-opiate-prescription-rates/ (Jan. 15, 2018).

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

 

The Most Bang for Your Buck: Are the United States Military Academies the Most Cost-Effective Way of Producing Officers?

By Spring 2018 M-VETS Student-Advisor

The United States Military Academies are hallowed institutions in American culture. Most Americans can name West Point, the Naval Academy, and the Air Force Academy off the top of their heads, and these schools are often mentioned in the same breath as Ivy League institutions. The graduates of the academies include Presidents Dwight D. Eisenhower and Ulysses S. Grant, most of the major generals of the American Civil War, including Robert E. Lee, William Tecumseh Sherman, George McClellan, and “Stonewall” Jackson, sci-fi author Robert Heinlein, and numerous others. To be accepted to one of the service academies is seen as an incredible achievement, let alone graduating from one, and sets young men and women on the path to becoming one of America’s most trusted and respected members: a United States military officer. What most Americans don’t know is that America’s service academies turn out less than one fifth of the nation’s new officers each year[1] but spend four times more per new officer than a typical ROTC (Reserve Officer Training Corps) program and eight times more than typical OTS (Officer Training School) graduates.[2] The key questions then are: (1) why do the academies cost so much more than alternatives like ROTC, Direct Appointment, or OTS, and (2) is that increased spending justified?

The enormous expense in training academy cadets is easy to see. All cadets attending a United States service academy receive a full scholarship in exchange for a mandatory commitment to serve in the United States military following graduation. In addition to paying for the cadets’ tuition, the academies also cover the cost of textbooks and materials[3] and pay each cadet a monthly stipend or allowance of more than $800.[4] Based on these expenses, it’s understandable that the total cost per cadet at a service academy was estimated by the United States General Accounting Office at roughly $300,000.[5]

In contrast, while some ROTC cadets receive partial or full scholarships to their respective educational institutions, many do not. Some ROTC cadets receive living-expense stipends, but most do not and do not have the cost of their books or materials covered by the military. Because of these and other factors, the Tench Francis School of Business found that the academies spent four times as much on their cadets as ROTC programs and eight times as much as OTS cadets, who endure a condensed training program over a few months before commissioning as officers.[6]

If the academies are covering all expenses for cadets, essentially giving their students a “golden ticket,” that expenditure should be justified in the product the academies turn out. No one would seriously question that the academies turn out exemplary officers, but one would reasonably expect the academies to turn out officers superior to those who go through ROTC or OTS, given the sharp increase in spending on academy cadets. It would be fair to expect academy-graduate officers to surpass their peers in quality of performance, quantity of officers, or longevity of military careers, however the facts do not support these conclusions.

In terms of rates of promotion and career longevity, while academy graduates used to outstrip their peers, ROTC and OTS graduates are now staying in the military for longer periods of time and reaching flag-officer level at similar rates as their service academy counterparts.[7] In their analysis, the Tench School of Business concluded that “[d]ifferences in career progression between the three main commissioning sources were indistinguishable in the GAO Report. Ultimately, the quality indicators do not reveal any significant difference between commissioning sources. Thus, the tangible benefits from each program are exceptionally similar.”[8]

While ROTC, Direct Appointment, and OTS program graduates make up an increasing percentage of the military’s active duty officer numbers, active-duty training to fill specialized roles can also be very expensive, so if academy graduates stayed in the military longer than their counterparts, then the added expense could be justified. Walter Winfield Price III, a management consultant and former Navy officer who graduated from the Naval academy, stated, “That kind of longevity helps justify an academy education, especially considering the expensive training most junior officers undergo after college. […] When you look at the cost of educating a fighter pilot or a nuclear submariner – both of which outweigh the Naval Academy education – you want them to stay[.]”

According the GAO report referenced by the Tench Francis School of Business’s analysis, “only about a 6% higher retention rate has been measured for service academy graduates after 15 years of active duty, when compared to ROTC and OCS Graduates.”[9] While initial expenditures on cadets might be justified if the resulting officers remained in the military significantly longer, the slight increase in career duration likely does not justify the academies’ fourfold or eightfold increase in spending per cadet compared to ROTC and OTS.

If the service academies are only filling roughly twenty percent of the total officer requirements of the U.S. military, their graduates perform roughly as well as their counterparts from ROTC and OTS, and do not remain in the service significantly longer than their counterparts, are the academies a justifiable expenditure on the part of the federal government? Would it be fairer to take the money spent on one academy graduate and instead fund four ROTC cadets or eight OTS graduates? What is clear is that if the academies really do produce a comparable product for four to eight times the cost, something must be done to equalize the disparity or to justify the difference. Several potential solutions are discussed below.

The first option is simple and unlikely to be implemented: abolish the academies as an unjustifiable expenditure. Taking the “nuclear option” in this situation would mean abolishing the service academies and having ROTC and OTS absorb the officer production requirements. This option would certainly cut spending tremendously, but it leaves much to be desired in making effective use of the buildings, campuses, and resources of the institutions and honoring those academies’ history and legacy. To alleviate that issue, the academies could be turned into museums or sold off to let businesses or civilian universities take ownership of the sites. While these are feasible options, the backlash from the public, military, and alumni of the academies would make this set of options unappetizing and likely impracticable.

A second option would be to cut funding to the service academies dramatically. OTS graduates put themselves through college before ever entering military service. Many ROTC students do the same and even students on ROTC scholarships often have many additional living expenses that are not covered by taxpayer money. In short, many non-service academy cadets and midshipmen are working part-time jobs and taking out loans to make ends meet. The service academies could be forced to adjust their budget to provide for operational expenses rather than all-inclusive packages for each student. The drawback to this would be that it would be harder to recruit prospective students without the promise of a full-ride. Cadets and midshipmen may find that following the strict, often severe, rules of their service academy is not worth it if they are having to pay for the experience themselves. Essentially, this solution would likely make it significantly more difficult to recruit prospective students and would reduce the service academies to little more than a marginally more prestigious Virginia Military Institute or Citadel. This option would not fix the underlying systemic issue, namely that these institutions are not fulfilling any function that ROTC and OTS are failing to perform.

A third option would be to keep the service academies open for military specific training, but not for degrees. The academies could offer 8-week sessions where cadets from around the nation could attend Airborne, Air Assault, SOAR, SERE, and AFSC/MOS specific training. For example, cadets interested in Cyber could get a chance to attend an intensive designed with that AFSC in mind. Army cadets who have received the 11B Infantryman MOS could attend an 8-week Pre-Ranger course during their senior year prior to commissioning. Midshipmen could go to Annapolis to do anything from sailing to going through a SEAL screener. Some basic academic courses could continue to be offered to keep students on track for graduation.

Of these three potential solutions, it seems that the best course of action would be to turn the academies into sites for cadets and midshipmen from around the nation to receive military specific training and potentially earn a few academic credits. This would foster a greater sense of inclusivity at the service academies and allow for more in-training military personnel to benefit from using their facilities.

Military specific courses would be free to vary between the different service academies. Army cadets could take courses on ground navigation, small unit tactics, and convoy procedures. They could even earn their Airborne wings, Air Assault badge, or complete a Pre-Ranger course. Navy midshipmen could learn to sail, get acquainted with different vessels, and go through SEAL and SWCC screeners. Marine prospects could go through training as riflemen, get experience leading small platoons, as well as do urban combat and other training in austere locations. Air Force cadets could participate in SOAR and SERE programs. Intensives for AFSCs such as Cyber could also be created to teach interested cadets about what the job entails. This solution would allow for the service academies to remain operational while serving far more cadets. Additionally, research and experimental training could be conducted by the professors and instructors stationed at the academies.

Crucially, this solution would foster cohesion throughout the nation’s cadets and midshipman, eliminating any stigma attached to non-academy officers. The academies would no longer retain even the vestige of being an “old boys club,” with all the rumors of nepotism and backwardness that come with that reputation. But perhaps most importantly, this option would push forward the reality of the “citizen soldier” so central to the U.S. military. The military’s future officers would come from and be trained across the nation, exploring civilian life while preparing for military service, and every cadet and midshipman would see the academies as common ground, guaranteeing to every future officer an equal chance to experience and learn from the best military training the nation has to offer.

[1] Dep’t of Def., Population Representation 2010 – Active Component Commissioned Officer Gains, Defense.gov (2012), archived from the original on 26 June 2012, Retrieved 4 October 2017, available at, https://web.archive.org/web/20120626021140/http://prhome.defense.gov/RFM/MPP/ACCESSION%20POLICY/PopRep2010/appendixb/b_30.html.

[2] Comparative Analysis of ROTC, OCS and Service Academies as Commissioning Sources, Tench Francis Sch. of Bus. (Nov. 19, 2004), pages 1-3, available at https://cdn.shopify.com/s/files/1/0059/6242/files/tenchfrancisprose.pdf.

[3] Congressional Guide 2016, Admission to the United States Service Academies, pg. 25, available at https://www.westpoint.edu/admissions/shared%20documents/congressional%20guide%20(2016).pdf

[4] 37 U.S.C.A. § 203 (West), “(c) A cadet at the United States Military Academy, the United States Air Force Academy, or the Coast Guard Academy, or a midshipman at the United States Naval Academy, is entitled to monthly cadet pay, or midshipman pay, at the monthly rate equal to 35 percent of the basic pay of a commissioned officer in the pay grade O–1 with less than two years of service.”; U.S. Air Force Aca., Cadet Pay (Apr. 2009), available at http://www.usafa.af.mil/About-Us/Fact-Sheets/Display/Article/428296/cadet-pay/, (stating that, “U.S. Air Force Academy cadets earn $846 a month in basic pay.”; U.S. Mil. Aca., FAQ – Cadet Life, available at https://www.usma.edu/admissions/sitepages/faq_life.aspx, stating that “A first-year cadet earns more than $900 a month, and the amount increases each year.”

[5] U.S. Gen. Acct. Off., DOD Needs to Enhance Performance Goals and Measures to Improve Oversight of Military Academies (Sep. 2003), available at https://www.gao.gov/new.items/d031000.pdf.

[6] Tench Francis Sch. of Bus., supra note 2, at 1, citing a 1992 GAO Report.

[7] Id. at 1-2.

[8] Id.

[9] Id. at 3.

 

DOMESTIC VIOLENCE AND MILITARY FAMILIES

By Spring 2018 M-VETS Student-Advisor

Domestic violence is an important issue faced by many of our servicemembers in the United States military and their loved ones. It has become a focus of the Department of Defense as it seeks to raise awareness about this sensitive issue that has affected the lives of many of our military families.

It has been suggested that, after several years of decline, domestic violence may be on the rise in military households and may touch the lives of military families more often than those within civilian families.[1]  However, this could be attributed to an increase in awareness of domestic issues within the military and those who are willing to report incidents of domestic abuse.

Some theories suggest that the many unique stressors of military life may lead to the potential for domestic abuse in military families versus in the civilian population.[2]  These stressors include multiple deployments, long separations from family, combat exposure, and reoccurring relocations that come with military life.[3]  However, there is no conclusive reason or cause for domestic violence as it occurs in both military and civilian families and a vast majority of military families do not have any incidents of domestic violence.

While a significant number of victims are women, the problem is not just isolated to women. It is estimated that approximately one-third of domestic violence victims currently serving in the active duty military are men.[4] Out of an average of 8,000 complaints made to the military, approximately 2,500 involved male victims and female offenders.[5]

Additionally, many of the perpetrators of domestic abuse in military families are not servicemembers. According to the Department of Defense’s 2016 Report on Child Abuse and Neglect and Domestic Abuse in the Military, 40% of the perpetrators of domestic violence in military households were civilians.[6]  Therefore, there is no rhyme or reason when it comes to domestic abuse but attempting to identify triggers and raise awareness has been a concerted effort of the military.

One way to help combat domestic violence in the military is to continue to raise awareness about the issue. Often, victims are reluctant to come forward to report abuse for many reasons including fear of retaliation, fear of ruining a loved one’s military career, and the lack of resources for dependents.  With that in mind, the Department of Defense has implemented a Domestic Violence Awareness Campaign and suggests various ways to help promote awareness and prevention, including encouraging people to become active in their community and report suspected abuse.[7]

The Department of Defense has also implemented programs to assist those who suffer from the effects of domestic abuse and those who perpetrate the abuse, including the Family Advocacy Program (FAP). The FAP works to prevent domestic abuse through education and awareness programs.[8]  FAP offers classes, counseling, assistance in finding shelter, awareness campaigns, and coordinating with civilian agencies to help victims and their families.[9]  However, in order to get help to families in need, FAP and other advocacy groups promote awareness

Unfortunately, since the DoD’s jurisdiction in these matters usually covers active duty personnel and their families, services such as FAP are not generally available to reservists, national guard members, veterans or retirees.[10]  In those situations, family members must rely on local civilian agencies and groups for assistance.

If you are a victim of domestic abuse, know someone who is, or you are afraid you might hurt yourself or others, there is help out there and most importantly there is hope. Many military and civilian organizations are dedicated to assisting servicemembers and their families through times of family abuse.  And hopefully one day, the need for these programs will disappear as domestic violence declines.

The following are helpful resources to assist those in need:

  • The National Domestic Violence Hotline[11] (1-800-799-SAFE (7233)
  • MilitaryOne Source[12] (800-342-9647)
  • Real Warriors Live Chat[13] (866-966-1020),
  • and your local Family Advocacy Program are here to help.

[1] Nancy Montgomery, Reports of Family Violence, Abuse Within Military Rise, Stars and Stripes (July 10, 2011), https://www.stripes.com/reports-of-family-violence-abuse-within-military-rise-1.148815 https://www.military.com/spousebuzz/blog/2016/10/3-things-need-know-domestic-violence.html

[2] Lizanne Carlson, 3 Things You Need to Know About Military Domestic Violence, Military.com (October 28, 2016), https://www.military.com/spousebuzz/blog/2016/10/3-things-need-know-domestic-violence.html

[3] http://www.bwjp.org/our-work/topics/military-ipv.html

[4] Andrew Tilghman One-third of Domestic Violence Victims in Active Duty Military Families are Men, Military Times (August 27, 2014), also found at https://www.militarytimes.com/news/your-military/2014/08/27/one-third-of-domestic-violence-victims-in-active-duty-military-families-are-men/

[5] Id.

[6] http://download.militaryonesource.mil/12038/MOS/Reports/FAP_FY16_DoD_Report.pdf

[7] Donna Miles, Military Launches Domestic Violence Awareness Campaign, U.S. Department of Defense, (October 4, 2010), http://archive.defense.gov/news/newsarticle.aspx?id=61131

[8] http://www.militaryonesource.mil/-/the-family-advocacy-program

[9] Id.

[10] www.bwjp.org/our-work/topics/military-ipv.hmtl.

[11] The National Domestic Violence Hotline also found at http://www.thehotline.org/

[12] MilitaryOne Source also found at http://www.militaryonesource.mil/

[13] Real Warriors Live Chat also found at https://www.realwarriors.net/livechat

 

LAND OF OPPORTUNITY? THE AMERICAN DREAM BECOMES A NIGHTMARE FOR DEPORTED MILITARY VETERANS

By Spring 2018 M-VETS Student-Advisor

1U.S. military veterans who have been deported to Mexico are seen honoring fallen soldiers on Memorial Day in Juarez, Mexico. (Herika Martinez/AFP/Getty Images)

[1]The United States of America, a country formed by immigrants, is referred to as the “Land of Opportunity” where dreams of success can come true with hard work and perseverance. The U.S. military is one such opportunity for immigrants. Certain noncitizens are eligible to enlist in the military and are then able to pursue an expedited path to citizenship.  However, the potential consequences for veterans who have honorably served but have not been naturalized as citizens can be severe, with countless veterans deported each year. For these individuals, the Land of Opportunity ignores their contributions and service to the United States and forces them to leave the country they swore to defend.

Opportunities for Noncitizens to Join the Military

Section 504 of Title 10 of the United States Code (“U.S.C.”) establishes the citizenship and residency requirements for serving in all branches of the U.S. armed forces. Under 10 U.S.C. § 504(b)(1), a person may join the military if he is a citizen of the United States or a “lawfully admitted permanent resident,”[2] which is also referred to as a permanent resident alien, resident alien permit holder, or Green Card holder.

In addition to lawful permanent residents being eligible to join the U.S. military, in 2008, the Department of Defense (“DoD”) established the Military Accessions Vital to National Interest (“MAVNI”) program. This pilot program authorizes a limited number of “legally present” noncitizens, including refugees, asylees, and those in certain other non-immigrant categories, to join the military if they possess skills deemed critical, including health care skills and expertise in specified foreign languages.[3]

Under the statute and through programs like MAVNI, noncitizens can and do join the U.S. military. In fact, noncitizens have served in the U.S. military dating as far back as the Revolutionary War.  About 8,000 noncitizens join each year, and approximately 35,000 noncitizens are currently serving in an active duty status in the U.S. armed forces.[4]

Naturalization Opportunities for Noncitizens in the Military

Joining the military provides several benefits for noncitizens, including a fast-track to citizenship. The Immigration and Nationality Act (“INA”) includes special provisions that permit lawful permanent residents who have served in the U.S. armed forces to be naturalized as U.S. citizens through an expedited process.  Under the INA, most naturalization applicants must have continuously resided in the United States as a permanent resident for at least five years.  This requirement is waived for those who have served in the military.[5]  Further, the INA also waives the requirement that an applicant reside in the state in which the application for naturalization is filed for a minimum of three months.[6]  The naturalization process can be further expedited if the individual served honorably during a designated period of hostility,[7] including during the War on Terrorism from September 11, 2001, to the present.[8]

Additionally, the MAVNI program, described above, “allows certain non-citizens legally present in the United States to join the U.S. armed forces in exchange for immediate eligibility for U.S. citizenship.”[9] Individuals who join the military through MAVNI are eligible to apply for U.S. citizenship without first becoming lawful permanent residents.  “An individual who joins the armed forces through this program is able to move from nonimmigrant, asylee, refugee, or [Temporary Protected Status] directly to U.S. citizenship.”[10]

Prior to Fiscal Year 2018, one day of service in the military during a designated period of hostility was sufficient for a noncitizen to be eligible for expedited citizenship. However, on October 13, 2017, the DoD issued new policy that requires noncitizen applicants to first obtain a favorable background and security suitability determination, complete basic training, and serve for 180 consecutive days, or one year in a reserve component, and acquire an honorable characterization of service determination.[11]  While this is more burdensome than prior to the policy change, it still reflects a more expedited process for noncitizens with military service compared to other noncitizens.

Deportation of Veterans Who Have Not Been Naturalized

Under existing laws and policies, noncitizen veterans risk being permanently expelled from the United States if convicted of a crime. Immigration laws provide for deportation and permanent exile of a noncitizen who is convicted of an “aggravated felony.”  While this sounds like it only applies to the most serious of offenses, “an ‘aggravated felony’ does not require the crime to be ‘aggravated’ or a ‘felony’ to apply.”[12] Rather, under the INA, “aggravated felony” covers over 30 crimes – with the list regularly growing – and includes minor drug crimes and many non-violent misdemeanors such as tax evasion and failing to appear in court.[13]  Further, if Congress adds a new crime to the list of aggravated felonies, noncitizens who previously have been convicted of such crime become immediately deportable.[14]

The Supreme Court recently weighed in on the aggravated felony provision of the INA in Sessions v. Dimaya.  In a 5-4 decision, the Court determined that a “crime of violence” under the aggravated felony provision was unconstitutionally vague.[15]  Given the Court’s ruling, noncitizens can no longer be deported for being convicted of a “crime of violence,” defined as a felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”[16]  The decision seems like a win for noncitizens by limiting the types of crimes that may justify deportation, but it is not likely to have a significant impact on the number of noncitizens removed for committing violent offenses as there are several other violent crimes listed as aggravated felonies.  While the case has brought attention to the types of crimes that result in automatic deportation, the Court did not specifically address the less serious, non-violent offenses that are considered aggravated felonies under the INA, so those provisions remain valid.

In addition to being subject to deportation, an aggravated felony conviction also results in the individual becoming ineligible for most forms of relief from deportation, such as cancellation of removal and asylum.[17]  Further, noncitizens convicted of aggravated felonies become permanently ineligible from being readmitted into the United States in the future.[18]  And there is currently no exemption in the immigration laws and policies related to military service.  Therefore, it is possible for a misdemeanor conviction to result in permanent exile from the United States, even for an individual who has demonstrated loyalty to the nation through honorable service in the military.

Ironically, veterans who are deported after being convicted of an aggravated felony can only return to the United States upon their death.[19]  The Department of Veterans Affairs (“VA”) provides that all veterans, without regard to citizenship status or deportation, are entitled to burial at a national cemetery with a Government headstone or marker and full military honors.  The VA will even contribute up to $300 to return the deportee’s remains to the United States for burial.[20]  “Every deported veteran…may be welcomed back and honored as Americans in death, despite being banished from the United States in life.”[21]

While expedited citizenship is an option for noncitizens in the military, many are unaware of this option or commonly have the misconception that their military service automatically confers citizenship.[22]  “[T]he federal government failed to ensure that noncitizens in the military received accurate information about military naturalization.”[23]  The United States does not track how many noncitizen veterans are deported each year, but it is estimated that hundreds – if not thousands – of veterans have been deported over the course of the last several years.[24]  Perhaps if more effort was expended explaining to noncitizens in the military how they may be naturalized and helping those individuals navigate the labyrinth that is the immigration process, deportation of military veterans could be avoided.

The Debate: Which is More Important – Veteran Status or Immigrant Status?

As part of their military service, veterans swore to honor and defend the U.S. Constitution; they risked losing their lives to protect the rest of the nation. Given this commitment and service, should noncitizen veterans be treated as U.S. citizens with respect to criminal sanctions (e.g., charged, convicted, and punished for their crimes, but not deported)?  Alternatively, is deportation and ineligibility for readmission to the United States appropriate given the individual’s immigrant status and criminal conviction?

As mentioned, immigration laws related to deportation do not currently provide any kind of waiver or exemption for those with military service. Members of Congress may be unwilling to fight for modification of these laws to protect veterans facing deportation as it could be perceived as advocating for convicted criminals.[25]  Similarly, some veterans and veterans’ groups argue that although veterans should be held in high regard, they should also follow the law.[26]  Immigrant veterans should not receive sympathy if they have committed a crime, and an honorable discharge should not serve as a “free pass” to prevent deportation.[27]

On the opposite side, this is considered a veterans’ issue, not an immigration issue, and veterans who have honorably defended the United States should be entitled to special treatment for the purpose of immigration law. For instance, Representative Thompson has introduced legislation to amend the INA to protect noncitizen veterans by prohibiting deportation of any noncitizen veteran who has honorably served but has been convicted of an aggravated felony.[28]  As Representative Thompson stated, “[i]f someone is willing to put on the uniform of the United States military, the last thing they should have to worry about is their immigration status…we shouldn’t be deporting them.”[29]  Similarly, Representative Grijalva proposed to amend the INA to prevent the deportation of veterans who commit non-serious crimes.[30]  Under this bill, veterans who commit felonies and serious misdemeanors (including misdemeanors related to domestic violence, sexual assault, and illegal firearms possession, or resulting in a prison term of more than 90 days) would still be subject to deportation.[31]  Despite apparent congressional support for modifying the INA to provide greater leniency for noncitizen veterans,[32] these bills have not advanced within Congress.

Rather than tackling complex immigration laws, another perspective emphasizes addressing the factors that may lead a noncitizen veteran to commit a criminal act resulting in deportation. After separating from the military, many noncitizen veterans return to low-income and/or high-crime neighborhoods and struggle with the transition to civilian life.[33]  These veterans face obstacles ranging from challenges as basic as finding employment to more complicated matters of dealing with physical and mental injuries related to their military service.[34]  The crimes for which deported veterans are convicted may be indicative of the struggles they face with returning to civilian life.  For instance, in 2012, over three-quarters of incarcerated veterans had been discharged honorably or under honorable conditions.[35]  However, these individuals were more likely than non-veterans to have been convicted of violent offenses.[36]  Because there is a requirement that all military enlistees – both citizens and noncitizens – not have a felony criminal conviction before joining the military, some have suggested that this post-military violent criminal behavior indicates a need to provide greater or more effective resources to support veterans separating from the military to prevent this criminal conduct.[37]

As these competing viewpoints may indicate, the future of this debate remains unclear. The current Presidential administration appears focused on tightening immigration laws and policies, but there is some Congressional support for modifying immigration laws to address the deportation rules as they relate to our military veterans.  Regardless of the outcome of this debate on the legislative side, there is evidence that greater attention may be warranted in developing more effective policies and programs to support veterans with the unique struggles they face upon transitioning to civilian life to prevent criminal behavior that could lead to deportation.  Further, improved assistance with navigating the naturalization process could be provided to noncitizens with military service to avoid the deportation debate entirely.

[1] Kristine Phillips, The Story Behind This Powerful Photo of Deported Military Veterans Saluting the U.S. Flag, Wash. Post (Nov. 16, 2017), https://www.washingtonpost.com/news/checkpoint/wp/2017/11/16/the-story-behind-this-powerful-photo-of-deported-military-veterans-saluting-the-american-flag/?noredirect=on&utm_term=.f46944a82810.

[2] 10 U.S.C. § 504(b)(1)(A)-(B) (2006). Additionally, under various international agreements, citizens of Micronesia, the Republic of the Marshall Islands, and Palau may also join the U.S. military. See 10 U.S.C. § 504(b)(1)(C) (2006)

[3] Dep’t of Def., Military Accessions Vital to National Interest (MAVNI) Recruitment Pilot Program 1 (2016). In Fiscal Year 2017, the DoD suspended the MAVNI program and is not currently accepting new applicants. What is MAVNI? Information for Designated School Officials, Dep’t of Homeland Sec., https://studyinthestates.dhs.gov/what-is-mavni-information-for-designated-school-officials (last visited May 11, 2018).

[4] Greg McLawsen, Can Immigrants Serve in the US Military? 8 Q&As About Non-Citizen Service, Avvo Stories (Sep. 6, 2017), http://stories.avvo.com/rights/immigration/can-immigrants-serve-us-military-8-rules-non-citizen-service.html; The U.S. Military Helps Naturalize Non-Citizens, Military.com, https://www.military.com/join-armed-forces/eligibility-requirements/the-us-military-helps-naturlize-non-citizens.html (last visited Apr. 14, 2018).

[5] 8 U.S.C. § 1439(a) (2008).

[6] Id.

[7] 8 U.S.C. § 1440(a) (2003).

[8] Exec. Order No. 13,269, 67 Fed. Reg. 45,287 (July 8, 2002).

[9] U.S. Immigration and Customs Enf’t, F and M Nonimmigrants and MAVNI: A Guide for Designated School Officials 1 (May 2016).

[10] Id.

[11] Jim Caramone, DoD Announces Policies Affecting Foreign Nationals Entering Military, Dep’t of Def. (Oct. 13, 2017), https://www.defense.gov/News/Article/Article/1342430/dod-announces-policies-affecting-foreign-nationals-entering-military.

[12] Am. Immigration Council, Aggravated Felonies: An Overview 1 (Dec. 2016).

[13] See 8 U.S.C. § 1101(a)(43).

[14] See id.

[15] Sessions v. Dimaya, No. 15-1498, slip op. at 1 (U.S. Apr. 17, 2018).

[16] 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(b).

[17] Am. Immigration Council, supra note 12, at 1-2.

[18] Id. at 3.

[19] See, e.g., Carmen George, Deported Marine Veteran Came Home the Only Way He Could – in a Casket, Military.com (Apr. 23, 2018), https://www.military.com/daily-news/2018/04/23/deported-marine-veteran-came-home-only-way-he-could-casket.html.

[20] See Burial Benefits, Dep’t of Veterans Affairs, https://www.benefits.va.gov/compensation/claims-special-burial.asp, (last visited May 11, 2018).

[21] Bardis Vakili, et al., ACLU of California, Discharged, then Discarded: How U.S. Veterans are Banished by the Country They Swore to Protect 23 (July 2016).

[22] See, e.g., Andy Romey, From Service to Citizenship, The Am. Legion (Oct. 1, 2015), https://www.legion.org/citizenship/230107/service-citizenship.

[23] Vakili, supra note 21, at 19.

[24] See, e.g., Kevin Sullivan, Deported Veterans: Banished for Committing Crimes after Serving in the U.S. Military, Wash. Post (Aug. 12, 2013), https://www.washingtonpost.com/politics/deported-veterans-banished-for-committing-crimes-after-serving-in-us-military/2013/08/12/44f81098-ffa9-11e2-9a3e-916de805f65d_story.html?utm_term=.2911cac34ac2.

[25] See id.

[26] Id.

[27] Id.; Roxana Popsecu, They Served in the U.S. Military and Hoped for Citizenship. They Got Deported, Chicago Tribune (June 4, 2017, 5:04 PM), http://www.chicagotribune.com/news/nationworld/ct-deported-vets-20170604-story.html.

[28] H.R. 2346, 115th Cong. (2017).

[29] See Sullivan, supra note 24.

[30] H.R. 1470, 115th Cong. (2017).

[31] Id.

[32] See Popsecu, supra note 27.

[33] Vakili, supra note 21, at 16.

[34] Id.

[35] Jennifer Bronson, et al., U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Statistics, Veterans in Prison and Jail, 2011-2012 1 (Dec. 2015).

[36] Id. Sixty-four percent of veterans had been convicted of violent offenses, compared to 48 percent of non-veterans.

[37] Vakili, supra note 21, at 14.

Mandatory Arbitration Contract Provisions: Beware the Fine Print

By Spring 2018 M-VETS Student-Advisor Nebye Kahssai

Contracts between companies and consumers are ubiquitous these days. Companies like Google and Apple with online and other electronic applications bombard us with dialog boxes that open up on our computer screens or phones that require us to “check the box” indicating that we have read the company’s “Terms of Agreement.”  If you’re like most people, you simply agree so that you can continue checking your email or using any of the dozens of things you need to do with your phone.  A problem is that almost all contracts that consumers enter into these days are what are referred to as “adhesion contracts” which are defined as the following:

“a standardized contract prepared entirely by one party to the transaction for the acceptance of the other; such a contract, due to the disparity in bargaining power between the draftsman and the second party, must be accepted or rejected by the second party on a ‘take it or leave it’ basis, without opportunity for bargaining and under such conditions that the [consumer] cannot obtain the desired product or service [except] by acquiescing in the form agreement.”[i]

So when consumers enter into contractual agreements with large companies like Apple, Google, or practically any other large company, consumers do not have the power to renegotiate the terms of agreement for use of the product or service. The inability for consumers to renegotiate the terms of these agreements can have adverse consequences for consumers when problems arise with the particular product or service. Many of the adhesion contracts that consumers enter into with large companies contain provisions to settle problems related to the product or service through arbitration.  Arbitration is “the out-of-court resolution of a dispute between parties to a contract, decided by an impartial third party (the arbitrator).”[ii]  Here is an example of an arbitration clause that a consumer can find in the fine print of their contract or terms of services agreement:

“Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.”[iii]

These arbitration clauses are often inserted into the fine print and buried in “take it or leave it” agreements between consumers and companies, sometimes with very negative consequences. Arbitration procedures prevent consumers from having their issues related to the purchased products or services adjudicated by the courts.  This hurts consumers because while courtrooms are public forums for parties to “air out dirty laundry,” arbitration proceedings are often held behind closed doors:

“Once a relatively obscure legal issue, mandatory arbitration agreements are now under scrutiny by activists who say they force victims of harassment and discrimination into silence. Opponents of mandatory arbitration say that the closed hearings, which include non-disclosure clauses and are often performed by a third-party arbitrator paid by the company itself, prevent victims from taking further action. . .”[iv]

In addition to courtrooms acting as public forums, courtroom procedures allow parties to engage in “discovery” which is the exchange of information between opposing parties so that each party can learn more about the details of the claims or defenses being made. “The [Federal Rules of Civil Procedure] permit broad discovery, which can involve documents that are not directly relevant to a claim or defense, but which have the potential to lead a party to other documents that do contain such information.”[v]  In arbitration, however, the discovery process, and the exchange of information between the parties, is often much more selective, and “fully within the control of the arbitrator.”[vi]  The American Arbitration Association’s discovery rule, R-22, “frames the process of discovery in a way where the ‘arbitrator shall manage’ whatever exchange of information takes place with a view towards economic efficiency, and equality of treatment.”  Given arbitration’s “dictator-like” discovery rules, a consumer with limited resources challenging a large company is at risk of potentially arbitrary behavior on the part of the arbitrator.

In an example of the adverse consequences of arbitration provisions, Wigdor LLP, a New York law firm, recently filed a class action lawsuit against Uber on behalf of women who claimed they were assaulted or raped by Uber drivers.[vii]  The women blamed Uber’s background check procedures and sought through litigation to understand if Uber’s policies put them in danger.[viii]  Rather than being able to “have their day in court,” however, the women discovered that their agreement with Uber required that they address their issues in arbitration.  A group of fourteen of the women “sent an open letter to the company’s board, asking to be released from the mandatory arbitration clause in the Uber app’s terms of service.”[ix]  The group’s letter reads, in part:

“Secret arbitration is the opposite of transparency. Forcing female riders, as a condition of using Uber’s app, to pursue claims of sexual assault and rape in secret arbitration proceedings does not ‘make streets safer.’  Silencing our stories deprives customers and potential investors from the knowledge that our horrific experiences are part of a widespread problem at Uber.”[x]

The experience of these women demonstrates that companies are dictating the terms of how consumers are able to bring grievances forward. As a result of the widespread use of mandatory arbitration provisions in contracts between consumers and companies, if consumers are harmed by a company’s goods or services, consumers can no longer rely on the right to their “day in court” to obtain appropriate redress.  Companies lock consumers into forced arbitration procedures, reinforced with non-disclosure clauses, to keep cases out of the public view of judges and juries.  Given the lack of transparency, we cannot tell whether an arbitrator’s decisions and procedures are arbitrary or whether they are compatible with a fair and reasonable view of the law and the facts.  What we know for certain, however, is that those important decisions are not made by judges and juries who remain at least somewhat publicly accountable for their actions.

So, what are consumers to do you might ask? One answer comes from what has transpired from the work of that brave group of women who decided to fight Uber’s mandatory arbitration policies.   As a result of those women’s actions, Uber announced that it is “ending mandatory arbitration for individual claims of sexual assault or sexual harassment by Uber drivers, riders or employees.”[xi]  Uber also announced that it “is also ending the requirement that victims sign a confidentiality provision preventing them from speaking out about the sexual assault or sexual harassment they suffered – saying survivors will now have the option to settle their claims with Uber without having to agree to being publicly silenced in order to do so.”[xii]

Public action by consumers can sometimes lead to a change a company’s practices. Such action might even lead to a cascading effect whereby other large companies are forced to rethink their own adhesion contracts.  Unfortunately for most consumers, however, adhesion contracts do not appear to be disappearing from our legal environment any time soon.  The most that consumers can probably do is to scrutinize the contracts that they do have some control over; contracts that aren’t “take it or leave it.”  A consumer agreeing to a mandatory arbitration provision has to consider whether they really want to give up the right to their “day in court.”  In addition to a mandatory arbitration provision, if a consumer has the power or the ability to determine the terms of their contract, they should look at each term of agreement carefully.  At bottom, the consumer must beware the fine print.

[i] Steven v. Fidelity & Casualty Co. of New York, 377 P.2d 284, 297 (Cal. 1962)

[ii] https://www.adr.org/Arbitration, accessed 5/14/2018.

[iii] https://www.adr.org/Clauses, accessed 5/15/2018.

[iv] https://techcrunch.com/2018/04/26/women-alleging-sexual-assault-by-uber-drivers-asked-to-be-freed-from-forced-arbitration/, accessed 5/15/2018.

[v] Paul B. Radvany, Recent Trends In Discovery In Arbitration and In the Federal Rules of Civil Procedure, 34 Rev. Litig. 705, 736 (2015).

[vi] Id.

[vii] https://techcrunch.com/2018/04/26/women-alleging-sexual-assault-by-uber-drivers-asked-to-be-freed-from-forced-arbitration/.

[viii] Id.

[ix] Id.

[x] Id.

[xi] https://techcrunch.com/2018/05/15/uber-ends-policy-of-forced-arbitration-for-individual-sexual-assault-clams/, accessed 5/15/2018.

[xii] Id.