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

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

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

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

Blue ‘Ticket’ Discharges

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

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

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

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

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

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

Veteran Nelson Henry Jr.’s Fight

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

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

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

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

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

Corrective Actions

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

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

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

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

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

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

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

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

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

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

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

[8] Id.

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

[10] Id. at 1.

[11] Id. 13.

[12] Id. at 8.

[13] Id. at 13.

[14] Id. at 9.

[15] Id. at 13.

[16] Id. at 6.

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

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

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

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

[27] Id.

[28] Id.

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

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

[31] Id.

[32] Id.

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

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

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

By Spring 2019 M-VETS Student-Advisor Katie Stegmuller

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

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

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

Congressional Response

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

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

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

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

[2] 38 U.S.C.S. § 1116.

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

[4] Id.

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

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

[7] Id.

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

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

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

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

[12] Id.

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

[14] Id.

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

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

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

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

By Spring 2019 M-VETS Student-Advisor

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

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

The Helman Complaint[12]

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

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

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

The Helman Decision[27]

a. VACAA Violated the Appointments Clause

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

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

b. Deferring on Due Process Challenge

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 925.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 926.

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

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

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

[29] Id. at 928.

[30] Id.

[31] Id.

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

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

[34] Id. at 929.

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

[36] Id. at 928-29.

[37] Id.

[38] Id. at 929-30.

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

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

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

[42] Id.

[43] Id.

[44] Id. at 60.

[45] Id. at 63.

[46] Id.

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

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

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

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

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

[52] See footnote 48 supra.

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

By Spring 2019 M-VETS Student-Advisor Todd Mihill

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

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

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

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

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

State and Federal Law Conflict

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

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

Impact on the Military

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

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

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

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

Post-Discharge Challenges

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

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

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

Our Soldier

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

Suggestion and Conclusion

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

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

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

[i] 10 U.S.C. 47 §§ 801-946(a)

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

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

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

[v] 21 U.S.C. § 812

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

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

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

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

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

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

Image credit:10 Online Bachelor’s Programs With the Most Veterans (last accessed May 7, 2019), https://www.usnews.com/education/online education/articles/2015/05/26/10-online-bachelors-programs-with-the-most-veterans.

By Spring 2019 M-VETS Student-Advisor Casey Hunt

The G.I. Bill was created to give veterans access to higher education and training as a way to help transition back to civilian life after they honorably served their country. For-profit universities, however, often take advantage of veterans using their G.I. Bills to provide subpar education and below average job placement rates. The Department of Education has been in the process of creating a new rule regarding what standards for-profit colleges and universities must meet in order to use federal funding for over two years. Until the Department of Education creates a clear rule for these institutions, veterans should be wary of using their G.I. Bills at private, for-profit colleges and universities.

The G.I. Bill and Tuition

There are several different G.I. Bill benefits available for veterans and servicemembers. One, known as the “Post 9/11 G.I. Bill,” was passed in 2008 for veterans and servicemembers who served in the Armed Forces after September 11, 2001 or their families.[1] The federal government also provides the Montgomery G.I. Bill for active duty servicemembers and reservists or their families.[2] The G.I. Bill benefit was more recently updated with the passage of the “Forever G.I. Bill” in 2017, but the VA is still working on implementing the new changes.[3]

The average cost per year of a four year degree from a public institution as of 2016 was $19,189, whereas the average cost per year of a four year degree from a private institution was $39,529.[4] Tuition rates have been increasing across the board since the Department of Education was created and there are no signs of the trend slowing down.

One study shows that as Congress increased the G.I. Bill benefit, for-profit universities increased their tuition.[5] On the other hand, for-profit universities have criticized these types of studies because they may not account for online programs, as online programs are less expensive than traditional programs and would decrease the average tuition amount at for-profit schools.[6]

Background on For-Profit Colleges

Beginning in 2013, states and the Consumer Financial Protection Bureau brought lawsuits against one of the largest private for-profit college entities in the United States, Corinthian Colleges.[7] Prosecutors argued that Corinthian defrauded its students by targeting low-income individuals and promising high job placement rates.[8] Despite these promises of job placement, the for-profit university’s actual rate of job placement ranged from zero to twelve percent across its campuses. For-profits also misrepresented their graduation rates and potential earnings of graduates to entice more students to enroll in their programs.[9] With false promises and flexible scheduling of classes, for-profit advertising attracted millions of students.[10]

Today, for-profits must meet two requirements in order to receive federal funding – they must receive at least ten percent of their funding from private sources, what the Department of Education calls the “90/10 rule,”[11] and they must show that their programs prepare students for “gainful employment” after graduation.[12] While a new measurement of “gainful employment” is still being discussed in the Department of Education, the current measurement of gainful employment looks at a student’s debt-to-earnings ratio.[13] At a for-profit university, if an average student’s annual loan payment is higher than eight percent of their total earnings, that college has not met the gainful employment requirement.[14]

Many students have asked the Department of Education to excuse their student loans because they were defrauded by for-profit colleges. This has proven to be an uphill battle, as only around 22 percent of borrowers of the over 218 million applications since 2015 have been granted some type of debt relief by the end of 2018.[15] Of those approved applications, 68.7 percent received full debt relief and 31.2 percent received partial debt relief.[16]

For-Profits and Veterans

One of the groups most affected by these for-profit misrepresentations is veterans. The G.I. Bill, under the “90/10 rule” counts as private funding.[17] Because of the rule, for-profit universities disproportionately targeted veterans to meet the ten percent private funding requirement.[18] A Senate report from 2012 showed that for-profit institutions sent recruiters to veteran hospitals and wounded-warrior centers to enroll more veterans.[19] Even with their G.I. Bill benefit, veterans are still not able to cover the cost of higher education and must take out more loans to cover their tuition and living expenses while studying. When for-profit colleges underdeliver, veterans are then stuck with federal loans that they cannot pay off.

Without proper federal oversight, veteran advocacy groups found that underperforming for-profit colleges could receive $2.3 billion in federal money.[20] Those groups have called on VA Secretary Robert Wilkie to limit the use of G.I. Bills at for-profit institutions.[21]

To be sure, not all for-profit institutions take advantage of their students and some for-profit institutions offer flexible, online options that work better with the schedules of veterans who have families or are working while they earn their degree.[22] Additionally, online colleges can adapt quicker to the changing job market, providing training for the most in demand skills.

Taking Extra Care

Choosing a path to higher education is daunting enough without the fear of being saddled with student loan debt for years after receiving a diploma. In light of the unclear regulations by the Department of Education and the silence from the VA regarding for-profit schools, veterans and servicemembers should take extra care when determining where to use their G.I. Bill. This means looking beyond a school’s own website at third-party rankings, accreditation boards, and rates of student debt. A little extra time spent researching before committing to a program can save thousands of dollars in the long run.

[1] 38 U.S.C. § 3311 (2018).

[2] 38 U.S.C. § 3011 (2008).

[3] Forever G.I. Bill: Early Implementation Challenges, Department of Veterans Affairs Office of the Inspector General (Mar. 20, 2019), https://www.va.gov/oig/pubs/VAOIG-19-06452-97.pdf.

[4] Digest for Education Statistics, U.S. Department of Education, National Center for Education Statistics (2018), https://nces.ed.gov/fastfacts/display.asp?id=76.

[5] Greg Toppo, For-Profit Tuition Rises as GI Benefit Grows, Inside Higher Ed (May 29, 2018), https://www.insidehighered.com/news/2018/05/29/study-profits-raise-tuition-post-911-gi-bill-benefit-grows.

[6] Id.

[7] See Consumer Fin. Prot. Bureau v. Corinthian Colleges, Inc., 2015 U.S. Dist. LEXIS 178105 (N. D. Ill. 2015).

[8] Id. a 7-8.

[9] Id. at 8.

[10] For-Profit Colleges by the Numbers, Center for Analysis of Postsecondary Education and Employment (last accessed May 6, 2019), https://capseecenter.org/research/by-the-numbers/for-profit-college-infographic/.

[11] 34 C.F.R. § 668.14(b)(16) (2014).

[12] 20 U.S.C. § 1001(b)(1) (2011).

[13] 34 C.F.R. § 668.403(a) (2017).

[14] Education Department Releases Final Debt-to-Earnings Rates for Gainful Employment Programs, U.S. Department of Education (Jan. 9, 2017), https://www.ed.gov/news/press-releases/education-department-releases-final-debt-earnings-rates-gainful-employment-programs.

[15] Borrower Defense to Repayment Loan Forgiveness Data, Office of Federal Student Aid (Dec. 2018), https://studentaid.ed.gov/sa/about/data-center/student/loan-forgiveness/borrower-defense-data.

[16] Id.

[17] Karina Hernandez, Why These Veterans Regret Their For-Profit College Degrees — And Debt, PBS (Oct. 23, 2018, 2:22 p.m.), https://www.pbs.org/newshour/education/why-these-veterans-regret-their-for-profit-college-degrees-and-debt.

[18] Id.

[19] Danielle Gabriel, Veterans groups ask VA secretary to keep GI benefits out of the hands of predatory colleges, Washington Post (Feb. 20, 2019), https://www.washingtonpost.com/education/2019/02/20/veterans-groups-ask-va-secretary-keep-gi-benefits-out-hands-predatory-colleges/?utm_term=.2c30791ac905.

[20] Id.

[21] Id.

[22] Carrie Sheffield, In Defense of For-Profit Colleges, Forbes (May 29, 2015), https://www.forbes.com/sites/carriesheffield/2015/05/29/in-defense-of-for-profit-colleges/#40100dbb1836.

By Spring 2019 M-VETS Student-Advisor

When considering post-traumatic stress (PTS), the first thought that comes to mind is a veteran returning from a theatre of combat. Due to technological advances, the Department of Veteran’s Affairs (VA) must be prepared to deal with the increase of drone pilots who suffer from PTS. Historically, PTS has been an underdiagnosed condition, which has left many servicemembers without the assistance they need to recover. This blog post discusses the history of PTS and how PTS in drone pilots is a problem that the VA should address.

History of PTS

Writing for the VA, Matthew J. Friedman, MD, PhD outlines how PTS has been a noticeable concept in literature since Shakespeare’s Henry IV.[1] Friedman discusses how the originators of the PTS diagnoses (then called PTSD), considered occasions like “war, torture, rape, the Nazi Holocaust, the atomic bombings of Hiroshima and Nagasaki, natural disasters, and human-made disasters”[2] to be triggers for PTS. The originators clearly separated these triggers from other stressors such as “divorce, failure, rejection, serious illness, financial reverses, and the like.”[3]

Despite the fact that the originators considered events like Hiroshima and Nagasaki to be triggers for PTS, and common symptoms have been discussed at least as early as Shakespeare, it was not until the Vietnam War that the United States began paying attention to the condition.[4] In 1952, the American Psychiatric Association categorized combat stress as a “gross stress reaction.”[5] However, “combat stress” disappeared from the APA’s list of conditions in 1968. The lack of urgency with which the medical profession considered the mental effects of PTS shows that it was not taken as seriously as it should have been.

In 1980, the APA formally recognized PTS as an anxiety disorder.[6] Vietnam veterans are one of the more studied groups of veterans suffering from PTS. Common symptoms that they suffer are “combat flashbacks, intense memories or recurrent dreams of the traumatic event, or the feeling that the stressor is reoccurring.”[7] Further symptoms that are indicative of PTS are a lack of “responsiveness to the outside world evidenced by diminished interest in significant activities, feelings of detachment or estrangement, or repressed emotions.”[8] Lastly, veterans commonly report feeling at least two of the following symptoms “hyperalertness, sleep disturbance, survivor guilt, memory impairment, avoidance of activities reminiscent of the trauma, and intensification of symptoms after exposure to stimulia resembling the stressor.”[9]

Vietnam veterans have described which lead to them reliving events that took place during their deployment.[10] The flashbacks vary in their length and can occur years after the stressor occurred.[11]

Current Issue with Drone Pilots

Current service members must now confront a new medical issue, and it is not one that should take years for the medical community to address. Specifically, today’s servicemembers face the stigma of conducting warfare behind a computer screen from hundreds – if not thousands – of miles away from the theatre of war. While a drone pilot may not fear that their life is in danger, it has been shown that they have “significant incidence rates for several psychiatric disorders, including PTSD.”[12]

Rachel Martin reported for NPR that seventeen percent of active duty drone pilots are “clinically distressed,” and twenty-nine percent report a lesser level of burnout and fatigue that does not rise to the level of affecting their work and family.[13] A 2013 study showed that drone pilots are as susceptible to PTS at the same rate as pilots who fly in aircraft.[14] Although drone pilots who suffer from PTS are outnumbered by servicemembers who serve in traditional combat roles, it is important to remember that warfare is constantly evolving. The evolution of warfare requires a corresponding battle against the societal effects of PTS. Like the war that caused it, each battle against PTS is unique and necessitates its own approach. Rather than take years to address the issue as was done in the past, the VA should take proactive steps to aid drone pilots rather than allow them to suffer like the Vietnam War servicemembers.

Proposal/Conclusion

The current method for diagnosing PTS is too complex. The VA should make the service-connection process of PTS a three-pronged test. In Sarah Mayes’s article, Unraveling the PTSD Paradox: A Proposal to Simplify the Adjudication of Claims for Service Connection for Posttraumatic Stress Disorder, she recommends writing the test as “(1) current diagnosis, (2) incurrence in service, and (3) nexus”[15] Mayes argues that this is beneficial because it will not only offer immediate benefits to the decisions of current PTS claims, but will help streamline the process and make the VA better prepared for the future since there will not be as many factors to consider.[16] This is a good first step to assist drone pilots with PTS claims.

The United States realized too late that the burden of Vietnam servicemembers, who are suffering from PTS, required treatment. Although the stigma of PTS is still pervasive, the willingness of the medical community to help the Vietnam servicemembers heal has gone a long way to improving the situation.  This willingness has resulted in a slow growth in sympathy for servicemembers suffering from PTS.[17] To better be prepared for an increase in PTS claims from drone pilots and to quickly curb the stigma that drone pilots should not have PTS because they were not physically in danger, the VA should take steps to streamline the application process and raise awareness about the budding problem.

[1]Matthew J. Friedman, PTSD History and Overview, U.S. Dep’t of Veterans Affairs,

https://www.ptsd.va.gov/professional/treat/essentials/history_ptsd.asp.

[2] Id.

[3] Id.

[4] Michael J. Davidson, Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of A Controversial War, 29 Wm. & Mary L. Rev. 415, 418 (1988).

[5] J. CARD, LIVES AFTER VIETNAM 103 (1983) (discussing AMERICAN PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (1st ed. 1952)).

[6] AMERICAN PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (3d ed. 1980).

[7] Michael J. Davidson, Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of A Controversial War, 29 Wm. & Mary L. Rev. 415, 421 (1988).

[8] Id.

[9] Id.

[10] Id.

[11] AMERICAN PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (3d ed. 1980).

[12] Sarah K. Mayes, Unraveling the Ptsd Paradox: A Proposal to Simplify the Adjudication of Claims for Service Connection for Posttraumatic Stress Disorder, 6 Veterans L. Rev. 125, 183 (2014).

[13] Rachel Martin, Report: High Levels of ‘Burnout’ in U.S. DronePilots, NAT’L PUB. RADIO (Dec. 18, 2011, 6:01 PM), http://www.npr.org/2011/12/19/143926857/report-high-levels-of-burnout-in-u-s-drone-pilots.

[14] Hernando J. Ortega, Jr., Editorial, Challenges in Monitoring and Maintaining the Health of Pilots Engaged in Telewarfare, 20 MED. SURVEILLANCE MONTHLY REP. 2, 2 (2013).

[15] Sarah K. Mayes, Unraveling the Ptsd Paradox: A Proposal to Simplify the Adjudication of Claims for Service Connection for Posttraumatic Stress Disorder, 6 Veterans L. Rev. 125, 185 (2014)

[16] Id.

[17] Michael J. Davidson, Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of A Controversial War, 29 Wm. & Mary L. Rev. 415, 439 (1988)

 

By Fall 2018 M-VETS Student-Advisor

Our nation’s brave soldiers can be preyed upon, not only on the battlefield, but also in our nation’s financial marketplaces.[1] Several key characteristics make our servicemembers more apt to becoming preyed upon financially. Servicembers are generally young and lack financial sophistication, robust savings, or guidance from family members; they also receive regular paychecks and have steady employment.[2]

These are key ingredients for “predatory lending.”[3] Once a predatory lender sets its hook, our servicemembers are “placed at a disadvantage and penalized through high fees and interest and dire consequences if they default.”[4] Besides destroying a servicemember’s personal finances, predatory lending impacts the military through readiness standards and retention.[5]  The Department of Defense (DoD) “expects [its] [s]ervicemembers to maintain personal readiness standards, including paying their debts and maintaining their ability to attend to the financial needs of their families.”[6] Running afoul of personal finances can impact a servicemember’s readiness, leading to separation.[7] Separating servicemembers that fall into financial trouble can be costly. The DoD estimates that a separation costs the DoD approximately $58,250.[8]

Congress and the DoD recognized the threat that predatory lending practices have on servicemembers and the military. In 2006, the DoD conducted a study on predatory lending practices,[9] which culminated in the Military Lending Act (MLA).[10]

Initial Implementation of the MLA

The MLA was implemented in 2007 by the DoD through 32 CFR § 232 and protects covered borrowers—active duty members of the military, their spouses, and children, and certain other dependents—from certain lending practices.[11] The DoD’s initial regulation provided protections from predatory lenders through “limitations on and requirements for certain types of consumer credit for covered borrowers.”[12] Specifically, these “limits and requirements” were only placed on “three narrowly-defined consumer credit products”: 1) closed-end payday loans for no more than $2,000 and with terms of 91 days or fewer; 2) closed-end auto title loans with terms of 181 days or fewer; and 3) closed-end tax refund anticipation loans.[13]

The DoD’s regulation limited interest rates and fees charged by creditors on these three products, including a maximum Military Annual Percentage Rate (MAPR) of 36 percent.[14] Creditors were also required to provide mandatory loan disclosures, in addition to those typically required under the Truth In Lending Act (TILA).[15] Further, the regulation provided for various penalties and remedies for violating the MLA.[16]

Providing a “Helmet” – 2015 Expansion of the MLA

Because the original MLA protections were “narrowly focused” on three specific types of consumer credit products, lenders found ways to continue predatory lending practices by dodging the MLA through products outside of its protection. For example, offering servicemembers open-ended lines of credit.[17] One example—and unfortunately this is one of many such examples—of such dodging of the MLA left one poor sailor with a loan at an APR of 499 percent.[18] The consequence of the MLA’s narrow focus is summed up nicely in the following quote by the former director of the Consumer Financial Protection Bureau (CFPB) Richard Cordray: “The current rules under the Military Lending Act are akin to sending a soldier into battle with a flak jacket but no helmet. To give our troops full-cover protection, the rules need to be expanded . . . .”[19]

MLA protections were indeed expanded in 2015 and servicemembers were given a metaphorical “helmet.” MLA protections now “cover significantly more loans and lenders,”[20] as the regulation’s definition of consumer credit was broadened to align with the definition of credit in TILA.[21] Additional protections extended in the 2015 amendment included modifying the MAPR of 36 percent to include additional fees and charges, modifying disclosures creditors must give to covered borrowers, and implementing provisions for administrative enforcement and civil liability against creditors that violate the MLA.[22]

2018 – A Seesaw of Policy Stances

In August 2018, the Military Lending Improvement Act of 2018 (MLIA) was introduced in the Senate “to expand and improve consumer credit protections for members of the Armed Forces and their dependents, and for other purposes.”[23] This bill enhances the 2015 amendments by broadening the types of loans and expanding covered individuals to include veterans.[24] However, an appetite for making MLA modifications appears to be lacking. The MLIA represents a second attempt at making amendments as amendments were originally introduced as part of the National Defense Reauthorization Act of 2019 to no avail.[25] As of the writing of this blog, the Senate has not acted on the MLIA. Further, the MLIA will likely face stiff opposition from the consumer finance industry as it seeks to expand the definition of a “covered borrower.”[26]

Although the MLA is implemented by the DoD, it is enforced by the CFPB and other federal regulators.[27] In October 2018, in a potential weakening of the enforcement of the MLA, the CFPB announced that it would cease its supervisory examinations of financial firms for compliance with the MLA.[28] The primary reason for this cessation is due to the current CFPB leadership’s interpretation of its authority, or lack thereof, to conduct these examinations.[29] This is potentially significant as enforcement of MLA protections would be done post hoc through complaints—after a servicemember may have already been preyed upon—as opposed to preemptively catching predatory practices.[30]

[1] U.S. Dept. of Def., Report on Predatory Lending Practices Directed at Members of the Armed Forces and Their Dependents, 10 (Aug. 9, 2006) [hereinafter DoD Predatory Lending Report 2006], http://archive.defense.gov/pubs/pdfs/Report_to_Congress_final.pdf.

[2] Id.

[3] Id. at 21.

[4] Id. at 22.

[5] Consumer Financial Protection Bureau, Military Lending Act, Interagency Examination Procedures 1 (2016) [hereinafter CFPB MLA Exam Procedures].

[6] See DoD Predatory Lending Report 2006, supra note 1, at 10; See also DoD Directive 1344.9, Indebtedness of Military Personnel, October 27, 1984.

[7] See generally Limitations on Terms of Consumer Credit Extended to Service Members and Dependents, 80 FR 43560-01.

[8] Id.

[9] See DoD Predatory Lending Report 2006, supra note 1.

[10] 10 U.S.C. § 987. The MLA was actually passed as the John Warner National Defense Authorization Act for Fiscal Year 2007.

[11] Office of the Comptroller of the Currency, Comptroller’s Handbook, Consumer Compliance, Military Lending Act (2018).

[12] CFPB MLA Exam Procedures, supra note 5, at 1.

[13] CFPB Report Finds Loopholes in Military Lending Act Rules Rack Up Costs for Servicemembers (Dec. 29, 2014), https://www.consumerfinance.gov/about-us/newsroom/cfpb-report-finds-loopholes-in-military-lending-act-rules-rack-up-costs-for-servicemembers/

[14] Id.

[15] Id. TILA is codified under 15 U.S.C. § 1601 and implemented under 12 C.F.R. § 1026 (Regulation Z).

[16] See 32 C.F.R. § 232.

[17] Open-ended credit is generally a revolving and can be used repeatedly until a certain maximum limit is reached. See 12 C.F.R. § 1026.2 for a full description.

[18] Letter from Hollister Petraeus, Asst. Dir. for the Off. of Servicemembers Affairs, CFPB, to Charles Hagel, Sec. of Def. (Dec. 26, 2014), https://files.consumerfinance.gov/f/201412_cfpb_petraeus-comment-on-32-cfr-232.pdf.

[19] Major Moises A. Castillo, The Military Lending Act Part II: The Department of Defense Strikes Back!, Army L., Nov. 2016, at 3.

[20] Nessa Feddis, Robert Savoie, Consumer Lending to Military Members: The Military Lending Act Final Rule and Servicemembers Civil Relief Act Enforcement, 71 Bus. L., 759, 769 (2016).

[21] CFPB Statement on Department Of Defense Military Lending Act Final Rule (July 21, 2015),

https://www.consumerfinance.gov/about-us/newsroom/cfpb-statement-on-department-of-defense-military-lending-act-final-rule/

[22] CFPB MLA Exam Procedures, supra note 5, at 2.

[23] Military Lending Improvement Act of 2018, S. 3334, 115th Cong. (2018), https://www.congress.gov/bill/115th-congress/senate-bill/3334/text.

[24] See id.

[25] Anthony C. Kaye, Military Lending Act of 2018 Introduced in the U.S. Senate, Consumer Fin. Monitor (Aug. 9, 2018), https://www.consumerfinancemonitor.com/2018/08/09/military-lending-improvement-act-of-2018-introduced-in-the-u-s-senate/.

[26] Id.

[27] See National Defense Authorization Act for Fiscal Year 2013, Pub. L. 112-239, section 662(b), 126 Stat. 1786.

[28] Kate Berry, Pentagon, Others Baffled by CFPB Plan to Cease Military Lending Exams, Am. Banker (Oct. 11, 2018, 9:00 PM), https://www.americanbanker.com/news/pentagon-others-baffled-by-cfpb-plan-to-cease-military-lending-exams.

[29] Id.

[30] See generally id.

By Fall 2018 M-VETS Student-Advisor Stephanie Musilek

The civilian criminal justice system exists to serve several purposes including obtaining justice for victims, punishing wrongdoers, and deterring future wrongs, but also providing due process of law to those accused of wrongdoing, thus ensuring fairness in the process. In this system, there are many players who all play different roles in the process and are all intended to be impartial (save for the attorney advocates working on behalf of the accused). For example, a prosecutor is intended to be impartial and only bring cases where there is evidence to convict the accused or a jury of the accused’s peers who are supposed to hear evidence and then vote whether or not to convict the accused. The investigating officers who collect evidence of crimes are also intended to be impartial. For criminal matters, the accused is also guaranteed counsel, per the Fifth and Sixth Amendments to the United States Constitution. In theory, these aspects of the criminal justice system exist to serve the goals of the criminal justice system, including justice and fairness. In practice, issues arise at all levels of the criminal justice system that prevent the system from meeting its goals, and many articles have been written on that topic and will not be discussed here. But the system’s structure is such that when everything works as it is supposed to, victims and accused are protected. This blog post will address the similarities and differences between aspects of the civilian criminal justice system and the military justice system.

The justice system that governs the military is separate and distinct from the civilian criminal justice system. The Uniform Code of Military Justice is codified at Title 10 Sections 801 to 940 and Title 14 Sections 508 and 509 of the United States Code and governs all aspects of criminal behavior by service members along with other kinds of misconduct by service members that does not have a civilian analog such as dereliction of duty, failure to follow a lawful order, or disrespect.[1] In the civilian world, when a crime is committed, a prosecutor will review the evidence and decide if charges should be brought against that individual. In the military context, the commander of the accused is the person with prosecutorial discretion.[2] This means that the commander decides whether to resolve charges against a service member administratively by informal counseling or limitations of privileges, for example, or to refer the charges to trial by court martial.[3] The power to convene a court martial given to a commander, makes the commander the “convening authority,” but the President, the Secretary of Defense, or the Secretaries of the various branches of the military also may also convene a general court martial under the statute.[4] A general court martial is for the most serious offenses.[5] Summary court martial and special court martial are for more minor offenses.[6]

The convening authority has additional powers as well. Before the trial, the convening authority can gather facts for the trial using either a commander’s inquiry, law enforcement agencies, or an Article 32 investigation.[7] Also similar to a prosecutor, during a trial, the convening authority can grant immunity to witnesses.[8] This is an expansive power because by declining to offer immunity to some witnesses, a court martial might not be able to proceed without their testimony.[9]

The convening authority is also the one responsible for selecting the people who will serve on a court martial.[10] While prosecutors in the civilian legal system play an important role in selecting jurors for a trial, they do not have total control of who serves on a jury. While juries are never perfect, they are intended to be composed of peers of the accused. In a court martial, enlisted members of the military may only serve on the court martial when an accused requests that they are, otherwise, the members of the court marital are officers.[11] Even when an enlisted service member requests that enlisted members are on his or her court martial, the convening authority can deny the request assuming they explain the reasoning in writing.[12] This is an incredible power given to commanders in the military that has no comparable analog in the civilian criminal justice system.

Another analog that the military justice system has to the civilian system is the Article 32 hearing. This preliminary hearing prior to a court martial is similar to a civilian grand jury proceeding.[13] A grand jury proceeding allows a prosecutor to show evidence to a panel of people and they will vote on whether charges should be brought against the accused, per the Fifth Amendment to the U.S. Constitution. But unlike a grand jury proceeding, an investigating officer in an Article 32 hearing gives a report summarizing the hearing proceedings and recommending whether to prosecute.[14]

Article 60 of the UCMJ gives the convening authority power above and beyond what a normal prosecutor can do. Under this section, the convening authority “may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.”[15] The statute also provides that a convening authority must provide written explanation for the change, but even with this provision, this is enormous power given to a single individual. A reason for such broad authority includes enabling commanders to ensure good order and discipline, which is a central part of being a leader. Another reason for the broad authority under the UCMJ is that it allows commanders to treat service members the same no matter where the crime is committed.[16]

The military justice system concentrates authority over the accused in a single individual, whereas in the civilian criminal justice system the authority is more diffuse. While It is important that commanders are able to maintain discipline and order in their ranks, a justice system should also provide justice to victims and due process to the accused.   Sexual assault cases in the military are especially susceptible to failing victims.[17] The military justice system has additional goals on top of those that the criminal justice system has and there are arguments for reforming the military justice system to make it more similar to the civilian justice system. Depending on one’s perspective, the additional goals of order and discipline present in a military justice system are overriding factors that counsel against taking away any power from commanders.

[1] Captain David Classen, Military Justice Under Fire: Commanders’ “Convening Authority” Power, Bench and Bar of Minnesota (Nov. 11, 2013), http://mnbenchbar.com/2013/11/military-justice-under-fire-commanders-convening-authority-power/.

[2] The Commander’s Role in the Military Justice System, Appendix B, B-1, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF.

[3] The Commander’s Role in the Military Justice System, Appendix B, B-1, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF.

[4] 10 U.S.C. § 822.

[5] The Commander’s Role in the Military Justice System, Appendix B, B-4, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF; 10 U.S.C. § 816.

[6] The Commander’s Role in the Military Justice System, Appendix B, B-4, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF; 10 U.S.C. § 816.

[7] The Commander’s Role in the Military Justice System, Appendix B, B-2, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF; Article 32 investigation refers to the preliminary hearing that is proscribed in 10 U.S.C. § 832 as mandatory before a general court martial can be convened.

[8] The Commander’s Role in the Military Justice System, Appendix B, B-2, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF.

[9] Captain David Classen, Military Justice Under Fire: Commanders’ “Convening Authority” Power, Bench and Bar of Minnesota (Nov. 11, 2013), http://mnbenchbar.com/2013/11/military-justice-under-fire-commanders-convening-authority-power/.

[10] 10 U.S.C. § 825.

[11] 10 U.S.C. § 825(c)(1).

[12] 10 U.S.C. § 825(c)(1).

[13] Captain David Classen, Military Justice Under Fire: Commanders’ “Convening Authority” Power, Bench and Bar of Minnesota (Nov. 11, 2013), http://mnbenchbar.com/2013/11/military-justice-under-fire-commanders-convening-authority-power/.

[14] Captain David Classen, Military Justice Under Fire: Commanders’ “Convening Authority” Power, Bench and Bar of Minnesota (Nov. 11, 2013), http://mnbenchbar.com/2013/11/military-justice-under-fire-commanders-convening-authority-power/.

[15] 10 U.S.C. § 860(c)(2)(B).

[16] Captain David Classen, Military Justice Under Fire: Commanders’ “Convening Authority” Power, Bench and Bar of Minnesota (Nov. 11, 2013), http://mnbenchbar.com/2013/11/military-justice-under-fire-commanders-convening-authority-power/.

[17] U.S. Dept. of Defense, “DoD Releases Annual Report on Sexual Assault in Military” May 1, 2018, https://dod.defense.gov/News/Article/Article/1508127/dod-releases-annual-report-on-sexual-assault-in-military/.

By Fall 2018 M-VETS Student-Advisor Tyler Whidby

Many veterans are told by Vocational Rehabilitation counselors that they are not eligible for Chapter 31 Vocational Rehabilitation services because 12 years or more has passed since the disabled veteran separated from the military. While this is an important fact, it is often an incorrect reason for a benefits denial when applied to many situations. There are many reasons why a veteran may retain eligibility to begin or continue Vocational Rehabilitation well beyond 12 years from their separation from the military.

What is the law?

The Basic Entitlement to Vocational Rehabilitation Benefits and Services provides that an individual meets the basic entitlement criteria for vocational rehabilitation benefits and services if:

(a) Veterans with at least 20 percent disability. The individual is a veteran who meets all of the following criteria:

(1) Has a service-connected disability or combination of disabilities rated 20 percent or more under 38 U.S.C. chapter 11.

(2) Incurred or aggravated the disability or disabilities in active military, naval, or air service on or after September 16, 1940.

(3) Is determined by VA to be in need of rehabilitation because of an employment handicap.

(b) Veterans with 10 percent disability. The individual is a veteran who meets all of the following criteria:

(1) Has a service-connected disability or combination of disabilities rated less than 20 percent under 38 U.S.C. chapter 11.

(2) Incurred or aggravated the disability or disabilities in active military, naval, or air service on or after September 16, 1940.

(3) Is determined by VA to be in need of rehabilitation because of a serious employment handicap.[1]

Merely meeting the basic requirements for eligibility is not enough to guarantee Vocational Rehabilitation services. When initially applying for Vocational Rehabilitation services these basic eligibility requirements are subject to a “Basic Period of Eligibility.”[2] The regulations provide that for the purposes of Vocational Rehabilitation, “the term basic period of eligibility means the 12-year period beginning on the date of a veteran’s discharge….”[3]

Many veterans, and some counselors, stop there. There is a fallacy that a hard cut-off for Vocational Rehabilitation services exists 12 years after discharge. This is not the case. 38 CFR § 21.42 plainly states that “[t]he basic period of eligibility does not run as long as any of the following reasons prevents the veteran from commencing or continuing a vocational rehabilitation program.”[4]

The first and most common reason the Basic Period of Eligibility may be longer than 12 years from discharge is that a qualifying compensable service-connected disability was not established.[5] No matter the date of discharge, if the veteran does not have a qualifying disability—20% or 10% with a serious employment handicap—“[t]he basic period of eligibility does not commence until the day VA notifies a veteran of a rating determination by VA that the veteran has a qualifying compensable service-connected disability under §21.40.”[6] The basic period of eligibility runs 12 years from the date the veteran received such notice.[7]

The second reason the Basic Period of Eligibility may be longer than 12 years from discharge is if a veteran is ineligible for Vocational Rehabilitation services due to their Character of Discharge.[8] The regulations states that “[t}he basic period of eligibility does not commence until the veteran meets the requirement of a discharge or release under conditions other than dishonorable.”[9] Instead of being calculated form the date of discharge, a veteran who successfully upgrades their character of discharge has a basic period of eligibility of 12 years beginning when “[a]n appropriate authority changes the character of discharge or release; or VA determines that the discharge or release was under conditions other than dishonorable or that the discharge or release was, but no longer is, a bar to benefits.”

The Basic Period of Eligibility may also be longer than 12 years from discharge is if the veteran was unable to commence or continue their participation in Vocational Rehabilitation due to a medical condition.[10] The regulation states that “[t]he basic period of eligibility does not run during any period when a veteran’s participation in a vocational rehabilitation program is determined to be infeasible for 30 days or more because of any medical condition(s) of the veteran, including the disabling effects of chronic alcoholism (see paragraphs (c)(2) through (c)(5) of this section).”[11] The Board of Veterans Appeals has specifically held that the medical disability prohibiting participation in the Vocational Rehabilitation program need not be a service-connected disability.[12] If a physical impairment or mental condition—including alcoholism—prevented the veteran from being able to begin or continue in their rehabilitation then the 12 year clock from when they were notified of a qualifying disability stops.[13]

But that’s not the eligibility determination. When the veteran has a Serious Employment Handicap, the 12-year time limit can be completely waived.[14] If the veteran is found to have an employment handicap, even after the 12-year period of basic eligibility has expired, it must be determined whether he has a serious employment handicap and may be authorized an extension of the period of eligibility.[15] Critically, under 38 C.F.R. § 21.52, for each individual who is found to have an employment handicap, a Counseling Psychologist or Vocational Rehabilitation Counselor must make a separate determination of whether the individual has a serious employment handicap.[16]

The applicable law states that a veteran who has been found to have an employment handicap shall also be considered to have a serious employment handicap if, in pertinent part, he has a service-connected disability rated at 50% or more.[17] However, a rating of 50% is not required. The statute defines a ‘serious employment handicap’ as a significant impairment, resulting in substantial part from a service-connected disability rated at 10 percent or more, of a veteran’s ability to prepare for, obtain, or retain employment consistent with such veteran’s abilities, aptitudes, and interests. [18]

Indeed, a serious employment handicap will be found if the veteran has a neuropsychiatric service-connected disability rated at 30% or more[19] or if the veteran’s service-connected disability has been rated at 30 or 40 percent disabling, and

(1) the veteran has a prior history of poor adjustment in training and employment, and special efforts will be needed if he is to be rehabilitated; or

(2) the veteran’s situation presents special problems due to non-service-connected disability, family pressures, etc., and a number of special and supportive services are needed to effect rehabilitation.[20]

The Board of Veterans Appeals has further held that, “while a serious employment handicap is not usually found if the veteran’s service-connected disability is rated less than 30 percent disabling, a finding of serious employment handicap may be made if the veteran’s service-connected disability has caused periods of unemployment or unstable work history, or the veteran had demonstrated a pattern of maladaptive behavior which is shown by a history of withdrawal from society or continuing dependence on Government income support programs.[21]

After obtaining a finding of a serious employment handicap, the basic period of eligibility of a veteran with a serious employment handicap may be extended beyond 12 years when the veteran’s employment and particular handicap necessitate an extension as necessary to pursue a vocational rehabilitation program under the following conditions:

(a) The basic period of eligibility may be extended when the veteran has not previously been rehabilitated to the point of employability.

(b) The basic period of eligibility may be extended when the veteran was previously declared rehabilitated to the point of employability, under the VA vocational rehabilitation program, but either:

(1) the veteran’s service-connected disability or disabilities have worsened to the extent that he is unable to perform the duties of the occupation in which he is trained, or in a related occupation; or

(2) the occupation in which the veteran was rehabilitated to the point of employability is not presently suitable in view of the veteran’s current employment handicap and capabilities (the finding of unsuitability must be based upon objective evidence developed in the course of reconsideration which shows that the nature or extent of the veteran’s employment handicap and his or her capabilities are significantly different than were previously found.) or;

(3) occupational requirements have changed and additional services are needed to help the veteran continue in the occupation in which he or she was trained or in a related field. [22]

What does this mean?

A counselor statement that a veteran is not within the basic period for eligibility may be improper and insufficient for the denial of Vocational Rehabilitation services. Determining entitlement to services is complex and requires an in-depth evaluation of all aspects of a veteran circumstances and record.

The 12-year time limit does not start until:

1. the veteran receives a disability rating of at least 20% or the veteran receives a 10% rating with a Serious Employment Handicap

AND

1. the character of discharge is no longer a bar to benefits

AND

1. the veteran is mentally and physically able to participate in Vocational Rehabilitation.

The primary reasons for denial of a claim due to the basic period of eligibility relate to the 12-year calculations. It is necessary to ensure the counselor is using the date of notification of a qualifying disability. This may be complicated by veterans who filed disability claims many years after separating from military service or when a veteran obtained their qualifying disability rating subsequent to other rating decisions. However, a qualifying disability must be a disability rating of at least 20% or a 10% rating with a Serious Employment Handicap and the veteran must have been properly notified of this rating.

In the case of veterans who have successfully obtained discharge upgrades or other changes to their character of discharge, the 12-year calculation utilizes the date of the change in the character of discharge. In these cases, it matters neither when the veteran separated from the service nor when a disability rating was awarded. The applicable law clearly states that the 12-year eligibility period does not begin for these veterans until they become eligible for services.

The third way in which the 12-year clock is stopped is when a veteran is the mentally and physically able to participate in Vocational Rehabilitation. A veteran who can show that ANY medical or mental condition—including alcoholism—would have prevented their participation in Vocational Rehabilitation for any 30-day period may retain eligibility beyond 12 years from being notified of a qualifying disability.

Finally, should a veteran qualify for services but require time beyond the 12-year eligibility period to complete their rehabilitation, it is necessary to determine if a serious employment handicap exists. Despite what many veterans and counselors believe, a disability rating of 50% is not required. Any employment handicap, from a service-connected disability rated at 10% or more, of a veteran’s ability to prepare for, obtain, or retain employment consistent with such veteran’s abilities, aptitudes, and interests is a serious employment handicap. A veteran seeking a finding of a serious employment handicap must relate their service-connected disability, rated at least 10%, to an inability to obtain or maintain employment in which they have abilities, aptitudes, and interests (remember these three words!). A finding of a serious employment handicap results prevents the 12-year period of entitlement from ending.

While counselors may not consider all the ways to get in and stay in Vocational Rehabilitation, there are many arguments a veteran should use to ensure their entitlement to Vocational Rehabilitation. Ensure that each exception is checked for applicability to the veteran. Do not assume that the Vocational Rehabilitation counselor has gone through each of these possibilities when the veteran is told they are outside the basic period of eligibility for Chapter 31 Vocational Rehabilitation services.

[1] 38 CFR § 21.40, Basic Entitlement To Vocational Rehabilitation Benefits And Services.

[2] 38 CFR § 21.41, Basic Period Of Eligibility.

[3] 38 CFR § 21.41(a)

[4] 38 CFR § 21.42

[5] See 38 CFR § 21.42(a)

[6] Id

[7] Bd. Vet. App. 0838805 (Nov. 10, 2008)

[8] 38 CFR § 21.42(b)

[9] Id.

[10] 38 CFR §21.42(c)

[11] Id; Bd. Vet. App. 9731114 (Sept. 11, 1997)

[12] Bd. Vet. App. 0022736 (Aug. 28, 2000)

[13] Id.; see 38 C.F.R. § 21.52(e); Bd. Vet. App. 9410483 (1994)

[14] See 38 U.S.C.A. § 3101; 38 C.F.R. § 21.44; Bd. Vet. App. 9402538 (1994)

[15] Id.

[16] Bd. Vet. App. 1731945 (Aug. 8, 2017)

[17] 38 C.F.R. § 21.52(c)

[18] 38 U.S.C.A. § 3101(7); Bd. Vet. App. 0427591 (Oct. 5, 2004)

[19] Id.

[20] 38 C.F.R. § 21.52(d)

[21] 38 C.F.R. § 21.52(e); Bd. Vet. App. 0107462 (Mar. 13, 2001); Bd. Vet. App. 9410483 (1994)

[22] 38 C.F.R. § 21.44; Bd. Vet. App. 9731114 (Sept. 11, 1997)

 

By Fall 2018 M-VETS Student-Advisor Michael Vlcek

The United States would face a crisis in leadership if the President and the Vice President are simultaneously killed or removed from office. The United States does not have a clear Presidential succession plan, which is a national security necessity for a country with the largest military[1] and largest economy[2] in the world. Not only would the death of the President and Vice President require an immediate response abroad to ensure America’s allies of a peaceful transition of power and to quickly respond to enemy transgressions (particularly if another nation was responsible for the deaths of the President or Vice President), but the power of the Presidency would invite legitimate claims by multiple people demanding that, by law, they are entitled to the Presidency. This will likely put the Supreme Court in the role of determining the next President, with the decision possibly dividing the nation worse than when the Supreme Court decided Bush v. Gore.[3] Due to this danger, Congress must clarify Presidential succession and the Supreme Court must draft an advisory opinion on who is constitutionally allowed to succeed the President, before a fight over the Presidency occurs.

The Framers of the Constitution never established a clear understanding of how Presidential succession was to work. The Constitution’s Vacancy and Disability Clause[4] was so unclear that when President William Henry Harrison died from pneumonia, it was uncertain whether Vice President John Tyler would become President, or merely Acting President, and if there was a real distinction between the two roles.[5] It was only codified through the passage of the Twenty-Fifth Amendment that a successor to the President would in fact be the President.[6] However, this only applies to the Vice President, as the Amendment does not state that others in the line of succession could become more than an Acting President.[7]

It is commonly believed that the Presidential Succession Act of 1947 designated a clear order of succession,[8] from the President to the Vice President to the Speaker of the House to the President pro tempore to finally the Cabinet Secretaries in order of the creation of the federal departments.[9] However, the law fails to clarify important aspects of the succession process and may be unconstitutional.

The Presidential Succession Act of 1886 was created to create an order of succession beyond the President and Vice President to members of the President’s Cabinet. It was replaced by the Presidential Succession Act of 1947, which injected the Speaker of the House and the President pro tempore of the Senate into the order of succession before the Cabinet.[10] However, putting members of Congress into the order of succession may be unconstitutional.[11] It may violate the Constitution’s Ineligibility Clause, which prevents members of Congress from holding other offices in the federal government.[12] Further, the Constitution’s Vacancy and Disability Clause designates only an “officer” may succeed the President.[13] Throughout Article II, “officers” are persons appointed by the President, which does not include members of Congress.[14] This would prevent the Speaker of the House or the President pro tempore from becoming President.

In addition, the Presidential Succession Act of 1947 allows for officers serving as “Acting President” to be bumped out for somebody higher up in the order of succession.[15] This could mean that if the Secretary of State were to become Acting President, that person could be removed from power as soon as the House of Representatives elects a new Speaker.[16] Not only might this be unconstitutional for the aforementioned reasons, but it would also risk the United States having numerous Acting Presidents in a short amount of time, allowing for a chaotic leadership struggle.[17] Bumping itself may be unconstitutional, as the Framers did not design the Presidency to change hands on the whims of Congress, except in cases of impeachment.[18] The issue of bumping could create a struggle for the Presidency between a Secretary of State and a newly elected Speaker of the House, particularly if the Speaker comes from a rival political party.

Adding to the confusion is that each federal department has their own order of succession.[19] This became well-known to the public when then Attorney General Jeff Sessions had to relieve himself of responsibilities regarding overseeing the investigation of Russia’s interference in the U.S. Presidential election of 2016, in which the responsibility for overseeing the investigation was transferred from Sessions to the Deputy Attorney General Rod Rosenstein.[20] For example, the Director of Defense Research and Engineering is the sixteenth person in line to succeed the Secretary of Defense in the event the Secretary and the people below him are incapacitated or ineligible to serve as Acting Secretary of Defense.[21] An acting Cabinet Secretary could be eligible for the Presidency, provided that the Presidential Succession Act of 1947 use of the word “officer” is to mean the same as it did in the Presidential Succession Act of 1886.[22] Under current protocol, the secret service considers acting Cabinet officials as eligible to be President under the rules of succession.[23] Hypothetically, the Deputy Secretary of State could serve as the Acting Secretary of State, and therefore be eligible to become Acting President. However, this is unclear and could lead to a dispute between a Deputy Secretary of State and the Secretary of Treasury over the Presidency.

Outside of legal concerns, there are numerous practical concerns to the Presidential Succession Act of 1947. The current order of succession does not place the people best in line to handle a crisis.[24] For example, the President pro tempore (who is often the eldest member of the Senate and often an octogenarian or nonagenarian) is placed high in the order of succession.[25] In addition, Cabinet members are placed in the order of succession based on when the federal department was created.[26] While the Secretary of Agriculture and the Secretary of Commerce oversee important federal departments, these officials might not be best suited to take over in a crisis compared to the Secretary of Homeland Security.[27] Furthermore, everybody in the order of succession works in Washington D.C. (with the exception of the Secretary of Defense, who works in nearby Arlington, Virginia). This increases the risk that an event could happen which would incapacitate multiple (or all) persons in the order of succession, which raises the likelihood of an unclear successor and a fight for succession.

To prevent a battle for the Presidency after a tragedy, Congress and the Supreme Court must get involved now. The Supreme Court could address the constitutionality of the Presidential Succession Act of 1947, particularly if members of Congress may become officers.[28] Congress should design a system that avoids current problems with the Presidential succession.[29] This could include allowing the President to place certain governors into the order of succession.[30] This would put qualified, experienced executives into the order of succession. In addition, governors are not located in D.C., which helps avoid the scenario of all members of the order of succession perishing in attack that destroys D.C. and its surrounding localities. Another solution is to eliminate the bumping provision, to create stability when one person becomes Acting President.[31] Finally, the ambiguity whether an acting Cabinet member is eligible for Presidential succession should be resolved.[32]

The current Presidential succession laws in the United States threaten instability if nothing is done. America faces a disastrous scenario if multiple parties have valid claims for political power were to fight it out in the courts, particularly during a national emergency. Hopefully, the day never comes when the United States will need a thought-out succession plan in place. However, national security is all about anticipating the worst-case scenario. Preparing for a disastrous situation in which the President and Vice President are killed or removed from office requires both Congress and the Supreme Court resolving the current issues with Presidential succession, before it’s too late.

 

[1] Jeremy Bender, “Ranked: The World’s 20 Strongest Militaries,” Business Insider (October 3, 2015) https://www.businessinsider.com/these-are-the-worlds-20-strongest-militaries-ranked-2015-9/#20-canada-1.

[2] Prableen Bajpai, “The World’s Top 20 Economies,” Investopedia (January 2, 2019) https://www.investopedia.com/insights/worlds-top-economies/.

[3] 531 U.S. 98; see e.g. Jeffrey Toobin, “Justice O’Connor Regrets,” The New Yorker (May 6, 2013) https://www.newyorker.com/news/daily-comment/justice-oconnor-regrets. Justice Sandra Day O’Connor regrets the Supreme Court taking Bush v. Gore. She goes on to say the case “stirred up the public” and “gave the Court a less than perfect reputation.”

[4] U.S. Const. Art. II §1 cl. 6.

[5] Robert McNamara, “John Tyler: First Vice President to Suddenly Replace a President,” ThoughtCo. (March 17, 2017) https://www.thoughtco.com/john-tyler-vice-president-replace-president-1773862.

[6] U.S. Const. amend. XXV.

[7] See id.

[8] See e.g. Jason Silverstein, “Here’s the Presidential Order of Succession – Just in Case,” New York Daily News (May 17, 2017) https://www.nydailynews.com/news/politics/presidential-order-succession-case-article-1.2973129.

[9] See 3 U.S.C. §19.

[10] Id.

[11] See Norman Ornstein, “It’s Armageddon,” American Enterprise Institute (February 9, 2004) http://www.aei.org/publication/its-armageddon/.

[12] U.S. Const. Art. I §6 cl. 2.

[13] U.S. Const. Art. II §1 cl. 6.

[14] M. Miller Baker, “Ensuring the Continuity of the United States Government: The Presidency,” Global Security (September 16, 2003) https://www.globalsecurity.org/security/library/congress/2003_h/030916-baker.htm.

[15] Thomas H. Neale, Presidential Succession: An Overview with Analysis of Legislation Proposed by the 109th Congress, CRS Report for Congress (June 29, 2005) https://fas.org/sgp/crs/misc/RL32969.pdf.

[16] Id.

[17] Id.

[18] See U.S. Const. Art. I, §2, cl. 5.

[19] See e.g. Executive Order 13533 (2010).

[20] Meghan Keneally, “Who Would Fill Deputy Attorney General Rod Rosenstein’s Position If He’s Fired or Resigns?”, abc News (September 25, 2018) https://abcnews.go.com/US/explaining-justice-departments-line-succession-trump-off-script/story?id=58044089.

[21] Supra note 19.

[22] “The Presidency: Preserving Our Institutions,” Continuity of Government Commission, 34 (June 2009) https://www.webcitation.org/67sZJhkHR?url=http://www.brookings.edu/~/media/research/files/reports/2009/7/06%20continuity%20of%20government/06_continuity_of_government.pdf.

[23] Id.

[24] See 3 U.S.C. §19.

[25] See id.

[26] See id.

[27] See id.

[28] See id.; supra note 22.

[29] See Second Fordham University School of Law Clinic on Presidential Succession, Fifty Years After the Twenty-Fifth Amendment: Recommendations for Improving the Presidential Succession System, 86 Fordham L. Rev. 917 (2017). Available at: http://ir.lawnet.fordham.edu/flr/vol86/iss3/3.

[30] See e.g. Id. at 952. This idea is like the “standing successor” proposal.

[31] See Id. at 954.

[32] See Id.