Category: Blog

Written by Spring 2026 M-VETS Student Advisor, Yonatan Shoshan.

I. Introduction: A Promise Deferred

The United States has enlisted non-citizens into its armed forces since the Revolutionary War. Today, federal law not only allows lawful permanent residents to join but also provides them with an expedited path to citizenship as a benefit of their service.[1] Congress codified that promise into law, and multiple presidents have invoked it through executive orders. Yet as of 2025, that promise still has a wide enough gap to deport a Purple Heart recipient.

About 115,000 non-citizen veterans currently live in the United States, individuals who served honorably, in some cases in combat, but who never completed the naturalization process.[2] Many did not know they were required to file separate paperwork after serving. Some filed and had applications lost by the very bureaucracy that was supposed to process them. Others were discharged before USCIS could schedule their oath ceremony. The current administration uses that gap in citizenship status as the legal basis for detention and removal. This applies even to veterans with decades of ties to the United States, even to those wounded in combat, and those who lost their naturalization applications through no fault of their own.

This blog post examines the legal framework that governs non-citizen veterans in immigration proceedings, the enforcement shift that has placed them at acute risk, the key cases that illustrate the human and legal stakes, and the legislative response that remains stalled in Congress.

II. The Statutory Framework: A Pathway That Requires Navigation

Congress has long recognized that military service is a compelling basis for naturalization. Section 329 of the Immigration and Nationality Act — codified at 8 U.S.C. § 1440 — allows non-citizens who serve honorably in active-duty status during a designated period of hostilities to apply for naturalization without satisfying the usual requirements as to age, residence, physical presence, and court jurisdiction.[3] Since September 11, 2001, all such services have been covered by executive order.[4]

Importantly, § 1440 waives 8 U.S.C. § 1429, which would otherwise prohibit naturalization while a final order of removal is pending.[5] This means that a non-citizen veteran who has already begun removal proceedings is not automatically foreclosed from naturalizing, but the statutory window is perilously narrow in practice. Naturalization applications require processing time; removal proceedings move on their own clock; and an individual detained by ICE may not have meaningful access to counsel or USCIS.

The critical flaw in the framework is that § 1440 creates an opportunity for naturalization, not an entitlement. The statute does not prevent deportation. Military service is not, by itself, a legal defense to removal under the Immigration and Nationality Act. Unlike a criminal defendant who has served their sentence and is presumptively free, a non-citizen veteran who has served their country remains subject to all grounds of removal available under 8 U.S.C. § 1227.[6] The law provides a path to citizenship; it does not guarantee that the path will be walked in time.

III. The Policy Shift: From Discretion to Enforcement

For years, enforcement discretion operated as a practical safeguard for non-citizen veterans. During the Biden administration, ICE agents were directed to consider military service records before initiating removal proceedings and to exercise caution when the individual was eligible for naturalization, absent “significant aggravating factors.”[7]

The Trump administration rescinded that guidance within days of its inauguration in January 2025. In its place, a DHS enforcement memorandum emphasized that military service does not “automatically exempt aliens from the consequences of violating U.S. immigration laws.”[8] The legal statement is technically accurate. The operational consequence has been severe: non-citizen veterans who had been living in the United States for decades — some under written assurances from DHS that their cases were closed — found themselves detained with little warning and placed in removal proceedings.

This is not a story about criminals. It is a story about bureaucratic failure and the absence of a legal backstop. ICE does not routinely report on the veteran status of individuals it detains or deports, meaning the full scope of the problem remains invisible.[9] Advocacy organizations estimate that over 10,000 veterans may have been deported between January and June 2025 alone — a figure cited in a congressional letter to the Secretary of Defense — but confirmed numbers remain elusive simply because the government does not track them.[10]

IV. The Cases: What the Legal Gap Looks Like in Practice

a. José Barco: The Lost Application

José Barco enlisted in the U.S. Army at age seventeen, deployed twice to Iraq, and earned a Purple Heart after an IED explosion left him with third-degree burns and a traumatic brain injury.[11] His commanding officer confirmed in a 2025 court filing that Barco had submitted a citizenship application after his second tour and that USCIS subsequently lost the packet.[12] He was discharged in 2008 without having been naturalized.

After a subsequent criminal conviction, Barco served fifteen years in Colorado state prison. On January 21, 2025, one day after the inauguration, he walked out of prison and was immediately apprehended by ICE agents who had been waiting for him.[13] He spent months in detention, was transferred between at least six facilities, and was eventually deported to Mexico on November 14, 2025, a country he had never visited and to which he had no ties.[14]

Barco’s case presents the starkest version of the legal failure: the government lost his naturalization paperwork, never corrected the error, and then deported him twenty years later for lacking the citizenship he had tried to gain. His attorneys argued that his deportation should be deferred under the Convention Against Torture, given his combat background and the risk of harm in Venezuela or Cuba, but those arguments were ultimately unsuccessful.[15]

b. Marlon Parris: The Rescinded Assurance

Army veteran Marlon Parris served two tours in Iraq. Following his service, DHS sent him a letter explicitly stating that it was not pursuing deportation proceedings against him. Two days after President Trump’s inauguration in January 2025, Parris was surrounded by unmarked vehicles and taken into ICE custody. [16] His family reported that they still had no explanation for why, after years of operating on the assumption that his case was closed, he was swept up in enforcement.[17]

Parris’s case illustrates a distinct legal problem: reliance on an interest created by government assurances. While informal agency guidance is not legally binding in how a formal grant of deferred action might be, there is a serious due process question when individuals change their conduct — as Parris apparently did, making no effort to seek formal legal status because he believed he was protected — in direct reliance on official government representations.

c. Godfrey Wade: The Stale Hearing Notice

Godfrey Wade, a sixty-five-year-old Army veteran, had lived in the United States for fifty-two years and raised six children here.[18] He was detained following a traffic stop that revealed he lacked documentation of his immigration status. He was told his situation was “final” without ever seeing an immigration judge. A hearing notice from 2014 had been sent to the wrong address and returned undelivered, meaning Wade had no opportunity to appear, and the order of removal was entered in absentia.[19]

Wade’s case raises the habeas corpus question most directly. Where an individual has no meaningful access to the judicial process — where a removal order entered in absentia becomes the operative legal instrument — the writ of habeas corpus may be the only available relief. Federal courts have, in at least one case, granted habeas relief to a disabled veteran detained by ICE, finding the detention unlawful while the underlying immigration proceedings continued.[20] The availability and scope of habeas review in this context remain unsettled, but it represents a critical tool for practitioners representing detained veterans.

V. The Legislative Response: Stalled But Important

Senator Tammy Duckworth has repeatedly introduced legislation to address this legal gap. Ahead of Veterans Day 2025, she reintroduced a package of three bills: the Veterans Visa and Protection Act of 2025, the Healthcare Opportunities for Patriots in Exile (HOPE) Act, and the Immigrant Veterans Eligibility Tracking System (I-VETS) Act.[21]

The centerpiece, S. 3144, would prohibit the removal of any non-citizen veteran who has not been convicted of a “crime of violence” as defined in 18 U.S.C. § 16(a).[22] That framing is legally significant: it would supersede § 237 of the INA as applied to veterans with non-violent criminal histories — including veterans like Barco, whose conviction, whatever else might be said about it, did not meet the § 16(a) definition. The bill would also establish a visa program allowing deported veterans to return as lawful permanent residents, restore any military and veteran’s benefits they had before deportation, and create a pathway to naturalization.[23]

The companion HOPE Act would allow non-violent deported veterans to temporarily re-enter the United States to receive VA medical care — addressing the perverse consequence that veterans earn VA benefits through their service but lose access to those benefits the moment they are removed from the country.[24]

The I-VETS Act would require DHS to identify and track non-citizens with military service when they apply for immigration benefits or are placed in immigration enforcement proceedings — closing the data gap that currently allows the government to deport veterans without knowing or recording their status.[25] These bills have not advanced.  Democratic co-sponsors supported them entirely; as of this post, no Republican senators have signed on.[26] The legislation’s prospects in the current Congress are uncertain, making the legal gap it closes even more consequential.

VI. What Practitioners Can Do Now

The absence of statutory protection does not leave practitioners without tools. Several arguments and mechanisms remain available for active removal proceedings involving veterans.

Habeas Corpus is perhaps the most important thing. Where a detained veteran has a colorable claim that their detention is unlawful — for example, because they were entitled to naturalization and the government’s processing failures prevented it, or because a removal order was entered without adequate notice — a petition for a writ of habeas corpus under 28 U.S.C. § 2241 is appropriate. Wade’s legal team pursued this avenue after his deportation, seeking to reopen his underlying criminal cases because he did not understand the immigration consequences of his plea agreement.

Convention Against Torture (CAT) relief may be available where deportation would expose the veteran to a particularized risk of torture — especially for veterans who served in intelligence or combat roles and whose backgrounds may make them targets in the countries to which they are being removed. Barco’s attorneys raised this argument, grounded in his military service and his family’s dissident history in Cuba and Venezuela. While the argument did not ultimately succeed in that case, it is fact-specific and should be evaluated in each case.

The lost-paperwork argument deserves more systematic development. Where a veteran’s naturalization application was filed, acknowledged, and then lost by USCIS — and where the commanding officer can certify that fact — there is an equitable argument that the veteran should not be removable on the basis of a citizenship status that the government failed to process. This is not currently a recognized doctrine, but it presents a compelling case for mandamus relief directing USCIS to adjudicate the lost application, or for relief before the immigration court as a matter of discretionary relief under 8 U.S.C. § 1229b (cancellation of removal), for which military service is a relevant equitable consideration.

Congressional notification and advocacy can also matter. Several veterans’ cases have been stayed or reviewed following a congressional inquiry. Practitioners should consider whether to request intervention by the relevant U.S. Senator or Representative, particularly in cases involving combat-wounded veterans or veterans with documented PTSD.

VII. Conclusion

The legal framework governing non-citizen veterans in immigration proceedings contains a gap that the current enforcement environment has transformed into a crisis. Congress created an expedited path to citizenship for those willing to serve in uniform during wartime. It did not create protection against deportation for those who served but did not complete the naturalization process. That distinction — legally sound in the abstract — produces outcomes that are difficult to reconcile with any coherent account of what the nation owes those who bled for it.

The cases of Barco, Parris, and Wade are not edge cases. They are illustrative of a systemic pattern: non-citizens who enlisted under the reasonable belief that service would lead to citizenship, who encountered bureaucratic obstacles they had no power to overcome, and who are now subject to removal from the only country they have known as adults. For practitioners, the challenge is twofold: litigating individual cases with the tools currently available and supporting the legislative reform that alone can close the underlying gap.

[1] 8 U.S.C. § 1440 (2018); see also Exec. Order No. 13,269, 67 Fed. Reg. 45,287 (Jul. 3, 2002) (designating the period beginning September 11, 2001, as a period of hostilities triggering expedited naturalization eligibility) [https://perma.cc/V9P8-LXHP].

[2] Cong. Research Serv., Naturalization Through Military Service: Who Is Eligible? (2024) [https://perma.cc/X6PM-QCSQ].

[3] See 8 U.S.C. § 1440(a); supra note 1.

[4] See Exec. Order No. 13,269; supra note 1.

[5] See 8 U.S.C. § 1440(a) (2018); supra note 1; cf. 8 U.S.C. § 1429 (2018).

[6] See 8 U.S.C. § 1227 (2018).

[7] See DHS, Guidelines for Enforcement Actions in or Near Protected Areas (Oct. 12, 2021); see also DHS, Interim Guidance: Civil Immigration Enforcement and Removal Priorities (Jan. 20, 2021), as described in Gloria Rebecca Gomez, Purple Heart Iraq Veteran Deported to Unknown Location, Ariz. Mirror (Nov. 15, 2025), [https://azmirror.com/briefs/purple-heart-iraq-veteran-deported-to-unknown-location/].

[8] See DHS, Enforcement and Removal Operations: Civil Immigration Enforcement Actions (Jan. 20, 2025); as described in Gomez, supra note 7.

[9] See U.S. Gov’t Accountability Office, GAO-19-416, Noncitizen Servicemembers: Additional Actions Needed to Reduce Barriers and Ensure Equal Treatment 36–38 (2019) [https://perma.cc/EP2L-2D5G].

[10] See Letter from Rep. Yassamin Ansari et al. to Sec’y Pete Hegseth, Sec’y Doug Collins & Sec’y Kristi Noem (Jun. 24, 2025), [https://ansari.house.gov/imo/media/doc/veteran_deportations_letter.pdf] (“Some estimates state that the number of deported veterans is over 10,000 individuals or even higher.”); see also News21, Mass Deportations Ensnare Immigrant Service Members, Veterans, Military Times (Sept. 18, 2025), [https://perma.cc/E8H6-WGA5] (noting that there is no publicly available data on how many veterans are being affected, and that ICE does not routinely track or report the veteran status of deported individuals).

[11] See Rae Ellen Bichell, He’s a Decorated War Vet But a Convicted Criminal. ICE Wants to Deport Him, NPR (Apr. 4, 2025), [https://perma.cc/JFN5-LCF9].

[12] See Anna Mulrine Grobe & Whitney Eulich, Should a War Hero Be Deported? The Complex Dilemma Around One Convicted Vet, Christian Sci. Monitor (Nov. 9, 2025), [https://perma.cc/P9EA-Q4N8] (describing retired Lt. Col. Michael Hutchinson’s account of Barco’s citizenship application and the lost paperwork); see also Bichell, supra note 11 (quoting Hutchinson’s February 2025 memo for immigration officials stating that Barco’s naturalization packet “was lost”).

[13] See Kyle Cooke, José Barco, An Army Veteran Detained by ICE, Deported to Mexico, Rocky Mountain PBS, Nov. 19, 2025 [https://perma.cc/QNA9-U99T].

[14] Id.

[15] See Gomez, supra note 7; see also Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85; 8 C.F.R. § 1208.16(c).

[16] See Gloria Rebecca Gomez, Veterans Condemn Deportations of Immigrant Service Members Under Trump, Ariz. Mirror (Nov. 20, 2025), https://azmirror.com/2025/11/20/veterans-condemn-deportations-of-immigrant-service-members-under-trump/.

[17] Id.

[18] See Levins et al., supra note 10; see also Lauren Lantry, Georgia Army Veteran Stuck in ICE Detention Center, Military.com (Dec. 19, 2025) [https://perma.cc/N8VJ-6JF5].

[19] See Patricia Murphy et al., Georgia Army Veteran Deported While Appeal Pending, 11Alive News (Feb. 6, 2026) [https://perma.cc/4NB7-UHK2].

[20] See GAO-19-416, supra note 9; see also 28 U.S.C. § 2241.

[21] See Press Release, Sen. Tammy Duckworth, Duckworth Renews Push to Help Protect Servicemembers and Veterans from Deportation (Nov. 10, 2025) [https://perma.cc/2SXH-PFMU].

[22] See Veterans Visa and Protection Act of 2025, S. 3144, 119th Cong. § 4 (2025); see also 18 U.S.C. § 16(a).

[23] See S. 3144 §§ 3, 5, 6; supra note 22.

[24] See Healthcare Opportunities for Patriots in Exile (HOPE) Act of 2025, S. 3145, 119th Cong. (2025); see also 38 U.S.C. § 1710; see also Press Release, Sen. Duckworth, supra note 21.

[25] See Immigrant Veterans Eligibility Tracking System (I-VETS) Act of 2025, S. 3146, 119th Cong. (2025); see also GAO-19-416, supra note 9, at 36–38; Linda F. Hersey, Democratic Senators Back Bills to Halt Deportations of Immigrant Veterans, Stars & Stripes (Nov. 18, 2025) [https://perma.cc/4UAU-T3CM].

[26] See S. 3144, Co-Sponsors List, Congress.gov (listing only Democratic co-sponsors: Gallego, Blumenthal, Wyden, Rosen, Hirono, Kim) (last visited Apr. 4, 2026).

Written by Spring 2026 M-VETS Student Advisor Cole Smith

Servicemembers can encounter traumatic events during their service, leading to Post-Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI).  PTSD and TBI can cause functional impairments and may lead to anxiety or depression.  Many treatment pathways exist to help a veteran cope with these conditions, but none of the current treatment pathways can fully cure PTSD or TBI.  However, some veterans have begun to use a psychedelic drug called ibogaine and have reported significant improvement in their symptoms, with some reporting an almost perfect cure.  Ibogaine, derived from a root found in Africa, has traditional uses in religious and healing ceremonies.^[1]  Veterans have described the experience of using ibogaine as entering a dreamlike state that allows them to contemplate and understand events more deeply, and, when it wears off, leaving them with a feeling of fulfillment.^[2]  In some circumstances, the veterans may no longer want to use alcohol or other substances.^[3]  Although there are promising results for veterans, the federal government classified ibogaine as a Schedule I hallucinogenic substance.^[4]  Because of the classification, the Department of Veterans Affairs (VA) cannot offer ibogaine as a treatment option.^[5]

States across the country have begun laying the groundwork to support ibogaine’s development as a potential treatment for PTSD, TBI, and related conditions by funding or proposing Food and Drug Administration (FDA) compliant research pathways.  Texas recently authorized a clinical trial of ibogaine to provide veterans with access to the treatment option.  The Texas statute S.B. 2308 creates a state-run clinical trial of ibogaine to accelerate federally recognized clinical development.^[6]  The Texas model creates a partnership between academics, drug manufacturers, and hospital administration to provide a research-based approach to approval.^[7]  Some other states have begun to propose legislation that replicates Texas’s approach, allowing their own clinical trials of ibogaine as a limited treatment option.^[8]

The effectiveness of encouraging the federal government to adopt the treatment plan through state-level legislation is limited.  Sam Adriance explains that state-level legislation can “persuade policy makers at other levels of government” to secure the right to try the medication or treatment, such as ibogaine, for veterans.^[9]  Adriance’s article evaluates the general right-to-try principles and their effects on the federal government through state-level legislation, but it is also relevant to the expansion and use of ibogaine for veterans.^[10]  The dual system of legislation in the medical world can prevent, or effectively slow access to, treatment.  Although some states, like Texas, created paths for veterans to “bypass” the federal system, the federal system disincentivizes drug corporations from participating in expansive state-level programs because state law may conflict with federal law, and the companies lack federal liability protections.^[11]  Additionally, ibogaine is distinguishable from marijuana, which has a large non-medical market for recreational use.  In contrast, ibogaine is not a recreational drug with a large following, which could further slow the use of ibogaine in the veteran population, absent FDA approval.^[12]

The VA has a primary mission to provide “complete medical and hospital services” for veterans; however, the VA has a gap in its treatment options for PTSD or TBI, thus providing incomplete medical services for veterans.^[13]  The VA can address this gap in treatment through the further evaluation of ibogaine and, eventually, adding it as a treatment option for veterans with PTSD or TBI.  Congress has addressed the perpetual gap in medical treatments that would exist absent the introduction of new treatment plans or options within the VA hospitals.  Congress requires the Secretary of Veterans Affairs to “carry out a program of medical research in connection with the provision of medical care and treatment to veterans.”^[14]  The research shall address mental health and rehabilitative treatment options, and it must stress “injuries and illnesses particularly related to service.”^[15]  These research requirements perfectly align with the investigation and evaluation of the use of ibogaine for PTSD and TBI for veterans.  The VA has the framework that could allow for a limited treatment plan to help veterans through VA hospitals.

The Right To Try provision under 21 U.S.C. § 360bbb-0a offers a narrower avenue to treatment.  For a veteran to qualify under the statute, they must have a life-threatening disease or condition, have exhausted approved treatment options, and have written informed consent.^[16]  PTSD or TBI may not meet the definition of life-threatening in most cases; however, in rare cases that meet the exception, the eligible patient may be able to use the investigational drug, provided the sponsor makes it available.^[17]  Essentially, for a veteran to qualify under the Right To Try statute, they must provide informed consent, demonstrate that the PTSD or TBI is life-threatening, and exhaust most, if not all, available treatment options, which could take several years, with the uncertainty of ever being able to try ibogaine as a treatment option.  However, if the VA complies with the Controlled Substances Act research guidelines under the FDA’s regulatory scheme, the VA may provide ibogaine as a treatment option for some veterans.

The Schedule I classification complicates VA’s ability to administer ibogaine.^[18]  VA will need to proceed through the Schedule I research pathway to offer ibogaine.^[19]  A qualified VA practitioner-researcher would need Schedule I research registration under 21 U.S.C. § 823(g)(2)(A).   The Drug Enforcement Administration (DEA) would process the application and forward it, along with the protocol, to the Secretary of Health and Human Services for review of the applicant’s qualifications and the merits of the protocol.^[20]  For a clinical investigation, the VA must submit the required Investigational New Drug (IND) materials to the FDA.^[21]  VA may pursue access to ibogaine through a federally supervised research and investigational drug pathway, which would allow access to ibogaine for some veterans.

Once the VA clears the Schedule I barrier, expanded access appears to be a stronger route than the Right To Try because the FDA may authorize access for patients with a serious or immediately life-threatening disease or condition, not just a life-threatening one.^[22]  An expanded access IND can go into effect within 30 days of the FDA receiving the application, or earlier if the FDA allows treatment to begin sooner, such as in emergency cases.^[23]  The expanded access program through VA could work if the FDA concludes that veterans with PTSD or TBI have a serious or immediately life-threatening condition that has no comparable or satisfactory alternative therapy to treat it; the veterans’ benefits outweigh the potential risks; and providing ibogaine should not interfere with any clinical approvals.^[24]  The benefits of ibogaine could be as great as a complete cure or as low as some relief, and they may outweigh the potential cardiac risk of using it, which physicians could minimize through screening or by administering magnesium.^[25]  Whether expanded access within the VA interferes with ongoing clinical investigations into ibogaine, it could be limited through proper screening of VA personnel and participants, while also supporting further research into the drug’s efficacy.  The VA will have to follow the safeguards required by the regulation, but because some VA facilities already have hospital-based infrastructure, many of the requirements may already be in place.^[26]  The largest gaps in VA’s framework are the investigator and sponsor roles, and they will have to ensure that physicians meet the required qualifications and receive the necessary information.^[27]

Ibogaine is a promising treatment option that could help many veterans with PTSD or TBI.  The current VA framework includes a pathway that would allow for a limited treatment plan to help veterans through VA hospitals.  The VA can use the expanded access pathway through clinical investigations conducted under an IND application.^[28]  The VA will fulfill its primary mission of providing “complete medical and hospital service for the medical care and treatment of veterans” by adding the new treatment option for PTSD or TBI, which could help many more veterans.^[29]  If the VA begins to administer ibogaine, it will reach the veterans who need it and save those who otherwise might not have received the treatment.  While this path may not be the quickest, it promises to make a profound and lasting impact on the veteran community.

^[1] See Kirsten N. Cherian et al., Magnesium–Ibogaine Therapy in Veterans with Traumatic Brain Injuries, 30 Nature Med. 373, 374 (2024).

^[2] See Cherian et al., supra note 1, at 374; Shawn Ryan Clips, Navy SEAL Shawn Ryan Shares Profound Experience With Ibogaine (Feb. 11, 2023), YouTube,  https://www.youtube.com/watch?v=9-vEIopSPxo.

^[3] See Navy SEAL Shawn Ryan Shares Profound Experience With Ibogaine, supra note 2.

^[4] See 21 C.F.R. § 1308.11(d)(21).

^[5] See 38 C.F.R. § 17.38(c)(3).

^[6] See S.B. 2308, 89th Leg., R.S. § 491.051(a) (Tex. 2025).

^[7] See S.B. 2308, 89th Leg., R.S. § 491.051(b)(1)–(3) (Tex. 2025).

^[8] See, e.g., S.B. 2308, 89th Leg., R.S. §§ 491.051, .053, .056, .057 (Tex. 2025) (enacted) (building a state ibogaine clinical-trial infrastructure tied to Investigational New Drug submission and FDA approval); S.B. 2149, 114th Gen. Assemb. §§ 33-12-104(b), -105(b)(2)–(4), -108, -109, -116 to -118 (Tenn. 2026) (pending) (authorizing state-supported ibogaine drug-development clinical trials, requiring Investigational New Drug submission, and limiting trial sites to research institutions or hospitals); Assemb. B. 9583, 2025–2026 Leg., Reg. Sess. § 3399(1)–(4) (N.Y. 2026) (pending) (proposing a competitive grant program for FDA-compliant clinical trials of ibogaine for veterans with PTSD, limited to entities capable of Phase II or III trials seeking FDA approval); H.B. 1477, 2026 Leg., Reg. Sess., proposed Md. Code Ann., Health-Gen. § 13-5902(b)–(e) (Md. 2026) (pending) (proposing an ibogaine clinical research grant program for FDA-overseen clinical drug-development trials, administered in consultation with Maryland’s Department of Veterans and Military Families).

^[9] See Sam Adriance, Fighting for the “Right To Try” Unapproved Drugs: Law as Persuasion, 124 Yale L.J. F. 148, 149 (2014).

^[10] See Id.

^[11] See Id. at 153.

^[12] Id. at 154–55.

^[13] See 38 U.S.C. § 7301(b).

^[14] See 38 U.S.C. § 7303(a)(1).

^[15] See 38 U.S.C. § 7303(a)(2)–(3).

^[16] See 21 U.S.C. § 360bbb-0a(a)(1)(A)–(C); 21 C.F.R. § 312.81(a)(1)–(2) (defining life-threatening as “Diseases or conditions where the likelihood of death is high unless the course of the disease is interrupted; and [d]iseases or conditions with potentially fatal outcomes, where the end point of clinical trial analysis is survival”).

^[17] See 21 U.S.C. § 360bbb-0a(b).

^[18] See 21 C.F.R. § 1308.11(d)(21).

^[19] See Advanced Integrative Med. Sci. Inst., PLLC v. U.S. Drug Enf’t Admin., 128 F.4th 1133, 1144–45 (9th Cir. 2025) (explaining that practitioner use of Schedule I substances is limited to bona fide research and the requesting party must show their proposal is consistent with public health and safety).

^[20] See 21 U.S.C. § 823(g)(2)(A); 21 C.F.R. § 1301.32(a), (c).

^[21] See 21 C.F.R. §§ 312.20(a)–(b), 312.23(a), 312.40.

^[22] See 21 C.F.R. § 312.305(a)(1).

^[23] See 21 C.F.R. § 312.305(d)(1)–(2).

^[24] See 21 C.F.R. § 312.305(a)(1)–(3).

^[25] See 21 C.F.R. § 312.305(a)(1)–(3); Cherian et al., supra note 1, at 373.

^[26] See 21 C.F.R. § 312.305(c)(1)–(5).

^[27] See 21 C.F.R. § 312.305(c)(4)–(5).

^[28] See 38 C.F.R. § 17.38(c)(3).

^[29] See 38 U.S.C. § 7301(b).

Written by Fall 2025 M-VETS Student Advisor Jacoby Warner.

I. Introduction: A Cautious Win for Veteran Law

Practitioners representing veterans in disability retirement cases are accustomed to hard limits. Correction boards have often treated disability retirement as unavailable when a client’s separation was the result of misconduct, invoking statutory authority as a threshold bar rather than considering the medical merits. In LaBonte v. United States, the Army Board for Correction of Military Records and the Court of Federal Claims initially concluded that 10 U.S.C. § 1552(f) foreclosed disability retirement relief, believing they were without authority to change the servicemember’s reason for separation because there was a court-martial conviction.[1]

However, the Federal Circuit Court of Appeals in LaBonte v. United States corrected both prior decisions, holding that correction boards are not categorically barred from granting disability retirement merely because a servicemember’s separation involved misconduct or a court-martial.[2] The Court’s rejection of the government’s jurisdictional theory means that, when medical unfitness predates misconduct, the review board need not set aside a court-martial conviction, thereby allowing it to exercise its statutory authority.[3] LaBonte changed the litigation terrain without guaranteeing relief. LaBonte requires correction boards and reviewing courts to review the merits of disability claims that would have previously been dismissed for lack of authority.[4]

Read alongside Doyon v. United States, which emphasizes that statutory “liberal consideration” must be meaningfully applied rather than nominally acknowledged.[5] LaBonte reflects the judiciary’s reluctance to accept categorical reasoning in PTSD based correction cases, even as courts remain unwilling to substitute their judgment for that of military boards. This blog post examines LaBonte’s effect on a practitioner’s perspective, focusing on how the decision should be used to frame claims and preserve error reasoning without exceeding its reach or substance.

II. What Does Labonte Actually Mean for Veterans and What It Doesn’t

The most important contribution of LaBonte is not that it expanded entitlement to disability retirement, but that it corrected a misapprehension about correction board authority.[6] Before LaBonte, review boards frequently treated disability retirement as legally unavailable once a servicemember’s separation followed a court-martial, reasoning that granting such relief would necessarily require setting aside the conviction itself. [7] The Federal Circuit rejected that premise.[8]a.

a. What LaBonte Changed

LaBonte clarified that military correction boards are not categorically barred from granting disability retirement merely because a servicemember’s separation involved misconduct or a court-martial.[9] The court explained that recognizing a servicemember’s medical unfitness predating misconduct does not require vacating or disturbing a court-martial conviction and therefore does not exceed the board’s statutory authority under 10 U.S.C. § 1552.[10]

In practice, LaBonte forecloses a threshold defense that would end cases before they began. The assertion that the board simply lacks the power to consider disability retirement whenever a punitive discharge is involved.[11] LaBonte shifts judicial review away from jurisdictional dismissal and toward an analysis of a review board’s analysis.[12] Where boards once relied on categorical interpretations of statutory limits, courts must now assess whether the board reasonably exercised its authority.[13]

b. What LaBonte Did Not Change

At the same time, LaBonte is careful not to overstep.[14] The decision is careful not to overstep and does not hold that misconduct is excused by PTSD or TBI. Additionally, it does not presume medical unfitness simply because a veteran later received a VA disability rating.[15] The Federal Circuit did not order disability retirement, reweigh medical evidence, or diminish the deference owed to military boards in assessing fitness and entitlement to benefits.[16]

Further, LaBonte does not force review boards to disregard the procedural posture of a servicemember’s separation.[17] Review boards are free to determine a veteran’s fitness at the relevant time.[18] LaBonte does not require a particular outcome; instead, it turns the analysis to merit rather than authority.[19]

c. The Practical Boundary LaBonte Draws

Properly understood, LaBonte draws a clear boundary. It removes a jurisdictional shortcut, but it does not relax the substantive standards governing disability retirement.[20] For practitioners, the case opens the door to merits review; it does not guarantee what happens once inside.[21] Claims that rely on LaBonte without developing a persuasive medical and factual record are unlikely to succeed. Claims that use LaBonte to force boards to confront that record, however, now stand on firmer legal ground.[22]

III. The Value of Labonte: Reframing the Legal Question

For practitioners, the practical impact of LaBonte is not that it lowers the substantive bar for disability retirement, but that it changes how claims must be framed—and how errors must be preserved. [23] After LaBonte, the central task is no longer convincing a correction board to consider disability retirement in the face of misconduct.[24] The task now is forcing the board to explain, on the merits, why it declines to grant relief in a particular case.[25]

a. Shifting the Focus from Authority to Timing

Effective use of LaBonte requires careful attention to timing. The Federal Circuit’s reasoning rests on the distinction between misconduct as a basis for separation and medical unfitness that may have existed before that misconduct occurred.[26] Practitioners should therefore frame claims around whether the servicemember met medical retention standards at the relevant time—not around whether the misconduct was understandable, mitigated, or excusable.[27]

Arguments seeking to challenge a court-martial, minimize culpability, or reframe the misconduct as justified risk muddying the legal question LaBonte addresses.[28] A better approach is to focus on developing the medical and factual record to demonstrate that the disability existed and rendered the servicemember unfit before the events that ultimately triggered separation.[29]

b. Forcing Merits Engagement—and Preserving Error

LaBonte is a valuable tool for a compelling merits review. When the board has authority to refer a case to the Disability Evaluation System, it must provide an explanation for denying referral.[30] References to misconduct, conclusory medical summaries, or unexplained rejection of favorable evidence are no longer insulated by claims of statutory incapacity.[31] From a litigation perspective, this creates opportunities to preserve error by:

1. Identifying the precise date on which the servicemember allegedly remained fit for duty.
2. Explaining how conflicting medical evidence was weighed.
3. Addressing whether referral to a disability evaluation system should have occurred earlier.

When military personnel fail in any of these areas, there may be a valid claim for arbitrary and capricious review.[32]c.

c. Using LaBonte Without Overreaching

LaBonte should be deployed with restraint. Courts remain wary of arguments that appear to transform correction-board review into de novo adjudication.[33] Overreliance on LaBonte as a merits mandate risks undermining credibility and inviting deferential affirmance.[34] The most effective use of LaBonte is to eliminate denials of lack of authority, allowing advocates to focus on carefully developing the record, regulatory standards, and medical evidence to challenge the board’s reasoning.[35] In this sense, LaBonte rewards disciplined lawyering rather than aggressive rhetoric.

d. The Reinforcing Role of Doyon

Doyon v. United States reinforces this approach by emphasizing that statutory requirements—such as “liberal consideration” for PTSD- and TBI-related claims—must be applied in substance, not merely recited.[36] Together, LaBonte and Doyon signal that while courts will not substitute their judgment for that of military boards, they will insist that boards follow the law they are given and explain their decisions.[37]

IV. Doyon as a Companion Case: Process Matters as Much as Power

If LaBonte clarifies what correction boards may do, Doyon v. United States clarifies how they must do it. The Federal Circuit’s decision in Doyon reinforces that statutory protections for veterans—particularly the requirement of “liberal consideration” under 10 U.S.C. § 1552(h)—are not satisfied by rote acknowledgment or conclusory reasoning.[38]

In Doyon, the court rejected the government’s attempt to narrow liberal consideration to discharge characterization alone, holding instead that the statute and implementing guidance apply to requests to change narrative reasons for separation and related record corrections.[39] More importantly, the court made clear that liberal consideration is a substantive obligation.[40] Boards must engage with the evidence presented, including lay testimony and post-service medical diagnoses, and must explain how that evidence was weighed.[41]

Read together, LaBonte and Doyon reflect a consistent judicial message. Correction boards cannot avoid difficult questions by asserting lack of authority—LaBonte—nor can they discharge statutory duties through formalistic recitation—Doyon.[42] Authority and process are intertwined: boards must decide cases within their authority and do so using the standards Congress and the Department of Defense have prescribed.[43]

For practitioners, Doyon supplies the procedural backbone that gives LaBonte practical force.[44] A board that acknowledges authority but fails to apply liberal consideration meaningfully has not complied with the law, and that failure is subject to judicial review.[45]

V. How Practitioners Should Use Labonte: Optimistically but Carefully

Used correctly, LaBonte is a powerful advocacy tool. Used indiscriminately, it risks becoming background noise. The difference lies in how practitioners deploy it.

First, LaBonte should be used to defeat threshold objections—not to argue entitlement.[46] Its primary function is to prevent correction boards from refusing to engage disability retirement claims based on categorical assumptions about misconduct or court-martial history.[47] Once that barrier is removed, the work of persuasion begins.

Second, practitioners should resist framing claims solely in moral or equitable terms.[48] While equities may matter, LaBonte turns on statutory authority and timing, not sympathy.[49] Claims should be anchored in medical retention standards, contemporaneous evidence of unfitness, and regulatory obligations to refer servicemembers for disability evaluation when warranted.[50]

Third, LaBonte should be used to shape the administrative record with judicial review in mind.[51] Practitioners should press boards to make explicit findings, identify critical dates, and explain why favorable evidence was accepted or rejected.[52] A well-developed record not only improves the chances of success before the board but also preserves meaningful issues for review if relief is denied.[53]

Finally, restraint matters. Courts remain deferential to military decision-making, and arguments that treat LaBonte as outcome-determinative risk alienate the very audience practitioners must persuade.[54] The most effective advocacy treats LaBonte as an opening, not a shortcut.

VI. Conclusion

LaBonte v. United States does not guarantee disability retirement, excuse misconduct, or diminish the deference of military correction boards.[55] Instead, it removes a categorical barrier that has prevented claims from being heard on their merits.[56] For practitioners, LaBonte rewards careful framing, thoughtful record development, and attention to timing and statutory standards.[57] Properly understood, LaBonte opens the door to meaningful review without dictating outcomes.[58] Used thoughtfully, it improves decision-making quality even when relief is denied.

[1] See Labonte v. United States, 150 Fed. Cl. 552, 556–57, 563–64 (2020).

[2] See LaBante v. United States, 43 F.4th 1357, 1371 (Fed. Cir. 2022).

[3] See id.

[4] See id.

[5] Doyon v. United States, 58 F.4th 1235, 1242 (Fed. Cir. 2023).

[6] See LaBante, 43 F.4th at 1371.

[7] See id.; see also Kelly v. United States, 69 F.4th 887 (Fed. Cir. 2023) (rejecting correction-board reasoning grounded in an unduly narrow view of statutory authority).

[8] See LaBante, 43 F.4th at 1373–74.

[9] See id.

[10] See id. at 1371.

[11] See id.

[12] See id. at 1366–68.

[13] See id.

[14] See id. at 1364–65.

[15] See id.

[16] See id. at 1366–67.

[17] See id. at 1363–64.

[18] See id. at 1367-68.

[19] See id.

[20] See id.

[21] See id.

[22] See id. at 1367–69.

[23] See id. at 1364–67.

[24] See id.

[25] See id.

[26] See id at 1365–66.

[27] See id at 1367.

[28] See id at 1367–69.

[29] See id.

[30] See id.

[31] See id.

[32] See id.; 5 U.S.C. § 706(2)(A).

[33] See id. at 1366–67.

[34] See id. at 1367-69.

[35] See id.

[36] See Doyon v. United States, 58 F.4th 1235, 1242–45 (Fed. Cir. 2023).

[37] See LaBonte, 43 F.4th at 1366–69; see also Doyon, 58 F.4th at 1244–46.

[38] See Doyon, 58 F.4th at 1242–44; 10 U.S.C. § 1552(h).

[39] Doyon, 58 F.4th at 1240–43.

[40] See id.

[41] See id. at 1243–46.

[42] See LaBonte, 43 F.4th at 1365–67; see also Doyon, 58 F.4th at 1242–45.

[43] See LaBonte, 43 F.4th at 1366–69; see also Doyon, 58 F.4th at 1243–46.

[44] See LaBonte, 43 F.4th at 1366–69; see also Doyon, 58 F.4th at 1242–46.

[45] See LaBonte, 43 F.4th at 1366–69; see also Doyon, 58 F.4th at 1244–46.

[46] LaBonte, 43 F.4th at 1365–66.

[47] See id.

[48] See id. at 1364–66.

[49] See id.

[50] See id. at 1365–69.

[51] See id.

[52] See id.

[53] See id.

[54] See id.

[55] See id. at 1364–67.

[56] See id.

[57] See id. at 1365–69.

[58] See id.

Written By a Fall 2025 M-VETS Student Advisor.

Moving to a new school can be challenging, but if you and your family are new or returning to a Virginia public school system, this guide is here to help you ensure a smooth transition for your child into their new school.

1. Prior to Your Move:  Gather all of your child’s educational records from their current school, such as transcripts, report cards, and state test results (if applicable). If your child has an Individualized Education Program (IEP) or 504 Plan, make sure to collect current plans, eligibility documentation, and progress reports to ensure immediate continuity of special services or accommodations at their new school. For military families, unofficial student records are enough to enroll your child in comparable classes at their new school until the official paperwork is received.[1]

2. Determine Enrollment Eligibility: Ensure that your child is school-age. School-age students may enroll in the public-school division in which they reside.[2] A school-age person is “a person who will have reached his fifth birthday on or before September 30 of the school year and who has not reached twenty years of age on or before August 1 of the school year.”[3] Children of a person on active military duty may stay enrolled in a school division without charge when they relocate to military housing in another Virginia school division, as long as their parents receive an order for the move.[4] Children of a person on active military duty may remain enrolled in their current school division without charge when relocating outside the division, until the end of the school year, when their parents receive an order to move to a new duty station or deployment.[5]

Note that students with disabilities or students from low-income households who are below school-age might qualify for preschool services. Please contact your new school once you’ve decided where your child will attend to ask for more information.

3.  Find Your School Division and Schools: If you’re unsure of the school district where your new home will be or the corresponding schools, you can search for your new address here. Once you have determined the school your child will attend, call them to inquire about the school’s individual steps for registration. Most often, you will make an appointment with the school registrar to complete the registration process, though some school districts have an online registration process.

4. Contact Your Military School Liaison Officer: In Virginia, the Army, Navy, Air Force, and Marine Corps have school liaison officers who work with leaders of military commands and installations to connect military families with educational opportunities and important information about state and local school laws, policies, and standards.[6] Though it is not required for you to contact your liaison before enrolling your child in their new school, if you’re having education-related issues or have questions about procedures for military students in your new school district, you can contact your liaison for assistance.[7] You will need to know which division your child is enrolling in to determine which liaison to contact. You can find your designated liaison officer and their contact information here.

5.  Gather Documents: You will need a variety of documents to enroll your child at their new school. Most commonly, you will need your child’s birth certificate, the parent or guardian’s government-issued identification, your child’s health information, your child’s immunizations, proof of residency in the school district, and your child’s previous school records. If your child is covered by the Interstate Compact on Educational Opportunity for Military Children and lacks immunization documentation, they can enroll without proof of immunization and have up to 30 days from the enrollment date to get any necessary immunizations.[8]

6.  Students with Disabilities: If your child has a disability and had an IEP in place in a public-school division in another state, your new school district is required to provide your child with a free appropriate public education.[9] This includes services comparable to those in your child’s most recent IEP until the district conducts an evaluation, if necessary, and develops a new IEP, if appropriate, that complies with federal and state law.[10] If your child’s IEP due date is near the date of your move, consider requesting your current school to update the IEP to ensure it accurately reflects your child’s current strengths and needs.

If your child has a disability and you need help, either educationally or otherwise, Military OneSource offers consultants knowledgeable about disabilities and the various military programs and educational support available to you and your child.[11] Your installation will have a specific point of contact to help you coordinate support for your child with a disability, whether it involves educational, medical, or other needs. You can find your EFMP point of contact here or call 800-342-9647 for a free consultation.[12]

Please note that you will likely need to take additional steps or meet additional requirements to register your student, depending on your specific situation and school district. M-VETS wishes you and your family the best of luck with your move to Virginia!

[1] DoD Instruction 1342.29.

[2] See https://www.doe.virginia.gov/parents-students/for-parents/enrollment-in-virginia-public-schools.

[3] Id.

[4] Va. Code Ann. § 22.1-3 (2006).

[5] Id.

[6] See https://www.doe.virginia.gov/programs-services/student-services/military-families.

[7] Id.

[8] Va. Code Ann. § 22.1-360 (2010).

[9] See Individuals with Disabilities Education Act (2004).

[10] Id.

[11] https://www.militaryonesource.mil/benefits/special-needs-consultations/.

[12] Id.

Written by Fall 2025 M-VETS Student Advisor Daniel Krupa.

On April 16, 2024, the Supreme Court’s 7-2 ruling in Rudisill v. McDonough expanded educational benefits for some veterans, allowing up to 48 months of combined Montgomery GI Bill (“MGIB”) and Post-9/11 GI Bill (“PGIB”) benefits, overturning the Department of Veterans Affairs (“VA”) 36-month cap for those with dual entitlements.[1] As Justice Jackson stated, “Servicemembers who, through separate periods of service accrue educational benefits under both the Montgomery and Post-9/11 GI Bills may use either one, in any order, up to §3695(a)’s 48-month aggregate-benefits cap.”[2] (emphasis added) This ruling empowered veterans like James Rudisill, with multiple service periods—both pre-9/11 and post-9/11—to access benefits without “coordination” limits under 38 U.S.C. §3322(d).[3] The Rudisill decision impacts approximately 1.04 million veterans.[4] As a veteran currently using the 9/11 GI Bill, I understand firsthand how valuable these extra months can be for veterans, but ongoing litigation may broaden access further. Here’s how qualifying veterans can act now to expand their educational benefits:

I. Who Should Apply and Why:

Veterans with service qualifying for MGIB (2-3 years active duty, $1,200 contribution) and PGIB (90+ days post-9/11) who waived MGIB for PGIB may be eligible for an additional 12 months of PGIB, for a total of 48 months, under 38 U.S.C. §3695(a).[5] Veterans with an education claim decision before August 15, 2018, must apply manually for Rudisill benefits (approximately 379,000 veterans). Veterans with a claim decision on or after August 15, 2018 (approximately 660,000 veterans), will receive an automatic VA review within approximately 22 months and do not need to take action.[6] Suppose the veteran qualified for MGIB and PGIB, but their service was continuous. In that case, the veteran should still apply—filing with the VA is low-risk and preserves rights if litigation expands eligibility.[7] MGIB benefits expire 10 years after the last separation under 38 U.S.C. §3031; Post-9/11 GI Bill benefits expire 15 years after the last separation if the separation occurred before January 1, 2013; otherwise, there is no expiration.

II. Actionable Steps for Veterans to Apply:

1. Check Status: Log into VA.gov for entitlement updates. Veterans with an education claim decision on or after August 15, 2018, will receive an automatic VA review and do not need to take action. Check VA.gov for updates on your review status.[8]
2. Submit a Claim: Veterans with an education claim decision before August 15, 2018, should file VA Form 22-1995 online at https://www.va.gov/find-forms/about-form-22-1995/ and ensure the veteran selects “Go to the online tool.” Select the Rudisill review option when completing the online form. Include DD-214 and MGIB proof.[9] (Links for applying through the VA website can be found at the end of the article in the “Resources” section.)
3. Get Support: Call the VA Education and Training at 1-888-442-4551 or contact a Veteran Service Organization (“VSO”) (g., Veterans of Foreign Wars (“VFW”), Disabled American Veterans (“DAV”), American Legion) for free assistance. Veterans who are residents of Virginia can also contact the Virginia Department of Veterans Services (V-DVS) to receive additional support in developing and filing claims.
4. Meet Deadlines: Apply by October 1, 2030, for a new delimiting date.[10]

III. If Denied a Favorable Rudisill Decision:

If the VA denies the Rudisill claim, typically citing a “service break” requirement,[11] appeal under the Appeals Modernization Act (AMA)[12] with assistance from a VSO or M-VETS.[13] Select from three options based on the denial’s basis and your evidence (file within one year to preserve your effective date).[14]

1. Higher-Level Review (HLR): File VA Form 20-0996 for a 4-5 month review by a senior adjudicator. Best for legal errors, such as misapplying Rudisill’s election rights under 38 U.S.C. §3327(a).[15] No new evidence permitted.[16]
2. Supplemental Claim: Submit VA Form 20-0995 with new and relevant evidence (e.g., service records to support eligibility, such as for multiple education benefits). Suitable for addressing denials due to incomplete documentation or other deficiencies. If claiming benefits under multiple GI Bill programs, reference Rudisill to challenge restrictions under 38 U.S.C. §3322(d) if applicable, expect 4-5 months processing time.[17]
3. Board Appeal (Notice of Disagreement): File VA Form 10182 to request a Board of Veterans’ Appeals review, selecting from three dockets:
   1. Direct Review (no new evidence or hearing, 365 days),
   2. Evidence Submission (new evidence within 90 days, 18-24 months), or
   3. Hearing (virtual or in-person, 2-3 years).[18]

*Note that full resolution of AMA appeals can average over 5 years, depending on the docket and complexity.[19]

Suitable for complex cases, such as challenging Rudisill-related denials under 38 U.S.C. §3322(d), or when seeking a final VA decision, with potential appeal to the U.S. Court of Appeals for Veterans Claims for legal errors.[20]

4. If an initial appeal is denied, pursue further AMA review by filing a Supplemental Claim with new and relevant evidence, a Higher-Level Review if not previously pursued, or a Board Appeal (see bullets 1-3 for details). After a Board Appeal denial, an appeal to the U.S. Court of Appeals for Veterans Claims may be filed within 120 days for legal errors, such as misapplication of Rudisill’s holding on 38 U.S.C. §3322(d).[21]

IV. Ongoing Litigation:

A 2025 Federal Circuit lawsuit, led by Virginia’s Attorney General (“AG”), the VFW, and Iraq and Afghanistan Veterans of America, challenged the VA’s narrow interpretation of Rudisill, arguing that continuous-service veterans should qualify under Rudisill for 48 months of educational benefits too.[22] If the Virginia and VFW suit is successful, it could change education benefits for an additional 1.7 million veterans.[23] Monitor the VA, American Legion, VFW, and other VSOs for legal updates and to appeal educational upgrade denials to leverage future rulings.

V. Broader Implications:

48 months of GI Bill benefits can fund the attainment of advanced degrees or vocational training. Veterans with disability ratings (20%+) can pair Rudisill with rating increases via new claims to boost compensation.[24]

Conclusion:

Rudisill’s decision honors veterans’ service by providing the full 48 months of GI Bill educational benefits, but litigation may unlock these benefits for additional veterans in the future. Apply today under 38 U.S.C. §§3011, 3311.

Resources:

• VA-Rudisill eligibility questionnaire: https://benefits.va.gov/GIBILL/rudisill-decision-tree.asp
• Submit a VA educational benefits claim: https://www.va.gov/education/apply-for-education-benefits/application/1995/introduction?toggle=true
• Form 22-1995: https://www.va.gov/find-forms/about-form-22-1995/
• Apply for VR&E educational and employment benefits: https://www.va.gov/careers-employment/vocational-rehabilitation/apply-vre-form-28-1900/introduction
• M-VETS legal clinic: https://mvets.law.gmu.edu/
• Virginia Department of Veterans Services – https://www.dvs.virginia.gov/

[1] Rudisill v. McDonough, 601 U.S. 294 (2024).

[2] Id. at 294.

[3] Id. at 295.

[4] American Legion, Determine Your GI Bill Benefits Expansion Under Rudisill Decision, https://www.legion.org/information-center/news/veterans-benefits/2025/january/determine-your-gi-bill-benefits-expansion-under-rudisill-decision (last visited Sept. 3, 2025).

[5] U.S. Dep’t of Veterans, Impact of Rudisill Supreme Court Decision on Veterans’ Education Benefits, https://benefits.va.gov/gibill/rudisill.asp (last visited Sept. 3, 2025).

[6] Supra note 5.

[7] Virginia Office of the Attorney General, Virginia Takes Action in U.S. Federal Court to Guarantee Veteran Education Benefits, https://www.oag.state.va.us/media-center/news-releases/2897-august-14th-2025-virginia-takes-action-in-u-s-federal-court-to-guarantee-veteran-education-benefits (last visited Sept. 3, 2025).

[8] Supra note 5.

[9] Supra note 5.

[10] U.S. Dep’t of Veterans, Impact of Rudisill Supreme Court Decision on Veterans’ Education Benefits, https://benefits.va.gov/gibill/rudisill.asp (last visited Sept. 3, 2025).

[11] Supra note 10.

[12] U.S. Dep’t of Veterans Affairs, Appeals Modernization, https://www.va.gov/decision-reviews/appeals-modernization (last visited Sept. 3, 2025).

[13] U.S. Dep’t of Veterans Affairs, Find a Veterans Service Organization, https://www.va.gov/vso/ (last visited Sept. 3, 2025) (listing VSOs and legal clinics like M-VETS for appeal assistance).

[14] 38 U.S.C. §7105(d)(3) (2024) (requiring appeals within one year to preserve effective date under AMA).

[15] Rudisill, 601 U.S. at 295 (2024) (holding that veterans with dual entitlements may elect benefits under either GI Bill without coordination limits).

[16] 38 CFR §20.602 (2024) (prohibiting new evidence in HLR).

[17] 38 U.S.C. §5108 (2024) (requiring new and relevant evidence for supplemental claims under the Appeals Modernization Act); 38 CFR §3.2501 (2024) (defining new and relevant evidence); U.S. Dep’t of Veterans Affairs, Decision Reviews and Appeals, https://www.va.gov/decision-reviews/ (last visited Sept. 3, 2025) (noting average 4-5 month processing for supplemental claims).

[18] 38 U.S.C. §7105 (2024) (governing Board Appeals under the AMA); 38 CFR §20.200 (2024) (defining Board Appeal procedures); U.S. Dep’t of Veterans Affairs, Board of Veterans’ Appeals, https://www.bva.va.gov (last visited Sept. 3, 2025) (detailing docket options and processing times).

[19] Board of Veterans’ Appeals Annual Report (Fiscal Year 2024) (noting average AMA appeal resolution can exceed 5 years for complex cases).

[20] 38 U.S.C. §7252 (2024) (establishing jurisdiction of U.S. Court of Appeals for Veterans Claims for legal errors); Rudisill, 601 U.S. 294 (2024).

[21] 38 U.S.C. §7266(a) (2024) (requiring appeal to the U.S. Court of Appeals for Veterans Claims within 120 days); 38 U.S.C. §5108 (2024) (allowing Supplemental Claims with new and relevant evidence); 38 CFR §3.2500 (2024) (outlining AMA review options after a denial); Rudisill v. McDonough, 601 U.S. 294 (2024).

[22] Commonwealth of Virginia v. Secretary of Veterans Affairs, Petition for Review at 5–9 (Fed. Cir. filed Aug. 14, 2025).

[23] Id.

[24] Rudisill, 601 U.S. at 295; 38 U.S.C. § 1114 (2024).

Written By Summer 2025 M-VETS Student Advisor Anthony Mancini.

Introduction

Preparing for a hearing before the Board of Veterans’ Appeals (BVA) is a critical, yet often daunting task for any advocate—especially for law students working on pro bono cases where your client is a veteran who has waited several years for their appeal to be heard. The stakes could not be higher. These hearings may significantly impact a veteran’s financial stability, access to healthcare, and recognition of service-connected injuries or illnesses.

For background, the BVA is part of the U.S. Department of Veterans Affairs (VA). It is an appellate body responsible for reviewing appeals from veterans regarding benefits decisions made by local VA offices.[1] Veterans who disagree with a decision related to service connection, disability ratings, effective dates, or other benefits may request multiple tracks of appeal, including a hearing before a Veterans Law Judge (VLJ) at the BVA.[2] These VLJs conduct a de novo review of the case—meaning they look at the claim for the first time and are not bound by prior decisions.[3]

Because the BVA is an appellate body, hearings focus heavily on the evidence and the legal standards governing veterans’ claims. That’s why methodical, strategic preparation is key. This guide outlines the major steps required to prepare for a BVA hearing, offering advice I learned through my own experience representing a veteran before the BVA.

1. Start with the BVA Brief

The first—and arguably most important—step in your preparation is reading the BVA brief carefully and thoroughly. At its core, this brief serves as a roadmap outlining the issues that the Mason Veterans and Servicemembers Legal Clinic (M-VETS) is asking the Board to resolve. Fortunately, these briefs are typically short (usually spanning three to five pages) and provides an excellent opportunity to properly assess what M-VETS is asking of the BVA. As you read, take notes to identify the key issues presented. Is the veteran appealing a denial of service connection? Is the dispute about the effective date of benefits or the assigned rating percentage? Understanding the scope of the appeal will allow you to tailor your legal argument and structure your client’s testimony later in the process.

Next, identify every document cited in the BVA brief. These source materials—ranging from private medical records and rating decisions to service treatment records (STRs)—form the evidentiary foundation of M-VETS’s position. Read these documents as many times as necessary until you have a complete understanding of their contents. Once you’ve listed all the cited evidence, ensure you can locate each document in the client’s claims file. If something is missing or you’re having difficulty finding a document in the T-Drive, notify the M-VETS director (Mr. MacArthur) immediately. Missing records—especially those referenced in the brief—can create significant gaps in your presentation and severely hamper your efforts at the hearing. It’s essential to close that loop as early as possible.

2. Organize and Analyze the Client File

After reviewing the BVA brief and verifying the presence of all source documents, the next step is to immerse yourself in the client’s full claims file. For the Student Advisors (SAs) in M-VETS, this part of the process is familiar and can be overwhelming. The file may contain hundreds, sometimes thousands, of pages of service records, medical evidence, correspondences, and decisions. To stay organized, begin by constructing a timeline of your client’s relevant service and medical history. Note key points such as when the veteran served, what injuries or conditions arose during that time (with guidance from the BVA brief), and how those conditions evolved after discharge. Creating a timeline can help contextualize the evidence and allow you to better spot patterns or inconsistencies.

As you analyze the file, take meticulous notes. Pay particular attention to STRs, Compensation and Pension (C&P) exam reports, private medical opinions, prior rating decisions, and any lay statements from the veteran or supporting witnesses. Relevance of these documents will be determined largely by the issues outlined in the BVA brief. Be sure to note documents that both support your theory of the case and weaken your client’s position. As a general rule on this, it is better to be overly critical than underprepared. If you come across a piece of negative evidence that could, even marginally, harm your case, make a note of it. It’s far better to anticipate a problem than to be caught off guard during the hearing. You will almost certainly feel lost during this step—maybe more than once. That’s completely okay! I did too. Don’t hesitate to ask Mr. MacArthur if you’re stuck or unsure of whether a certain piece of evidence is relevant.

Once you have identified the key pieces of evidence, consider creating a summary chart. This will help you track which documents support (or contradict) the elements of your client’s claim and align your legal strategy with the available record. This can be particularly useful when dealing with a large volume of records that must be organized chronologically.

3. Research the Background Law

Legal research is always an important part of hearing preparation—even in cases that appear to be fact-intensive. Once you’ve mastered the factual record and the issues raised in the BVA brief, the next step is determining which legal standards govern the outcome. Doing so will not only improve your understanding, but will also help streamline your drafting and strategy for the hearing.

The amount of time you’ll need for research depends on the complexity of the BVA brief. Regardless, I began by reviewing relevant statutes and regulations, typically found in Title 38 of the U.S. Code and the Code of Federal Regulations (CFR). These will often include provisions related to service connection, the burden of proof (commonly “at least as likely as not”), and diagnostic criteria from the VA Schedule for Rating Disabilities (VASRD). If applicable, then look to precedent cases from the U.S. Court of Appeals for Veterans Claims (CAVC) for guidance. You may also look to past BVA decisions, as they can offer insight into how the BVA has handled similar cases. However, note that BVA decisions are not binding authority on subsequent hearings, so be cautious in their usage.[4] Finally, secondary sources may also be useful for context, but they should be a small percentage of your research in this step.

Once you’ve completed your research, consider drafting a short legal outline. This document should summarize the relevant law and how it applies to your client’s facts. It does not need to be lengthy—one page is often good enough. In some cases, especially if the legal issue is straightforward, this step may even be unnecessary. Still, having a legal outline ready can be invaluable during the hearing, particularly if the judge asks a pointed legal question or requests clarification on the applicable standard.

4. Engage Early and Often with Your Client

I cannot stress enough how important this step is—not only for the hearing, but for your future success as a lawyer. Anyone who has been in M-VETS long enough knows that your relationship with the client is foundational to your effectiveness as an advocate. Therefore, the earlier you contact the client, the more time you have to gather important information and begin building a relationship. Establishing this early helps the client develop trust in your ability to represent them effectively when the time comes. So, as soon as possible, schedule an introductory meeting with your client. In that first session, explain your role and outline the timeline for preparation.

You should then plan to meet with the client several more times over the course of your representation. Use these sessions to dig into your client’s personal story. Ask about any relevant injuries or illnesses, treatment history, and the ways in which their condition has affected their daily life. These details are vital for preparing testimony and for shaping a compelling narrative to present at the hearing. You will also begin rehearsing the client’s testimony during these sessions, as outlined in more detail later in this guide.

Another key purpose of these meetings is to manage expectations. Many veterans—understandably—are unfamiliar with the appeals process and may have misconceptions about what the BVA can and cannot do. As their advocate, it is your responsibility to clarify the relevant legal standards and explain the range of possible outcomes. The better informed your client is, the more confidently they can testify and participate in their case.

5. Draft Strategically and Early

Drafting your hearing materials—your opening statement, direct examination questions, and closing argument—early in the process will give you time to revise and receive feedback from Mr. MacArthur. This process will take considerable time and usually involves multiple rounds of revision. You may feel stuck during the drafting phase, which is completely normal. When that happens, keep in mind one core tenet that can guide you: the three documents should parallel each other in content, but each should accomplish a different purpose. In other words, while there will be some overlap in the information presented, simply repeating the same content across all three documents is a serious mistake.

When you begin drafting, you should start with your closing argument. Why? Because it serves as your guidepost—it reminds you of the specific evidence that must be introduced during the hearing, either through testimony or documentation. If key evidence is not entered into the record, the VLJ may not consider it. The closing argument is also your final opportunity to leave the judge with a clear and persuasive explanation of why your client should prevail. To make the most of your closing, clearly outline the legal standard at issue and explain how the evidence—both documentary and testimonial—satisfies that standard. Refer back to your research from earlier in the process to assist you. End your closing by directly requesting the relief you are seeking, whether that is service connection, an increased rating, or an earlier effective date.

Next, draft your direct examination questions. These questions are designed to guide your client’s testimony and allow them to share their story in their own words. Build a chronology using the timelines you created, and use open-ended questions that elicit facts supporting your legal theory. For instance, ask about the onset of symptoms during service, the progression of the condition, and how the disability currently impacts your client’s daily life. This is also your opportunity to walk through most of the key evidence referenced in your closing argument, and to ask clarifying questions as needed. Importantly, BVA hearings are non-adversarial and not bound by the Federal Rules of Evidence.[5] That means you are permitted to ask leading questions, which can be useful when trying to clarify the record or focus the judge’s attention on specific facts.[6]

Finally, you’ll draft your opening statement. This is your chance to set the tone for the hearing and frame the case for the VLJ. Your opening should introduce your client, succinctly summarize the issue on appeal, and provide a brief preview of the key evidence that will come out during direct examination.

6. Practice, Practice, Practice

As a simple rule, if your client is unprepared for the hearing, then you will have both lost the case and have failed as their advocate. To avoid this, plan to conduct several mock testimony sessions before the hearing. These rehearsals serve multiple purposes: they build the client’s confidence, help refine their narrative, and allow you to correct inconsistencies or unclear statements. Moreover, it will also help you with nerves and better prepare you for the actual hearing. Per previous sections in this guide, you will most likely be conducting most of these mock sessions either over the phone or over Zoom.

During your first session, you should walk the client through the structure of the hearing and explain what they can expect. Afterwards, start having the client practice answering the direct examination questions you’ve prepared. As the client gets more comfortable, you should ask follow-up or clarifying questions—even if you did not prepare them ahead of time. The more familiar the client is with the hearing process, the more comfortable and credible they’ll appear when they testify in front of the VLJ.

7. Collaborate Frequently with Mr. MacArthur

I cannot stress this enough. Mr. MacArthur is the most valuable resource at your disposal. He has been practicing law for a long time, and has many valuable insights on the BVA hearing process. Hence, you should make it a point to schedule regular check-ins with him throughout the preparation process. These meetings are a great opportunity to get feedback on your drafts, and to ask any questions you have about the law, procedure, or client management.

It may be intimidating to ask for help at times. You may think that it makes you “lesser than” for not getting the right answer on your own. That does not make you unqualified, it means you are on the right path. The best piece of advice I can give on this is to be open to constructive criticism, and don’t let that criticism discourage you further from getting help. Throughout my BVA hearing, I had revised the hearing documents outlined in this guide at least ten different times. It was sometimes frustrating getting what I perceived as “nitpicked” by Mr. MacArthur on multiple rounds of revisions. However, I credit this approach as the biggest reason why my BVA hearing went so well. Having that collaborative effort during your preparation is key to delivering a polished, persuasive presentation once the hearing comes around.

8. Build Your Trial Binder

One of the last steps in your preparation is to assemble a comprehensive trial binder. This is your go-to resource during the hearing, and it should be organized. Include all critical pieces of evidence, such as the hearing notice, the BVA brief, a copy of the client’s service and medical records, your legal outline (if applicable), and your hearing documents. Mr. MacArthur will provide you with a binder using tabbed sections and you will create a table of contents. Thus, you should be able to easily flip to the right section during the hearing. What helped me is to put the documents in reverse chronological order, that way you are able to quickly find and reference them. This will allow you to respond effectively to questions and maintain a smooth flow during the hearing.

Conclusion

Preparing for a BVA hearing is a rigorous process that demands your attention to detail, a clear understanding of the law, and a deep commitment to your client and their story. For veterans who have waited a long time for justice, your detailed preparation could make the difference when the time comes. Approach the process with the seriousness and care that their service deserves, and your BVA hearing will also be a success.

[1] 38 U.S.C. § 7104(a).

[2] Id.

[3] 38 C.F.R. § 20.300(a).

[4] 38 C.F.R. § 20.1303.

[5] M21-1, Part III, Subpart iv, 5.1.

[6] Id.

Written by Summer 2025 M-VETS Student Advisor Andrew West.

In June 2025, the Supreme Court issued a unanimous decision in Soto v. United States that will result in substantial retroactive payments to over 9,000 combat-disabled veterans.[1] The ruling marked a major legal victory not only for the class of veterans involved, but also for the National Veterans Legal Service Program (NVLSP), a nonprofit pro bono organization that has been fighting for veterans’ rights for more than four decades.[2] This case serves as a powerful example of how legal advocacy can produce life-changing results for vulnerable populations. It is the kind of impact that mirrors the mission and values of the Mason Veterans and Servicemembers Legal Clinic (M-VETS) at George Mason University, where students and supervising attorneys provide free legal representation to military veterans facing complex legal challenges.[3]

At the heart of the case was the Combat-Related Special Compensation (CRSC) statute, codified at 10 U.S.C. § 1413a. CRSC allows veterans with combat-related disabilities to receive tax-free compensation that offsets the retirement pay they lose due to their receipt of VA disability benefits.[4] In practice, CRSC is critical to ensuring that combat-disabled veterans receive the full value of the benefits they earned through their service. However, for years, the Department of the Navy and other branches of the military have limited veterans’ retroactive CRSC payments to just six years from the date of application, citing the Barring Act, 31 U.S.C. § 3702(b).[5]

This six-year gap left many veterans, particularly those unaware of their eligibility or struggling with physical and mental health conditions, without the full compensation they deserved.[6] Simon Soto, a retired Marine Corps veteran, was among them. Represented by NVLSP and pro bono counsel from Sidley Austin LLP, Soto filed suit challenging the application of the Barring Act to CRSC claims.[7] NVLSP argued that the CRSC statute does not impose any retroactivity limitation and therefore supersedes the general limitations of the Barring Act.[8]

After several years of litigation, including a favorable ruling in the district court and a reversal by the U.S. Court of Appeals for the Federal Circuit, the case made its way to the Supreme Court.[9] On June 12, 2025, the Court unanimously held that the Barring Act does not apply to CRSC claims.[10] Writing for the Court, Justice Kagan concluded that Congress had enacted a specific compensation scheme for combat-disabled veterans that was plainly designed to operate independently of the general claims limitation statute.[11] The ruling restores the right of thousands of veterans to receive the full amount of CRSC for every eligible month, not just the six years preceding their application.[12]

The precise financial impact of the decision is not yet known, as neither NVLSP nor the Department of Defense have released a total payout estimate. However, given that the affected class includes over 9,000 veterans and that CRSC payments can range from hundreds to thousands of dollars per month, the aggregate amount could easily reach tens of millions of dollars. For many veterans, this is a long-overdue acknowledgement of the sacrifices they made and a correction of bureaucratic injustice.

The decision in Soto reflects a growing recognition by the judiciary that statutory benefit schemes for veterans must be interpreted in ways that honor their intent and practical function. It reinforces a broader judicial trend favoring liberal construction of veterans’ benefit laws, consistent with the remedial nature of such statutes. While the legislative process is often slow to correct systemic problems, public interest litigation can achieve substantial results. In this case, it ensured that thousands of veterans will finally receive what they earned through service and sacrifice.

The victory would not have been possible without the sustained efforts of NVLSP, whose mission is to ensure that veterans and active-duty servicemembers receive the benefits to which they are entitled.[13] NVLSP’s Lawyers Serving Warriors project provides free legal services to veterans with significant physical and mental health disabilities.[14] In the Soto case, NVLSP worked alongside attorneys from Sidney Austin, who provided high-level litigation support on a pro bono basis.[15] Together, they navigated nearly a decade of litigation through multiple courts, culminating in the Supreme Court’s landmark ruling.[16]

For those of us engaged in clinical legal work, especially in programs like M-VETS, Soto serves as an inspiration. It shows how skilled legal advocacy, even by a small nonprofit, can compel the federal government to change its practices and comply with the law. At M-VETS, students regularly handle discharge upgrades, VA appeals, and other legal matters that, while smaller in scale, can be just as transformative for the individual veteran. The Soto decision is a reminder that whether in a Supreme Court brief or a student-prepared memo, pro bono work on behalf of veterans has the power to deliver justice where it is most urgently needed.

[1] Soto v. United States, 605 U.S. 360, 145 S. Ct. 1677 (2025).

[2] National Veterans Legal Service Program, About NVLSP, https://nvlsp.org (last visited Aug. 9, 2025).

[3] Mason Veterans and Servicemembers Legal Clinic, About M-VETS, https://mvets.law.gmu.edu (last visited Aug. 9, 2025).

[4] 10 U.S.C. § 1413a (2002).

[5] 31 U.S.C. § 3702(b) (1982).

[6] See NVLSP, Supreme Court Unanimously Rules for 9,000 Combat-Disabled Veterans to Receive Full Retroactive Combat-Related Special Compensation (June 12, 2025), https://nvlsp.org/supreme-court-unanimously-rules-for-9000-combat-disabled-veterans-to-receive-full-retroactive-combat-related-special-compensation.

[7] Id.

[8] Id.

[9] Sidley Austin LLP, Sidley Wins Major Pro Bono Supreme Court Victory on Behalf of Combat-Wounded Veterans (June 12, 2025), https://www.sidley.com/en/newslanding/newsannouncements/2025/06/sidley-wins-major-pro-bono-supreme-court-victory-on-behalf-of-combat-wounded-veterans.

[10] Soto, at 361.

[11] Id. at 370.

[12] Id. at 362.

[13] NVLSP, supra note 6.

[14] Id.

[15] Sidley Austin LLP, supra note 9.

[16] Id.

Written by Spring 2025 M-VETS Student Advisor Alexandria Ryan.

History

In 2016 at the end of the Obama Administration, the former Secretary of Defense, Ashton Carter, authorized transgender Servicemembers to openly serve for the first time.[1] But, the policy was short-lived when President Trump took office in 2017, and ordered the Department of Defense (DoD) to exclude transgender individuals from military service.[2] In promulgating the new policy, former Secretary of Defense, James Mattis, directed an expert panel to review the impact of transgender Servicemembers on “military readiness and lethality.”[3] The Mattis Policy incorporated the panel’s recommendations and permitted Servicemembers who were diagnosed with gender dysphoria during military service to continue service if they adhered to their birth sex.[4] It also allowed Servicemembers, who were diagnosed with gender dysphoria while the Carter Policy was in effect, to continue service in their preferred gender.[5] But, those who had already transitioned were disqualified from service.[6] In 2021, former President Biden reversed President Trump’s policy and issued an executive order allowing transgender Servicemembers to serve openly.[7]

Current Policy

This year, President Trump took office and for a second time, placed strict limitations on transgender personnel serving in the military.[8] Accordingly, under Secretary of Defense Pete Hegseth, the DoD issued a policy memorandum generally disqualifying anyone from military service who either has gender dysphoria or has undergone medical interventions to treat gender dysphoria.[9]

Under the Hegseth Policy, Servicemembers who have a current diagnosis, history, or symptoms of gender dysphoria will be administratively separated unless they are granted a waiver.[10] Servicemembers may be considered for a waiver on a case-by-case basis if there is a compelling government interest in retaining them that directly supports warfighting capabilities.[11] The Servicemember must (1) demonstrate that he or she has been stable for 36 consecutive months in the Servicemember’s sex; (2) demonstrate that he or she has never attempted to transition to any other sex; and (3) be willing and able to adhere to all applicable standards.[12]

Servicemembers without a waiver are eligible for referral to the Disability Evaluation System (DES) only if they have a co-morbidity, or other qualifying condition prior to processing for administrative separation.[13] Under the Hegseth Policy, characterization of service will be honorable unless other circumstances justify a lower characterization.[14] In effect, the policy has no impact on characterization of service. Furthermore, all Servicemembers who are involuntarily separated under this policy, are entitled to an administrative separation board or a board of inquiry.[15] Those within two years of retirement from active duty service are eligible for early retirement.[16]

In response to the policy, a group of active-duty transgender Servicemembers, transgender individuals who would like to join the military, and a human rights organization challenged the policy in Shilling v. United States.[17] The plaintiffs requested the federal district court to grant a preliminary injunction preventing the executive branch from enforcing the Hegseth Policy.[18] The district court granted the injunction and the government appealed.[19] Ultimately, the Supreme Court granted a stay of the preliminary injunction on May 6, 2025.[20] Therefore, the DoD may now enforce the Hegseth policy pending the court of appeals disposition.[21]

The lawsuit filed in response to the Mattis Policy demonstrates the uncertainty surrounding the Shilling case.[22] In Karnoski v. Trump, the federal district court granted a preliminary injunction preventing enforcement of the Mattis Policy.[23] The court of appeals found that the district court may have been justified in dissolving the injunction because the Mattis policy had significantly changed the original policy.[24] The parties ultimately agreed to permit enforcement of the Mattis Policy while the case was pending.[25] The district court eventually dismissed Karnoski v. Trump after President Biden took office and revoked the policy at issue.[26] Therefore, Shilling may not be resolved during the Trump administration.

Moving Forward

In light of the fluctuations over the past ten years, there is a chance that the next administration will relax the retention and accession policies for military personnel with gender dysphoria. Thus, veterans separated on the basis of gender dysphoria may be permitted to reenter the military in the future.[27]

If a veteran meets the DoD eligibility requirements, he or she may petition a Discharge Review Board (DRB) to change the character of service, narrative reason for separation, or Reentry Code (RE Code).[28] The DRB is authorized to change the RE code if an applicant’s narrative reason or characterization of discharge is also changed, and that change warrants revision of the previously issued RE Code.[29] But a DRB cannot change the reason for discharge from or to a Physical Disability.[30] Thus, an application to the Board for Correction of Military/Naval Records (BCM/NR) is appropriate if a veteran (1) wants to challenge their disability status, (2) was discharged for a disabling condition and would like to change the narrative reason, or (3) would like to change the RE Code individually without other changes.[31] Military recruiters may also provide an RE Code waiver if authorized at the time of reentry.[32]

Generally, to receive benefits and services from the Department of Veterans Affairs (DVA), the veteran’s character of discharge must be honorable, under honorable conditions, or general.[33] But veterans that receive an undesirable or bad conduct discharge may qualify for a compelling circumstances exception.[34] DVA benefits include disability compensation, health care, education, housing assistance, life insurance, and family member benefits.[35] Moving forward, individuals discharged for gender dysphoria should continue to monitor the policy changes and take advantage of DoD and DVA benefits and services.

[1] Shilling v. United States, No. 25-cv-241-BHS, 2025 U.S. Dist. LEXIS 57869, at *8 (W.D. Wash. Mar. 27, 2025).

[2]Presidential Memorandum for the Sec’y of Def. and the Sec’y of Homeland Sec., Military Service by Transgender Individuals (Aug. 25, 2017), https://trumpwhitehouse.archives.gov/presidential-actions/presidential-memorandum-secretary-defense-secretary-homeland-security/.

[3] Shilling, 2025 U.S. Dist. LEXIS 57869, at *11.

[4] Id. at *10-11.

[5] Karnoski v. Trump, 926 F.3d 1180, 1191 (9th Cir. 2019).

See Shilling, 2025 U.S. Dist. LEXIS 57869, at *11.

[6] Karnoski, 926 F.3d at1199.

[7] Exec. Order No. 14004, 86 Fed. Reg. 7471 (Jan 25, 2021).

[8] Exec. Order No. 14168, 90 Fed. Reg. 8615 (Jan 20, 2025); Exec. Order No. 14183, 90 Fed. Reg. 88757 (Jan. 27, 2025); Shilling, 2025 U.S. Dist. LEXIS 57869 at *4.

[9] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance on Prioritizing Military Excellence and Readiness (Feb. 26, 2025); U.S. Dept. of Def., DOD: Gender Dysphoria Incompatible With Military, Service Members Must Serve in Accordance With Sex (Feb. 28, 2025), https://www.defense.gov/News/News-Stories/Article/Article/4086111/dod-gender-dysphoria-incompatible-with-military-service-members-must-serve-in-a/#:~:text=In%20addition%20to%20affecting%20existing,also%20disqualified%20for%20military%20service.

[10] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance on Prioritizing Military Excellence and Readiness 4.3(c) (Feb. 26, 2025). See Sec’y of Def. Memorandum,  Prioritizing Military Excellence and Readiness (Feb. 7, 2025).

[11] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance of Prioritizing Military Excellence and Readiness 4.3(c) (Feb. 26, 2025).

[12] Id.

[13] Id.

[14] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance of Prioritizing Military Excellence and Readiness 4(e) (Feb. 26, 2025).

[15] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance of Prioritizing Military Excellence and Readiness 4.4(a)(6)-(7) (Feb. 26, 2025).

[16] Memorandum from the Off. of the Under Sec’y of Def. Pers. and Readiness, Additional Guidance of Prioritizing Military Excellence and Readiness 4.4(a)(8) (Feb. 26, 2025).

[17] Shilling, 2025 U.S. Dist. LEXIS 57869 at *26-28.

[18] Id. at *6-8.

[19] Shilling v. Trump, No. 25-2039, 2025 U.S. App. LEXIS 9437, at *5 (9th Cir. Apr. 18, 2025).

[20] United States v. Shilling, No. 24A1030, 2025 U.S. LEXIS 1831, at *1 (May 6, 2025);

Shilling, 2025 U.S. App. LEXIS 9437 at *5.

[21] Shilling, 2025 U.S. App. LEXIS 9437 at *5.

[22] See id.

[23] Karnoski, 926 F.3d at 1190.

[24] Id. at 1199.

[25] Shilling, 2025 U.S. Dist. LEXIS 57869, at *12.

[26] Order of USCA, No. 2:17-cv-01297, Dkt. 689 (Aug. 31, 2021), https://files.eqcf.org/cases/w-d-wash-217-cv-01297-docket/.

[27] 10 U.S.C. § 1552.

[28] DoDI 1332.28, Discharge Review Board (DRB) Procedures and Standards (Apr. 4. 2004).

[29] See DoDI 1332.28, Discharge Review Board (DRB) Procedures and Standards (Apr. 4. 2004).

[30] Id.

[31] 32 C.F.R. § 723 (2025); DoDD 1332.41, Boards for Correction of Military Records (BCMRs) and Discharge Review Boards (DRBs) (Mar. 8, 2004); Air Force Review Boards Agency, Air Force Board For Correction of Military Records (AFBCMR) (last visited May 15, 2025), https://afrba-portal.cce.af.mil/#board-info/bcmr; Sec’y of the Navy, Board for Correction of Naval Records (last visited May 15, 2025), https://www.secnav.navy.mil/mra/bcnr/Pages/FAQ.aspx.

[32] Army Review Boards Agency, ARBA Case Tracking System Online (last visited May 15, 2025), https://actsonline.army.mil/gui/ContactAnswer82.aspx.

[33] U.S. Dep’t of Veterans Affs., Applying for Benefits and Your Character of Discharge, Veterans Benefits Administration (Apr. 16, 2025), https://www.benefits.va.gov/benefits/character_of_discharge.asp.

[34] Id.

[35] U.S. Dep’t of Veterans Affs., Explore VA benefits and health care (last visited May 15, 2025), https://www.va.gov/.

Written by Spring 2025 M-VETS Student Advisor Samantha Hargis.

Background

The VA appeals process allows veterans to challenge decisions about their disability benefits. Historically, the system was slow and complex, often taking years to resolve appeals. In 2019, the Appeals Modernization Act (“AMA”) introduced a streamlined process with three lanes: supplemental claims, higher-level reviews, and direct appeals to the Board of Veterans’ Appeals (“BVA”), which offers multiple review options, including hearings.[i] Despite improvements, the system faces mounting pressure due to increased caseloads from laws like the PACT Act.[ii] Recent mass firings at the VA in 2025 threaten to exacerbate delays, particularly in hearing-based appeals, as fewer staff remain to handle growing backlogs.

Impact of VA Firings on Appeals Processing

In 2025, the Trump Administration took office and implemented staff reductions across multiple federal agencies.[iii] This includes the VA, top-level officials at the agency were told that there is an objective to cut enough employees to return to 2019 staffing levels of just under 400,000.[iv] This means that more than 80,000 workers would be cut from the agency, after the VA’s expansion under the Biden administration.[v] These reductions have raised concerns about the VA’s capacity to manage its workload effectively.

The BVA, responsible for handling appeals, has already been grappling with substantial backlogs. As of late 2024, average decision times for Direct Docket appeals had decreased from over 640 days in March 2024 to just above 500 days by December 2024.[vi] However, appeals requiring hearings still face prolonged wait times, often exceeding two years.[vii] Not only is there a long waitlist for VA appeals, but there is also a legacy backlog that as of January 2025, there were roughly 201,730 pending appeals.[viii]

The recent layoffs threaten to reverse the improvements from the AMA. With fewer personnel to process appeals, veterans may experience longer delays in receiving decisions. Additionally, the implementation of the PACT Act has expanded the scope of appeals, further increasing the BVA’s workload.

What This Means for Veterans

The firings at the VA are having a significant impact on veterans in more ways than one. An additional issue that arises out of the firings of VA employees is that more than 25% of the VA’s workforce is comprised of veterans.[ix] Veterans awaiting appeal decisions should prepare for potential delays. With fewer staff members processing claims, the system could become overloaded, leading to delays.[x] While the VA has made progress in reducing wait times, the recent staff reductions and increased workload may hinder further progress. Veterans are encouraged to stay informed about their appeal status and consider seeking assistance from accredited representatives to navigate the process.

[i] U.S. Dep’t of Veterans Affs., U.S. Dep’t of Veterans Affairs, Board of Veterans’ Appeals (last visited May 13, 2025), https://department.va.gov/board-of-veterans-appeals/.

[ii] U.S. Dep’t of Veterans Affs., In Two Years of the PACT Act, VA Has Delivered Benefits and Health Care to Millions of Toxic-Exposed Veterans and Their Survivors, VA News (Aug. 9, 2024), https://news.va.gov/press-room/in-two-years-of-the-pact-act-va-has-delivered-benefits-and-health-care-to-millions-of-toxic-exposed-veterans-and-their-survivor/ .

[iii] Stephen Groves, Trump Administration Plans to Cut 80,000 Employees from Veterans Affairs, According to Internal Memo, AP News (Mar. 5, 2025), https://apnews.com/article/veterans-affairs-cuts-doge-musk-trump-f587a6bc3db6a460e9c357592e165712.

[iv] Id.

[v] Mike Stone et al., U.S. Plans to Fire 80,000 Veterans Affairs Workers as Part of Trump Cuts, Sparking Backlash, Reuters (Mar. 5, 2025), https://www.reuters.com/world/us/department-veterans-affairs-cut-80000-jobs-part-trump-cuts-2025-03-05/.

[vi] U.S. Dep’t of Veterans Affs., More Board Personnel Address Pending AMA Appeals and Wait Times, Board of Veterans’ Appeals (last visited May 13, 2025), https://department.va.gov/board-of-veterans-appeals/decision-wait-times/more-board-personnel-address-pending-ama-appeals-wait-times/.

[vii] Id.

[viii] U.S. Dep’t of Veterans Affs., Claims Backlog,  u.s. dep’t of Veterans Affairs (last visited May 13, 2025), https://www.benefits.va.gov/reports/mmwr_va_claims_backlog.asp

[ix] Stephen Groves, Trump Administration Plans to Cut 80,000 Employees from Veterans Affairs, According to Internal Memo, AP News (Mar. 5, 2025), https://apnews.com/article/veterans-affairs-cuts-doge-musk-trump-f587a6bc3db6a460e9c357592e165712.

[x] Dan Pearce, 83,000 VA Jobs at Risk: How Potential DOGE Cost-Cutting Plans Could Impact Your VA Benefits, VA Claims Insider (Mar. 6, 2025), https://vaclaimsinsider.com/83000-va-jobs-at-risk-how-potential-cost-cutting-plans-could-impact-your-va-benefits/#potential-impact-on-va-disability-claims.

Written By Fall 2024 M-VETS Student Advisor Curtis Power.

1. Structure and Discipline Military life is highly regimented, with clear expectations, rigorous training, and a unifying mission.15 VTCs replicate this structured environment, requiring regular court appearances (bi-weekly in the program’s early phases), mandatory attendance at treatment sessions, and frequent, random substance use testing.16 Veterans, accustomed to structure from their time in the armed forces, often respond positively to this approach.17
2. Peer Mentorship Veteran mentors are considered the “secret sauce” of VTCs.18 These mentors, who are veterans themselves, provide guidance, encouragement, and accountability.19 They foster camaraderie and support while assisting participants with housing, employment, transportation, disability claims, discharge status appeals, and connecting them to local, state, and federal resources.20 This peer-to-peer interaction ensures veterans are not left behind.
3. Incentives and Accountability VTCs employ a system of rewards and consequences to motivate participants. Positive behaviors—such as attending treatment sessions, court appearances, and maintaining sobriety—are recognized with incentives like praise, reduced court appearances, and small rewards such as gift cards.21 Conversely, non-compliance, such as failing a drug test or missing court, results in sanctions ranging from community service and fines to jail time or re-arrest.22
4. Judicial Interaction The judge plays a pivotal role in the VTC model, maintaining regular interaction with each veteran throughout the program.23 This ongoing supervision fosters accountability and shows veterans that someone in authority genuinely cares about their progress.24 During a recent visit to a VTC, I observed a judge employing a compassionate yet firm approach with each participant. The judge opened every case by asking about the veteran’s family or interests. For one veteran, he lightheartedly inquired about how he was coping with the Georgia Bulldogs’ first college football loss of the season. These personal connections build trust and encourage veterans to stay engaged in the program.