By Fall 2017 M-VETS Student-Advisor Amy Hilton

To be clear, I am not a veteran, nor have I ever served in the United States Military. I am a female, a civilian, and a close friend of many veterans and active-duty members of each of the branches of the U.S. Military.  I did not grow up in a family where the Military loomed a large presence, but rather, only heard my grandfather speak of his service in the Korean War on a handful of occasions.  Usually these stories were relayed in the dusty and tool-ridden workroom in one of his large barns on his cattle farm.  I worked as his “farm hand” during the summers growing up, and, on those long summer days, he talked with me about everything from politics, to how to properly and evenly distribute molasses on homemade biscuits, and, most importantly, how to maintain farm equipment so that it would last for a long time.  I learned much from him, and would not trade that time for anything in the world.

My grandfather was the head of the mechanical engineering department for a heavy industrial machinery company, and was a truly brilliant engineer. He was also an extremely hard worker, and his service in the Korean War reflected those two strengths.  During the War, he was drafted into the U.S. Army, and was stationed at Fort Belvoir in Virginia.  As he described to me, he, and a handful of other engineers from across the U.S., were assigned the task of training tank repairmen on how to maintain and repair the tanks the U.S. Army used in its ground offensives.  He told me he was selected for this task after testing among the top in the country for mechanical engineering on an Army-administered skills test.  Needless to say, he had to adjust his performance expectations for his 14-year old granddaughter who repeatedly got the 1970’s model Cub Cadet lawn mower stuck in ditches and forgot to grease the blade before putting it away for the evening.

Thus, when I began working for the Department of Defense in 2012, I had very little familiarity with the U.S. Military, service member and veteran culture, and the common issues that veterans face after leaving active duty. However, after working in a joint command for the past 5 years, I have become somewhat familiar with the challenges those leaving active duty face.  Many colleagues have described these difficulties on numerous occasions, including knowing what sorts of jobs they are interested in and/or qualified for, how to begin or further their education, and how to manage their finances.

In the fall of 2014, a friend who is now in the Air Force Reserves introduced me to Team Red, White & Blue, or, “Team RWB”, as it is more commonly known. I quickly learned that this group supports veterans and active duty service members by assisting their transition back into the civilian world through physical fitness and social activities[1].  I participated in a few races with Team RWB members, and was extremely impressed by how positive, encouraging, and welcoming everyone was.  I really appreciated how they were constantly organizing and publicizing all sorts of group runs, bike rides, yoga classes, trail hikes, service opportunities, and group dinners so that, wherever you are in the greater D.C./VA/MD area, you can participate in fun and healthy activities.  I joined Team RWB a few months later, and have participated in group activities as frequently as my busy schedule allows.  Through my participation in Team RWB events, I have made close friends who are more like family to me, and I have heard numerous veterans and active duty service members articulate how much they depend on Team RWB to provide a social circle of supportive and active friends who help them stay connected to healthy people and behaviors.  Because I have been so impressed by Team RWB’s steady stream of diverse activities, and the ways I have seen the people and events benefit the lives of Team members and my own life, I have consistently recommended Team RWB to coworkers, new acquaintances, and especially active duty service members and their spouses who are new to the area and are looking to get involved in a healthy and supportive social group.

Over the past 5 years, through conversations with friends, Team RWB members, and through my work at the George Mason University Law School Veterans and Service Members Clinic, I have become familiar with some of the more common issues facing veterans and service members: job security/placement after leaving the military, financial management, furthering or beginning their education, accessing medical treatment, staying physically active while dealing with service-related injuries, accessing  veterans’ social services and benefits, and  staying connected with the military community where they feel a part of a shared culture and experiences.  I have heard Team RWB members discuss many of these things among themselves over dinners, while participating in a relay race, and/or at a picnic or bridal shower.

Recently, I began to wonder if Team RWB is truly making a difference in veterans’ and service members’ lives long-term, and whether it is connected to any larger organizations that assist veterans. I questioned whether all of the physical fitness activities and group meals they organize actually help veterans stay positive, create strong social networks, and decrease the tendency toward depression and suicidal thoughts that are so prevalent among veterans.  I hoped that the group where I have felt so supported and included was making a lasting and substantive difference in the lives of veterans.

After doing a little research, I found that I was not the only one asking those questions. The Institute for Veterans and Military Families[2] at Syracuse University conducted a case study on Team RWB to examine whether this organization was successful in its efforts to “enrich veteran’s lives through physical and social activity”[3].  The study culminated in the report “Enriching Veterans’ Lives Through An Evidence Based Approach: A Case Illustration of Team Red, White & Blue”.[4]  Below, I will highlight some of the report’s key points, which illustrate how Team RWB is positively impacting the lives of its military and civilian members:

• Because the “transition from active military service to civilian life”[5] is a major change in a veteran’s professional and personal worlds, Team RWB works to smooth this transition by helping to create social structures and supporting relationships “through physical and social activity”.[6]
• “Team RWB also partners with outside organizations in events and annual races, like the Old Glory Relay in which thousands of veterans, family members, and community supporters carry one American flag on an Olympic torch-style relay across America.”[7]
• “Team RWB considers civilian membership within each community to be of critical importance for reintegrating veterans back into society and providing them with a support network.”[8]
• “Team RWB’s surveys have captured the impact of participation on team members’ sense of belonging (2015 data) and social support (2014 data).”[9] The data shows that “veterans build authentic relationships through participating in Team RWB.”[10] “Half of RWB veterans report making lasting, positive relationships, which increases to more than three out of four veterans (86%) for those who are frequently to very actively involved with the Team.”[11] “Even veterans who describe themselves as inactive or rarely active, experience personal relationship growth.”[12]
• “Veterans also report increased social support since joining the team through access to information (72%), emotional support (57%), and resources (64%).”[13] “Veterans say that, as a Team RWB member, they have supported other veterans, even those not on the team (52%), and provided personal advice (37%) and career advice (25%) to their teammates, including helping them to find jobs (11%).”[14] “Interestingly, those who are frequently to very active are twice as likely to help their teammates in this way.”[15]
• “Veterans report that participating in Team RWB is reducing the civilian-military divide, (the gap in knowledge and understanding of service members’ skills, experiences, and values between civilians who have never served in the military and active duty military members and veterans).”[16] “Veterans report that being part of Team RWB has given them an opportunity to share their strengths (54%) and challenges (47%) as a veteran with civilians, feel more connected to civilians (32%), and have more trust in civilians (25%).”[17]
• “The value of life enriched by participating as an RWB team member can translate into profound spillover effects into other areas of life.”[18] “The positive interdependence between different areas of life has been noted in which satisfaction in one area of life has positive effects in other areas, such as life satisfaction and perceived quality of life.”[19] “In the 2015 impact survey, veterans said they felt that being part of Team RWB helped them feel more personally fulfilled (42%) and improved their mood (42%), which resulted in them being a better family member.”[20] “They also reported improved relationships with family and friends (36%), increased work satisfaction (20%) (a strong positive predictor of employee retention), increased productivity (21%), engagement (21%), and reduced stress (24%).”[21] “Team members were able to build a better network of contacts (43%), with a small but meaningful percentage finding a job (5%), earning a promotion (5%), and/or salary increase (6%) as a result of participating on the Team.”[22]

Conclusion

 I was particularly pleased to read the statistics (from the 2015 Team RWB Impact Survey) that, “being part of Team RWB increases veterans’ sense of purpose[23] and has helped veterans feel greater life satisfaction.”[24]  “Veterans involved with Team RWB find more purpose in life (45%), create more meaning (45%), and have a stronger sense of direction (41%).[25]  It is very encouraging to know that Team RWB is making such a positive impact on veterans’ lives.  I appreciate having the opportunity to participate (in a very small way) in an organization that is substantively assisting veterans’ transition back into civilian life and strengthening their personal, professional, and social lives.  These men and women have sacrificed so many personal comforts and conveniences to serve the U.S. Government’s military and political agendas, and I feel that we owe our fellow Americans a debt of gratitude.  I am grateful that Team RWB provides the forum for me to run alongside them in a road race, cheer them on as they carry the flag in the Old Glory Relay, and talk with them over dinner about different professional networking or health services that are available to veterans.  In short, I am thankful that team RWB facilitates friendships and activities that have positive impacts on veterans’ lives.

I was thrilled to find the Institute for Veterans and Military Families report on Team RWB. This report substantiated my positive personal experiences as a civilian member of Team RWB, and revealed that these are not unique experiences, and rather, are in line with Team RWB’s overall mission to provide an inclusive, supportive, and healthy team environment where veterans, service members, and civilians can come together and support one another.  I look forward to seeing future Team RWB annual reports, and hope that they reflect wider and deeper benefits to our veterans, active duty service members, and civilians.

[1] https://www.teamrwb.org/our-approach/mission.

[2] https://ivmf.syracuse.edu/. [Accessed 28 Nov. 2017].

[3] “Enriching Veterans’ Lives Through An Evidence Based Approach: A Case Illustration of Team Red, White & Blue”. (2016). [online] Available at: https://ivmf.syracuse.edu/article/enriching-veterans-lives-through-an-evidence-based-approach-executive-summary/. [Accessed 28 Nov. 2017]. [hereinafter: Case Illustration].

[4] Case Illustration.

[5] Case Illustration at 6.

[6] Id.

[7] Id., at 9.

[8] Id.

[9] Id., at 12.

[10] Id.

[11] Id.

[12] Id.

[13] Id., citing (2014 Impact Survey.

[14] Case Illustration at 12.

[15] Id.

[16] Id., citing “The political science field has a well-established civil-military relations literature that, in essence, describes the civil-military “gap” in terms of attitudes of alienation felt between the military and civil society.” See the journal Armed Forces and Society or key texts such as Feaver & Kohn (2001), Huntington (1957), and Janowitz (1960).

[17] Case Illustration at 18.

[18] Id.

[19] Id., citing Greenhaus & Powell, 2006, p. 73.

[20] Case Illustration at 18.

[21] Id.

[22] Id.

[23] Case Illustration at 14; defined as having more “meaning and direction in life” (Ryff, 1989).

[24] Case Illustration at 14; defined as “a cognitive judgment process of an individual’s quality of life according to his or her own criteria” (Diener et al., 1985; Shin & Johnson, 1978).

[25] Case Illustration at 14.

 

 

 

 

 

By Fall 2017 M-VETS Student-Advisor

In what was one of his most controversial actions as president thus far, on July 26, 2017 President Donald Trump issued a series of tweets addressing transgender policy in the U.S. Military.[1]  The tweets stated, “[a]fter consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow…Transgender individuals to serve in any capacity in the U.S. Military.  Our military must be focused on decisive and overwhelming…victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.  Thank you.”[2]  An official memorandum followed on August 25, 2017, which helped explain the timeline of the policy implementation, indicating that the new policy would begin to take effect on January 1, 2018.[3]  In many ways, this potential policy-change from President Trump is in keeping with the trend of constantly evolving military policy on this important issue over the last decade and discussion surrounding the constitutionality of such a change has been swirling.

In 2011, President Obama repealed “Don’t Ask, Don’t Tell,” allowing lesbian, gay, and bisexual service members to speak honestly about their sexual orientation without fearing repercussions for their military careers.[4]  The repeal did not, however, change policy regarding the right of transgender individuals to serve in the military.[5]  In fact, the Department of Defense guidelines at that time “described transgender people as sexual deviants.”[6]  Years later though, the end of Obama’s administration brought significant changes for the rights of transgender individuals, wanting to or already, currently serving in the military.[7]  In 2016, Defense Secretary Ashton B. Carter announced new Department of Defense policies that both permitted transgender individuals to serve openly, without fear of discharge or separation, and detailed the process “by which a serving transgender Service member may transition gender,” during his or her time in service.[8]  Additionally, the policy stated that, beginning in July 2017 for the first time in history, “the military Services will begin accessing transgender applicants who meet all standards—holding them to the same physical and mental fitness standards as everyone else who wants to join the military.”[9]  This change in particular, was extremely significant, since an individual that had undergone sex reassignment surgery and/or hormone therapy had never previously been considered for acceptance into the military.[10]  These changes were largely based on a research study commissioned by Mr. Carter, a few months earlier, which indicated that, were the military to fund medical transition surgeries, rates of substance abuse and suicide would decrease.[11]  Funding of transitional procedures would cost somewhere from $2.4 to $4 million annually, totaling 0.13% of spending on military healthcare.[12]

Since President Trump’s announcement on the issue this summer, debate surrounding the issue has sparked a seemingly endless onslaught of constitutional, strategic, and moral questions.  Those opposed to President Trump’s new policy argue that it violates the Due Process clause,[13] marginalizes the transgender community, and is unsupported by any defensible rationale.[14]  These arguments were upheld in the recent decision in the D.C. District Court, in which Judge Colleen Kollar-Kotelly issued a preliminary injunction blocking aspects of President Trump’s new policy.[15]  The basis for the injunction simply stated that the policy “does not appear to be supported by any facts.”[16]  It did not address whether or not the military should be responsible for the costs of sex-reassignment surgery, but blocked the aspects the policy concerning enlistment and retention of transgender military members.[17]   In response to the injunction, Carl Tobias, a professor at the University of Richmond School of Law, predicted that “the Trump administration [will] likely have to go all the way to the Supreme Court to have any chance of getting the preliminary injunction nullified.”[18]

This prediction is insightful, particularly since the transgender issue implicates many apparently conflicting constitutional protections.[19]  Courts have traditionally held that many constitutional protections simply do not apply to the military in the same way they apply to the general public, and the analysis for determining whether a military policy is constitutional is necessarily different than for another publically or privately funded policy.[20]  For example, in Katcoff v. Marsh, the court refused to analyze the question of whether the military chaplaincy was constitutional “in a sterile vacuum.”[21]  Rather, the court made clear that because both the Establishment Clause and the chaplaincy must be considered within a historical context from a purposive framework, the current test that was most often used to determine whether an Establishment clause violation exists was not appropriate.[22]  Additionally, the court reiterated Congress’ War Power, stating that when a matter provided for by Congress in the exercise of its war power and implemented by the Army appears reasonably relevant and necessary to furtherance of our national defense it should be treated as presumptively valid and any doubt as to its constitutionality should be resolved as a matter of judicial comity in favor of deference to the military’s exercise of its discretion.[23]  Therefore, when Congress implements a policy “necessary to furtherance of our national defense,” a constitutional inquiry must begin with a presumption in favor of the military, due to the “constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end” which is “broad and sweeping.”[24] This deference is often referred to as the “doctrine of nonreviewability,” but it does not function as strongly in issues involving due process as it does in other areas of military policy creation.[25] Ultimately, therefore an analysis of the constitutional legitimacy of denying transgender individuals an opportunity to serve in the military must take into account the context of the Due Process clause and the presumption in favor of the military, in keeping with the extensive war powers permitted. [26]

While the Supreme Court has not yet ruled on the issue of whether sexual identity is a protected class under Title VII or the Due Process Clause, several circuit courts and the Equal Employment Opportunity Commission have affirmatively held that discrimination against a person based on transgender status constitutes discrimination “because of sex” under Title VII.[27] If the Supreme Court affirms this ruling in the future, and translates it to Due Process precedent, then President Trump’s policy would likely be reviewed according to intermediate scrutiny standard,[28] requiring the government to prove that the differential treatment “furthers an important government interest in a way that is substantially related to that interest.”[29] And yet, Congress and military leaders are permitted to deny equal protection in the name of “military necessity” all the time, due to the expansive war powers, which would make such a Supreme Court case extremely interesting.[30] For example, the military disqualifies individuals from service for an extensive list of medical reasons, including gluten allergies.[31] Of course it’s impossible to draw a direct comparison between transgender individuals and those with gluten allergies, but the comparison highlights the military’s ability to discriminate in ways that other employers would never be permitted to, for the sake of good order and discipline.

I have witnessed firsthand the tensions that exist between a military commander’s need to enforce physical appearance standards for certain individuals, according to gender, and the individual’s mental health needs to stray from those standards prior to be fully transitioned to the gender that he or she identifies with, since oftentimes in military regulations an individual has to reach a certain point in hormonal therapy before they are officially considered a different gender. Ultimately, all these tensions point to what may be a major Supreme Court case in the near future, in which the Court will hopefully wrestle with these tensions between the Due Process clause and the war powers.[32]

[1] Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 8:55 a.m., 9:04 a.m., 9:08 a.m.), https://twitter.com/realDonaldTrump.

[2] Id.

[3] Military Service by Transgender Individuals, Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security (Aug. 25, 2017), https://www.whitehouse.gov/the-press-office/2017/08/25/presidential-memorandum-secretary-defense-and-secretary-homeland.

[4] Kayla Quam, Unfinished Business of Repealing “Don’t Ask, Don’t Tell:” The Military’s Unconstitutional Ban on Transgender Individuals, 2015 Utah L. Rev. 721, 721 (2015).

[5] Id.; see also Jonah E. Bromwich, How U.S. Military Policy on Transgender Personnel Changed Under Obama, N.Y. Times (July 26, 2017), https://www.nytimes.com/2017/07/26/us/politics/trans-military-trump-timeline.html.

[6] Jonah E. Bronwich, supra note 5.

[7] Transgender Service Member Policy Implementation Fact Sheet, U.S. Department of Defense, https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf (last visited Nov. 4, 2017); see also Jonah E. Bronwich, supra note 5.

[8] Id.

[9] Transgender Service Member Policy Implementation Fact Sheet, supra note 7.

[10] This policy was mandated by DoDI 6130.03, which states that a “[h]istory of major abnormalities or defects of the genitalia[,] including but not limited to change of sex” disqualifies a person from entering the military. Department of Defense Instruction No. 6130.03 (Sept. 13, 2011), available at https://community.apan.org/wg/saf-llm/m/documents/184254.

[11] Jonah E. Bronwich, supra note 5.

[12] Sabrina Siqqiqui, Transgender Troops Can Stay in the Military for Now, James Mattis Says, the guardian (Aug. 29, 2017), https://www.theguardian.com/us-news/2017/aug/29/transgender-troops-can-stay-now-james-mattis-trump-ban.

[13] Kayla Quam, supra note 4; see also U.S. Const. amend. V.; Ariane de Vogue, Judge Blocks Enforcement of Trump’s Transgender Military Ban, CNN Supreme Court Reporter (Oct. 30, 2017), http://www.cnn.com/2017/10/30/politics/judge-blocks-trump-transgender-military-ban/index.html.

[14] Brief for Massachusetts, et al. as Amici Curiae Supporting Plaintiffs, Jane Doe v. Donald J. Trump, (2017) (No. 17-cv-1597), available at https://ag.ny.gov/sites/default/files/doe_v_trump_-_state_amicus_brief.pdf.

[15] Justin Jouvenal, Federal Judge in D.C. Blocks Part of Trump’s Transgender Military Ban, The Washington Post (Oct. 30, 2017); see also Ariane de Vogue, supra note 13.

[16] Id.

[17] Id.

[18] Id.

[19] Namely Due Process protections in conflict with Congress’ War Powers.

[20] U.S. Const. amend. V., see also Katcoff v. Marsh, 755 F.2d 223, 236 (2nd Cir., 2008)(holding that the Chaplaincy did not violate the Establishment Clause, because it promotes free exercise of religion and is within Congress’ War Powers).

[21] Katcoff v. Marsh, supra note 18 at 232-33.

[22] Id.

[23] Id. at 234 (citing Rostker v. Goldberg, 453 U.S. 57, 64-68 (1981).

[24] Id.; United States v. O’Brien, 391 U.S. 367, 377 (1968).

[25] Heather S. Ingrum Gipson, “The Fight for the Right to Fight”: Equal Protection & the United States Military, 74 U.M.K.C. L. Rev. 383, 385 (2005-2006).

[26] This is similar to the analysis of the chaplaincy in Katcoff v. Marsh. Katcoff v. Marsh, supra note 18. Of course, however, this would more likely be true if Congress backs President Trump’s policy, since Congress holds greater war powers than the Executive.

[27] 42 U.S.C.A. § 200e-2(a); Roberts v. Clark County School District, 215 F.Supp. 3d 1001, 1014 (D. Nev. 2016).

[28] This was the standard the Eleventh Circuit used in the analysis for Glenn v. Brumby. Glenn v. Brumby, 724 F.Supp.2d 1284,1997 (N.D.Ga. 2010).

[29] David S. Kemp, Sex Discrimination Claims Under Title VII and the Equal Protection Clause: The Eleventh Circuit Bridges the Gap, Verdict: Legal Analysis and Commentary from Justia (Mar. 19, 2012), https://verdict.justia.com/2012/03/19/sex-discrimination-claims-under-title-vii-and-the-equal-protection-clause.

[30] Heather S. Ingrum Gipson, supra note 23.

[31] Rod Powers, Military Medical Standards for Enlistment & Commission, US Military Careers (Sept. 8, 2016), https://www.thebalance.com/military-medical-standards-for-enlistment-and-commission-3353967; Patricia Kime, Medical Mix-Up Sidelines Army Sergeant’s Career, Military Times (Jan. 14, 2016), https://www.militarytimes.com/2016/01/14/medical-mix-up-sidelines-army-sergeant-s-career/.

[32] As mentioned previously, however, such a case would only likely be viable if Congress and his senior military advisors back President Trump’s policy, since Congress holds more war powers than the Executive.

By Fall 2017 M-VETS Student-Advisor Emma Devaney

Signing up for military service requires making some personal sacrifices. Sacrifices that result in injury, disability or disease have been addressed by our government since the country’s founding.  Since 1930 the Veterans Administration (“VA”) has been tasked with the responsibility of providing disability compensation and medical services to approved Veterans.  It is widely agreed that the country has a responsibility to assist disabled Veterans injured in service to their country.  However, the importance of VA compensation can be further appreciated when reminded that Veterans are not able to “sue” the United States in a traditional sense.  Most often, their only road to recovery for an injury or disability is through the VA.  This makes it extraordinarily important to have a VA compensation structure that evolves with the needs of our Veterans, and our medical understanding.

Tort suits against the government are traditionally barred by sovereign immunity. Sovereign immunity is a concept derived through common law from England, based on the concept that the King cannot be sued because the King can do no wrong.[1]  However, the Federal Tort Claims Act (“FTCA”) waives this immunity under certain circumstances, stating that the “United States shall be liable, respecting…tort claims, in the same manner and to the same extent as a private individual under like circumstances.”[2]

Some Veterans sought to recover against the government in civil suits, arguing that the FTCA permitted a cause of action. However, the Supreme Court of the United States precluded a claim under the FTCA for negligence in a 1950 decision.[3]  In Feres v. United States, the United States Supreme Court held that FTCA did not extend to military personnel who sustained injury incident to service.[4] Feres consolidated three cases, involving negligence actions brought by active duty personnel, which caused death or injury by other military personnel.[5]  The Court reasoned that the relationship between the government and a member of the military had no equivalent in the private sector, where recovery would be allowed.[6]  The opinion discussed how the FTCA should be interpreted to be read in harmony with the statutory scheme.[7]  Among other rationale, the Court reasoned that the military was “distinctly federal” and the FTCA did not intend to allow local law to dictate recovery in applicable cases.[8]  In Addition, federal statutes already provided for remedies through a comprehensive statutory regime, and therefore, the legislature did not intend to permit additional recover through the FTCA to military personnel.[9]

In Lombard v. United States, the D.C. Circuit Court applied the Feres Doctrine and denied an Army Veteran recovery for injuries sustained by him and his family while he worked on the Manhattan Project.[10]  The soldier alleged that his exposure to the radiation, and the failure of the government to warn him about the dangers, resulted in physical and genetic damage.[11]  This damage also affected his children, who were born after his exposure.[12]  The court dismissed all claims due to lack of jurisdiction.[13]  The court reasoned that it was bound by Feres even in regard to the Lombard children’s claims.[14]  The contemporary statutory scheme did not provide for the children to recover, leaving them without remedy.[15]  Despite this the court denied the children’s claims along with Lombard’s and called for additional legislative action in the opinion.  The courts have thereby established that recovery by military servicemembers for injury caused by exposure to radiation, is for the legislature to decide and not an issue for the courts to address.

The legislature has responded with a comprehensive statutory scheme, outlining the requirements a Veteran must meet before obtaining VA compensation. This requires constant legislative attention as the needs of our Veterans and the injuries they suffer continues to evolve.

Exposures to radiation in the 1950s and 60s and exposure to Agent Orange in Vietnam spurred slow but certain evolution in the VA approach to evaluating claims. Although many of these Veterans were denied compensation, their plight eventually spurred change in VA compensation to account for injuries related to exposure.  For example, the legislature created a list of “presumptive diseases” which make it easier for an effected Veteran to receive VA compensation by making his or her burden of proof easier.  Room for evolution in scientific and medical understanding was eventually built into the statutory structure by providing for medical research and additions to the list of presumptive diseases without further Congressional action required.

Legislative action is only achieved through political pressure applied by individual citizens and Veteran interest groups. Although far from perfect, political pressure has led to changes which enable VA policy to react more quickly to evolving medical understandings.  Further legislative attention will only lead to better service for our injured Veterans.

[1] Feres v. United States, 340 U.S. 135, 139 (1950).

[2] 28 U.S.C. § 2674

[3] Feres v. United States, 340 U.S. 135 (1950).

[4] Id.

[5] Id. at 136.

[6] Id. at 143-144.

[7] Id. at 139.

[8] Id. at 142-144.

[9] Id. at 139.

[10] Lombard v. United States, 690 F.2d 215 (D.C. Cir. 1982).

[11] Id. at 216-217.

[12] Id. at 217.

[13] Id. 227.

[14] Id.

[15] Id.

 

By Fall 2017 M-VETS Student-Advisor Bonnie Kelly

Seventy percent of American adults are overweight or obese.[1]  Within the military about 7.8% of personnel are now considered overweight up from 1.6% in 2001.[2]  Being overweight is unhealthy for anyone, but it causes specific problems for service members, including the possibility of administrative separation for weight control failure.  There may be a number of reasons why military personnel are becoming overweight, just like reasons among the civilian population vary.  However, service members and veterans may be more likely to face an additional cause of weight gain than civilians: PTSD.

Recent studies show a link between PTSD and weight gain. Because more than half of Iraq and Afghanistan veterans enrolled in VA healthcare have received mental health diagnoses, with PTSD being the most common,[3] the link is extremely important to investigate. The military has recognized this link as evidenced by the Millennium Cohort Study, which began in 2001 and involves more than 77,000 military service members representing all branches of service.  The goal of the study is to “follow the participants through and beyond their service, for up to 21 years” to evaluate the longitudinal sequence of PTSD, new onset binge disordered eating, and subsequent weight gain.”[4]  Thus far the study has shown “that PTSD was both directly and indirectly (through the use of compensatory behaviors) associated with weight change in a nationally representative sample of male and female service members.”[5]  PTSD causes a chronic stress reaction in response to trauma and is a condition identified as a possible risk factor for obesity.

For women, the link between PTSD and weight gain is especially troubling. In the civilian population, one in nine women will experience PTSD in their life, about twice the rate of men.[6] Several studies have shown this link for women, once more confirming PTSD as more than a mental health issue.  A longitudinal study of female nurses begun in 1989 with follow up through 2005 showed that even after controlling for depression, also a factor in weight gain, PTSD symptoms were associated with faster weight gain and increased risk of obesity in women.[7]  Normal-weight women who developed PTSD during the study had a 36% increased risk of becoming overweight or obese compared to women who experienced trauma but had no PTSD symptoms.[8]  For women who developed PTSD during the study, the study pinpointed when Body Mass Index (BMI)[9] trajectories changed, and this change corresponded with the trauma event.[10]

The way in which PTSD causes weight gain isn’t fully understood; however, scientists point to the over-production of stress hormones as a potential factor. Cortisol, known as the stress hormone, is released in higher amounts during periods of physical or psychological stress.[11]  “Cortisol stimulates fat and carbohydrate metabolism for fast energy, and stimulates insulin release and maintenance of blood sugar levels.  The end result of these actions can be an increase in appetite and can cause cravings for sweet, high-fat, and salty foods.”[12]

So, what does this mean for service members? “High rates of excessive weight and body fat have implications for national security if our Armed Forces are unable to recruit and maintain fitness throughout military service.  In addition, the Department of Defense, as the largest public healthcare provider in the United States, must address challenges that obesity poses to the military healthcare system, which not only provides care to service members but also to beneficiaries and retirees.”[13]  The rate of obesity has implications for long-term healthcare for members but also for healthcare costs.  Individuals with obesity are significantly more likely to have hypertension, diabetes, and sleep apnea than individuals at normal weight.[14]

These health issues also mean it is vitally important to correctly diagnose and treat PTSD, an underlying cause of weight gain. For service members and veterans who have symptoms of PTSD it is important to seek help.  While earlier treatment is better, it is never too late to receive PTSD treatment.  Studies now show that treatment can be imperative for both mental and physical health.  Talk to your family physician, a therapist or local VA facility. For clinicians working with service members and veterans diagnosed with PTSD this requires “integrated efforts from primary care and mental health to treat underlying mental health causes and assist with engagement in weight loss programs.”[15]

Even though a majority of the population is now obese or overweight, there remains a stigma surrounding weight gain, often attributed to lifestyle or laziness. For service members or veterans who struggle to maintain a healthy weight, it is important to know if PTSD may be a contributor so that weight can be managed more effectively and prevent other health conditions related to obesity.  There is no stigma to having suffered a trauma.

[1] Andrew Tilghman, The U.S. military has a huge problem with obesity and it’s only getting worse, The Military Times, (Sept. 11, 2016), https://www.militarytimes.com/news/your-military/2016/09/11/the-u-s-military-has-a-huge-problem-with-obesity-and-it-s-only-getting-worse/.

[2] Id.

[3] Shira Maguen, Erin Madden, Beth Cohen, et al., The Relationship between Body Mass Index and Mental Health Among Iraq and Afghanistan Veterans, J. Gen. Intern. Med. 28 (Suppl 2), 563 (2013) available at https://doi.org/10.1007/s11606-013-2374-8.

[4] KS Mitchell, B. Porter, EJ Boyko, et al., Longitudinal Associations Among Posttraumatic Stress Disorder, Disordered Eating, and Weight Gain in Military Men and Women, 184 Am. J. Epidemiol. 33 (Jul. 1, 2016).

[5] Id.

[6] Women with PTSD Gain Weight More Rapidly than Women Without the Disorder, Columbia University Medical Center Newsroom (Nov. 26, 2013), http://newsroom.cumc.columbia.edu/blog/2013/11/26/women-ptsd-gain-weight-rapidly-women-without-disorder/.

[7] Laura D. Kubansky, PhD, Paula Bordelois, MPH, Hee Jin Jun, et al., The Weight of Traumatic Stress: A Prospective Study of Posttraumatic Stress Disorder Symptoms and Weight Status in Women, 71 JAMA Psychiatry 44, 44 (Jan. 2014).

[8] Women with PTSD, supra note 6.

[9] BMI is defined as a weight-to-height ration, calculated by dividing one’s weight in kilograms by the square of one’s height in meters and used as an indicator of obesity and underweight.

[10] Kubansky supra note 7.

[11] Melissa Conrad Stoppler, MD, Can Stress Make You Fat? (Sept. 29, 2017), http://www.medicinenet.com/can_stress_make_you_fat/views.htm.

[12] Id.

[13] Implications of Trends in Obesity and Overweight for the Department of Defense, Defense Health Board (Nov. 22, 2013) available at ‪https://health.mil/Reference-Center/Reports/2013/11/22/DHB-Implications-of-Trends-in-Obesity-and-Overweight-for-the-DoD-Fit-to-fight-fit-for-life‪.

[14] Kubansky supra note 7.

[15] Maguen supra note 3.

By Summer 2017 M-VETS Student-Advisor

On July 26, 2017, President Trump issued a series of three tweets addressing transgender service in the U.S. Military.  He declared:[1]

The President’s “policy pronouncement” directly contradicts implemented DOD policy still actively listed on DoD’s website here. On July 28, 2015, then Secretary of Defense, Ash Carter, issued a Memorandum entitled, “Transgender Service Members” that allowed for open transgender service and stated:

…no Service member shall be involuntarily separated or denied reenlistment or continuation of active or reserve service on the basis of their gender identity, without the personal approval of the Under Secretary of Defense for personnel and Readiness. This approval authority may not be further delegated.[2]

Following Secretary Carter’s July 2015 Memorandum, DoD Instruction 1300.28 was issued and became effective October 1, 2016. It provides guidance for, among other things, how a service member can transition gender while serving.[3] In addition, the DOD issued “Transgender Service in the U.S. Military, An Implementation Handbook” in 2016.[4] The 72 page Handbook is, “designed to assist our transgender Service members in their gender transition, help commanders with their duties and responsibilities, and help all Service members understand new policies enabling the open service of transgender Service members.”

Article II Section 2 of the U.S. Constitution, states that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” As Commander in Chief, the President’s powers are quite broad. However, whether the President, in his capacity as Commander in Chief, has the ability to change DoD policy via Twitter is an open question.

Common sense would dictate that, without a formal modification to DoD regulations, an announcement via Twitter would not effectuate a policy change. The President of the National Institute for Military Justice, Dru Brenner-Beck suggested that, “a tweet doesn’t really give you policy.”[5] She further indicated that under normal procedure, the President would issue an executive order instructing the Pentagon to amend its personnel policy that wouldn’t begin without extension coordination between DoD and various parts of the military.[6] Following that, Implementation Guidance, or formal directives would then be expected from the Secretary of Defense according to U.S. Army Chief of Staff Gen. Mark Milley.[7]

Because of the unconventional nature of the President’s “policy pronouncement,” its impact on the DODs implemented policy caused massive confusion. However, at this juncture, the Pentagon does not seem inclined to execute policy based on the President’s tweets. On July 27, a day after President Trump announced his transgender position on Twitter, Chairman of the Joint Chiefs of Staff, Gen. Joseph Dunford, Jr., issued a Memorandum to Service Chiefs, Commanders and Senior Enlisted Leaders stating:

I know there are questions about yesterday’s announcement on the transgender policy by the President. There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.[8]

Following the President’s Tweets, a senior military official stated, “I hope our commander in chief understands that we don’t transmit orders via Twitter, and that he can’t, either.”[9] While it is legally ambiguous as to what the President’s tweets can do – he would be wise to heed this advice. Rash statements of policy on intricate issues serve no one’s interest, and the Pentagon should continue to require more than a tweet to begin the formulation of new policy.

[1] Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 8:55 a.m., 9:04 a.m., 9:08, a.m.), https://twitter.com/realDonaldTrump.

[2] https://www.defense.gov/Portals/1/features/2016/0616_policy/memo-transgender-service-directive-28-July-2015.pdf.

[3] https://www.defense.gov/Portals/1/features/2016/0616_policy/DoD-Instruction-1300.28.pdf.

[4] https://www.defense.gov/Portals/1/features/2016/0616_policy/DoDTGHandbook_093016.pdf.

[5] http://www.politico.com/story/2017/07/26/trump-transgender-troops-ban-240998.

[6] Id.

[7] http://dailycaller.com/2017/07/27/we-dont-execute-policy-based-on-a-tweet-pentagon-yet-to-receive-trumps-transgender-ban-order/.

[8] https://uk.reuters.com/article/uk-usa-military-transgender-exclusive-idUKKBN1AC2FB.

[9] https://www.reuters.com/article/us-usa-military-transgender-exclusive-idUSKBN1AC2FN?il=0.

By Spring 2017 M-VETS Student-Advisor Monica Martinez

Native Americans have served our nation valiantly and with distinction in times of peace and war, while also fighting for the right to be an equal part of this very nation. To honor their legacy, Patriot Nations: Native Americans in Our Nation’s Armed Forces, an exhibition that tells the history of American Indian and Alaska Native men and women who have served in the United States military, will be available for viewing until January 18, 2018 at the Smithsonian Institution’s National Museum of the American Indian (NMAI) in Washington, D.C.

NMAI will also be the site of the National Native American Veterans Memorial, a project authorized by Congress in December 2013 with an anticipated dedication date of Veterans Day, November 11, 2020. The memorial will highlight the bravery, contributions, and sacrifices of American Indian, Alaska Native, and Native Hawaiian veterans during their military service. The $15 million memorial project, which will receive no federal funds, tasks NMAI and the National Congress of American Indians (NCAI)—an advocacy organization—with accepting contributions for, and paying the expenses of its establishment. To garner support and community input for the memorial, an advisory committee consisting of Native representatives from various tribes and branches of service will conduct a series of consultations this summer. There have been 30 such consultations to date and several more are planned over the next few months.

Commitment to Military Service

Native Americans comprise a rapidly growing segment of the U.S. military and veteran population. Yet military service has not been without sacrifice. Native Americans have honorably defended the U.S., despite a tragic history of cultural suppression, broken treaties, and confinement to reservations. At home, Native American veterans are some of the most revered members of their communities, recognized on special occasions through ceremonies and dances performed in their honor. Native Americans’ reasons for serving in the military are complex. While some see military service as an extension of their warrior traditions, or believe in a sacred purpose to protect their land, others join simply to fulfill the patriotic sense of duty felt by every American.

The Department of Defense estimates that some 31,000 American Indian and Alaska Native (AIAN) men and women are on active duty. According to the Census Bureau, more than 140,000 veterans self-identify as AIAN. American Indians have the highest per capita commitment to military service than any other ethnic group in the United States.

Overview of Native American Military Service

Native Americans served in the Army in every war in America’s history, as well as during peacetime, and even when unrecognized as American citizens. Additionally, 25 Native Americans have received the nation’s highest award for valor, the Medal of Honor. Below is a selection of highlights as compiled by the Department of Defense of Native American military service through the years.

 Ira Hayes – Iwo Jima Flag Raiser

On Feb. 23, 1945, to signal the end of Japanese control, Ira Hayes and five other’s raised the U. S. flag atop Mount Suribuchi on the island of Iwo Jima. Three of the six men were killed while raising the flag. The heroic act transformed Hayes’ life forever. Hayes was a full-blood Pima Indian from Arizona, and is buried in Arlington Cemetery. The Ballad of Ira Hayes, a popular folk song performed by Johnny Cash, tells his story.

Early Wars (before World War I)

Many tribes were involved in the War of 1812, having fought for both sides as auxiliary troops in the Civil War. The Indian Scouts were established in 1866 and remained active for the remainder of the nineteenth century and the early twentieth century.

 World War I

Roughly 12,000 Native Americans served in the military during World War I. Four Native Americans serving in the 142nd Infantry of the 36th Texas-Oklahoma National Guard Division received the Croix de Guerre medal from France.

World War II

Over 44,000 Native Americans served between 1941 and 1945, (from a population of less than 350,000). Native American military personnel worked as cryptologists, using their Native languages to encode messages so that enemy code-breakers could not decipher them. Alaska Natives were a significant presence on the Alaska Combat Intelligence Detachment. This outfit was the first ashore on each island occupied by Allied forces in the Aleutian Campaign. Women contributed to war efforts through volunteer emergency service (WAVES), Women’s Army Corps, and Army Nurse Corps.

Marine Corps Women Reservists, Camp Lejeune, North Carolina, Oct. 16, 1943. From left, Minnie Spotted Wolf (Blackfoot), Celia Mix (Potawatomi) and Viola Eastman (Chippewa).

Korean War

Approximately 10,000 Native Americans served in the military during this period. Three were awarded the Medal of Honor.

Vietnam War

More than 42,000 Native Americans served in the military in the Vietnam Era, and over 90 percent of those servicemembers were volunteers.

Post-Vietnam Era

Native American servicemembers continued to serve in high numbers after the Vietnam Era—in Grenada, Panama, Somalia, the Gulf War, and in Operation Enduring Freedom (OEF), Operation Iraqi Freedom (OIF), and Operation New Dawn (OND).

Master Sergeant Joshua Wheeler (Cherokee, 1975–2015) was a member of the army’s elite Delta Force and the recipient of 11 Bronze Stars during his military career. Wheeler died on Oct. 22, 2015, while rescuing prisoners from the Islamic State (ISIS) near Hawijah in northern Iraq. He was the first known U.S. military casualty in the fight against ISIS.

Challenges Facing Native American Veterans

Native American communities are committed to creating paths to education, active citizenship, career development, and improved health outcomes for returning servicemembers and veterans in order to ease the transition home, but challenges remain. American Indian and Alaska Native (AIAN) veterans, for example, are less likely to have an advanced degree compared to veterans of other ethnic groups. AIAN populations also have lower personal incomes than veterans of other ethnic groups and, though the unemployment rate for all veterans has risen since the economic downturn, the unemployment rate for those living on tribal lands has been higher. Further, AIAN veterans are more likely to lack health insurance and to have a disability, service-connected or otherwise, than veterans of other ethnic groups. In the area of mental health, increasing evidence shows that Native American veterans have the highest rate of PTSD of any ethnic group. Significant barriers to identifying and treating these conditions include lack of sufficient health literacy and confusion regarding eligibility for veterans services or the types of services available. However, geography poses the greatest challenge to receiving care, since reservations in rural and remote areas are at great distances from medical facilities. For veterans within or near rural communities, it can be also be difficult to receive representation for benefit claims because they cannot reach existing veterans service organizations (VSOs) or may not use them due to cultural barriers.

Federal Benefits for Native American Populations

The U.S. Department of Veterans (VA) affairs works through tribal governments to provide benefits and services to Native American veterans. VA has tried to address the lack of benefits representation in Native communities through a rule change in the Code of Federal Regulations (38 CFR 14.628). The change will allow eligible tribal organizations to become accredited by the VA to provide assistance on benefit claims. Other resources include the VA Veterans Benefit Administration (VBA), which administers a Native American Direct Home Loan (NADL) program with assistance from the Office of Tribal Government Relations (OTGR); and the VA Veterans Health Administration (VHA) Office of Rural Health, which administers telemental health clinics that provide mental health services remotely to rural veterans. Also, a new program through the Tribal HUD-VA Supportive Housing (Tribal HUD-VASH) program will provide rental assistance and supportive services to homeless Native American veterans or those at risk of homelessness. (This list provides only a brief overview of federal benefits available to Native American veterans.)

I. Veterans Service Organizations

 

The VA issued a final rule on January 19, 2017, to amend its regulations concerning recognition of certain national, state, and regional or local organizations for purposes of VA claims representation. Specifically, the rulemaking allows the Secretary to recognize tribal organizations in a similar manner as the Secretary recognizes state organizations. The final rule allows a tribal organization that is established and funded by one or more tribal governments to be recognized for the purpose of providing assistance on VA benefit claims. It also allows an employee of a tribal government to become accredited through a recognized state organization, similar to County Veterans’ Service Officer (CVSO) accreditation. Accredited tribal organizations will provide veterans with better, more culturally competent services through stringent requirements meant to secure long-term, quality representation.

II.  VA Direct Home Loan Program

VA provides direct home loans to eligible Native American veterans to finance the purchase, construction, or improvement of homes on Federal Trust Land, or to refinance a prior NADL to reduce the interest rate. To obtain a NADL, the law requires that the tribal government must have signed a Memorandum of Understanding (MOU) with the Secretary of Veterans Affairs. The MOU spells out the conditions under which the program will operate on its trust lands. The NADL will allow Native American veterans to reintegrate more easily into civilian working life and to secure a brighter future for their families.

III. HUD Supportive Housing Program

Tribal HUD VASH, a new program, is estimated to benefit 500 Native American veterans through the form of housing and supportive services. The program will combine $5.9 million in rental assistance from HUD with case management and clinical services provided by VA. Veterans who are homeless or at risk of homelessness and who are living on or near a reservation or other Indian areas are eligible for assistance. Through this innovative program, HUD hopes to help tribes move one step closer to ending veteran homelessness once and for all.

As the foregoing demonstrates, partnerships between Native American communities and federal government agencies have the potential to enhance the health, social, and economic outcomes not only for the returning Native servicemember, but for his entire family.

Patriot Nations

Just as the NMAI exhibition introduces many museum patrons to the historical sacrifices of Native Americans in the armed forces, the National Memorial will stand as a stunning tribute in the nation’s capital to allow us to reflect on that legacy of service. At the same time, we must continue to recognize and address the challenges inherent in serving Native American veterans. Cultural barriers, lack of information, and geography are a few factors that prevent Native American veterans from receiving excellent service-connected care and benefits. Through continued partnerships with national advocacy organizations like NCAI, and federal government agencies, these and other critical issues can be addressed in a forthright, effective manner and eventually overcome.

 

 

 

 

By Spring 2017 M-VETS Student-Advisor Larry Lohmann

Last month President Trump signed the Veterans Choice Improvement Act, an extension of the Veterans Access, Choice, and Accountability Act of 2014 or Veterans Choice Act. The Act, originally passed and implemented during the Obama administration, requires hospital care and medical services to be furnished to veterans through agreements with specified non-Department of Veterans Affairs (VA) facilities if the veterans do not live close to VA medical facilities.  The president signed the bill to extend the Choice program, which had a sun-setting provision set to expire on Aug. 7, and allow the expenditure of the remaining $950 million in the program.

Under the original Veterans Choice Act Congress made services available to Veterans that had been unable to schedule an appointment at a VA medical facility within the Veterans Health Administration’s (VHA’s) wait-time goals for hospital care or medical services. The original Choice Card program allowed Veterans facing extensive wait times at Veterans Administration facilities or living more than 40 miles from the nearest VA to seek care in the private sector.

Seeking to further extend care for Veterans, Rep. Phil Roe, Chairman of the House Veterans Affairs Committee, stated in February of the bill, “If you feel that you’re not getting the care at the VA hospital, you should have a choice to go where you want to. I want you to have the absolute best health care that can be provided by anybody in the world. You should have that as a veteran.” In that vein, Veterans already participating in the program will not need to re-apply under the new bill the president signed last month and using this program does not impact existing VA health care, or any other VA benefit. Veterans participating in Veterans Choice Program will continue to receive care from providers in their community.

Perhaps the most important change that comes with the new Veterans Choice Act is it directs the VA to cover co-pays and deductibles directly for private care rather than reimbursing veterans for paying up front. Previously, some community providers had to bill the Veterans’ private health insurance and Veterans Choice Programs separately with Veterans paying out of pocket for services. This implementation addresses a major complaint that was voiced by Veterans service organizations, such as the American Legion. In addition to directing the VA to cover co-pays and deductibles, the new Act is supposed to untangle the web of multiple community-care programs and streamline access for veterans across this country.

In the original version of the Veterans Choice Act the VA had a restriction different from other health-care providers regarding the exchange of health information. This law removes these restrictions and ensures that community providers have access to appropriate health information for Veterans, and brings VA in line with other health-care providers and federal standards related to the exchange of health information. The VA is emphasizing that this new change does not create an exception to, or weaken the protections of the Health Insurance Portability and Accountability Act (HIPAA). This implementation should lead to improved quality of care for Veterans, as access to their medical records will be easily available to their local health care providers.

The extension of the Act is the one of the major legislative accomplishments of the Trump administration thus far and is one that has proven to have wide bi-partisan support. The bi-partisan support is evident with VA Secretary Dr. David Shulkin remaining in place as the head of Veterans healthcare administration. Shulkin, the only holdover in the Obama administration in the Trump Cabinet and the only cabinet member to win unanimous confirmation in the Senate, said at the signing ceremony that the Choice extension was a precursor of “the great things that are to come to fulfill the president’s commitments that he made to veterans.”

Shulkin’s comments are important because while this Act is an improvement from the previous version and an extension of it, it is far from a complete solution to all of the VA’s problems. Shulkin is slated to make proposals to Congress this fall to better integrate the VA with the private sector, overhaul the Choice program further, and to give veterans more options for private care. These proposals will be crucial to the future for VA services for many Veterans that use the Veterans Choice Program because the funds for the current program will likely be exhausted by January 2018.

Important Highlights made by the VA

• The law did not change eligibility for the VCP. Please refer to the VCP website for information regarding eligibility here: https://www.va.gov/opa/choiceact/
• The Choice law requires Veterans to provide VA with their private health insurance information in order to use the program. The new law means that Veterans will no longer be responsible for cost- shares/co-pays associated with their private health insurance. It also means community providers will no longer have to bill a Veteran’s private health insurance and the VCP; they will only have to bill the VCP.
• This law does not put any health insurance information at risk. Previously, VA had restrictions different from other health-care providers regarding the exchange of Veterans’ health information. This law removes those restrictions and ensures that community providers have access to appropriate health information for Veterans, and brings VA in line with other health providers and federal standards related to the exchange of health information.
• The law allows VA to use the remaining funds available for the VCP. VA has partnered with Congress to work though remaining legislative needs to build a single, community care program. This law makes meaningful improvements for the VCP, but more needs to be done. The law is a bridge to allow VA time to partner with Congress and all of its stakeholders to create one community care program that is simple to administer, easy to understand and meets the needs of Veterans and their families, community providers and VA staff.

Sources

Public Law No: 113-146, H.R.3230, Veterans Access, Choice, and Accountability Act of 2014 – Title I: Improvement of Access to Care from Non-Department of Veterans Affairs Providers (08/07/2014) available at https://www.congress.gov/bill/113th-congress/house-bill/3230

Public Law No: 115-26, S.544, A bill to amend the Veterans Access, Choice, and Accountability Act of 2014 to modify the termination date for the Veterans Choice Program, and for other purposes. (04/19/2017) available at https://www.congress.gov/bill/113th-congress/house-bill/3230

Steve Brooks, Privatization, Choice Program hot topics during Commander’s Call, February 28, 2017, available at https://www.legion.org/washingtonconference/236354/privatization-choice-program-hot-topics-during-commanders-call

Richard Sisk, Trump Signs Bill to Extend Veterans Choice Program, April 19, 2017, available at http://www.military.com/daily-news/2017/04/19/trump-signs-bill-extend-veterans-choice-program.html

Veterans Choice Program Law changes fact sheet APRIL 19, 2017, Available at https://www.va.gov/opa/choiceact/documents/Choice%20Extension%20Fact%20Sheet%20FINAL%20April%202017_508.pdf

By Spring 2017 M-VETS Student-Advisor Rodger Nayak

The U.S. Department of Veterans Affairs has sought to make it easier for certain veterans stationed at Camp Lejeune, North Carolina, between August 1, 1953, and December 31, 1987, to obtain disability compensation.

The VA awards disability compensation benefits to servicemen and women with injuries that were incurred or aggravated during active military service. A new rule issued by the VA seek to make it easier for veterans with one of eight specified illnesses who were stationed at Camp Lejeune between the 1950s and 1980s to prove that they are entitled to disability benefits.

The new rule was issued because of contamination in the water supply at Camp Lejeune from the 1950s to 1980s. Marines and their families who were stationed at the base were likely exposed to dangerous chemicals such as trichloroethylene, perchloroethylene, vinyl chloride, and benzene. Under the new rule by the VA that became finalized in March, veterans with one of several diseases can obtain disability compensation if they were stationed at Camp Lejeune while the contamination was present in the water supply. The rules establish several diseases as presumptively service-connected for these veterans.

Before the issuance of these rules, the VA had already awarded disability benefits to at least one veteran after being stationed at Camp Lejeune. In March 2010, the VA had awarded benefits to Paul Buckley, who developed bone marrow cancer after serving at Camp Lejeune.

The VA issued its Camp Lejeune final rule on January 13, 2017, with an effective date of March 14, 2017. Veterans must have served at least 30 days on the base during the eligibility period, and have developed one of eight diseases, to fall within the rule’s eligibility criteria. The diseases covered by the rule are kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer.

The issuance of the rules follows action by Congress. In 2012, Congress passed the Camp Lejeune Act, which permits veterans who served at Camp Lejeune and sustained one of fifteen illnesses to obtain health care at a VA facility. Some criticized the proposed VA rule on the grounds that it covers fewer diseases than does the Camp Lejeune Act.  The VA in response said there is insufficient evidence that certain diseases covered by the Camp Lejeune Act would have arisen as a result of exposure at Camp Lejeune.

Organizations have continued to investigate and study the exposure at Camp Lejeune. On May 11, 2017, the Centers for Disease Control indicated it would conduct a cancer incidence study at Camp Lejeune. The study would include 463,922 cohort members and seek to determine if there is an association within this cohort between exposure at Camp Lejeune and specific cancers.

By Spring 2017 M-VETS Student-Advisor Rebecca Eubank

When a servicemember is injured on active duty or diagnosed with a condition that leaves him unable to perform his assigned duties, his case is referred to the Integrated Disability Evaluation System (IDES). While this process can be long and at times confusing, knowing the possible outcomes at each step of the process should inform the servicemember’s decisions. [1].

First things first, is the condition duty related?

When a condition is identified that inhibits a servicemember’s ability to perform his duties, one of the first questions that must be addressed is whether the injury or medical condition was sustained in the line of duty. Typically, conditions diagnosed while the servicemember is on active duty are considered duty related. [6]

When is a condition not incurred in the line of duty?

The easiest answer is that any medical conditions that were identified at the time the servicemember enlisted will not be considered in the line of duty. Also, if a condition was incurred during an unexcused absence or even if the condition was due to misconduct or negligence, then the condition may not be found to be in the line of duty. In some cases, a line of duty investigation may be established to make this determination. [5]

What if a condition that predates military service gets worse while on active duty?

In these cases, the condition was identified before the servicemember enlisted, but it was determined that the condition would not inhibit his ability to perform his duties. However, if active military service permanently aggravated this condition to the point that the servicemember is no longer fit for duty, the condition may be considered in the line of duty. This is not the same as the natural progression of the illness. [5]

What happens after a condition is diagnosed?

When a servicemember has suffered an injury while on active duty or otherwise diagnosed with a serious medical condition, the servicemember’s case will be referred to a Medical Evaluation Board (MEB). Generally, there will be two physicians on the Board. A third physician is required in cases where the servicemember has a mental health condition. The MEB assesses whether the injuries significantly interfere with the servicemember’s ability to perform the physical duties required of all servicemembers.  The MEB’s goal is to determine if the servicemember’s conditions are medically acceptable for continued service. Each branch of the military maintains its own standards of medical acceptability. While documentation of the servicemember’s treatment is supplied by the medical team treating, the servicemember may submit a personal statement about his condition and how it affects his performance. [2]

Outcomes:

The MEB will either determine that the servicemember’s condition is medically acceptable, and the servicemember will be returned to active duty, or determine the condition is medically unacceptable and the case will be referred to a Physical Evaluation Board (PEB).

If the MEB determines a condition/s is medically unacceptable, and the condition is not in the line of duty, then the case may be referred to a Non-Duty Related Physical Evaluation Board.

What is a Non-Duty Related Physical Evaluation Board?

A non-duty related Physical Evaluation Board (NDR-PEB) may be established where a MEB determines that a servicemember has a condition, not in the line of duty, that inhibits the service member’s ability to perform his duties. The only determination that a NDR-PEB makes is a final determination of whether a non-duty related condition is unfitting for continued military service. Unlike its counterpart for duty related conditions, the NDR-PEB does not assign a rating for disability compensation. [7]

Outcomes: The only determination that the NDR-PEB may make is whether the servicemember’s condition renders him unfit for service. The servicemember has several choices at this stage. Regardless of his choice, it is beneficial to seek guidance from the Office of Soldier’s Counsel or another source. The servicemembers options are:

(Option 1) Agree with the PEB’s decision and waive a formal hearing. If the servicemember agrees at this stage, it will be very difficult to argue at a later date that the condition found to be unfitting is actually service connected and that the servicemember should be compensated accordingly.

(Option 2) Disagree with the PEB’s decision but waive a formal hearing. In this case, the servicemember may submit a written appeal.

(Option 3) Disagree with the PEB’s decision and demand a formal hearing with or without a personal appearance. If the servicemember requests a formal PEB, he should consider obtaining legal counsel either from an on base Legal Services officer or from an outside source. The purpose of a formal hearing is to provide the servicemember and his counsel with an opportunity to present new evidence, either medical or non-medical, that was not previously available. The formal hearing also provides the servicemember an opportunity to address the Board directly and make a case for a different disposition of his case.

What is a duty related Physical Evaluation Board?

A duty related Physical Evaluation Board (PEB), simply referred to as a PEB, makes a final determination as to whether a servicemember is fit for duty. The MEB’s findings will be forwarded to the PEB who will issue informal findings. Like the MEB, an informal PEB is made up of several doctors. [2].

Outcomes: The PEB may make one of several decisions:

1. Find that the servicemember is fit for duty and return him to duty.
2. The PEB will assign ratings that the Department of Veterans Affairs has provided concerning the unfitting condition/s. If the unfitting condition/s are above 30%, the Servicemember will either be placed on the Temporarily Disabled Retired List (TDRL) if the unfitting condition/s are not stable or the Permanently Disabled Retirement List (PDRL) if the unfitting condition/s are considered permanent and stable. The PDRL will result in a medical retirement from the military with disability retirement pay. If placed on the TDRL, the condition/s will be monitored for up to 5 years to evaluate whether the servicemember is fit for service.
3. If the unfitting condition/s are rated by the VA at below 30%, the servicemember will be separated from with severance pay. Further, if the condition/s was found not to have been incurred in the line of duty, the Board may recommend separation without any compensation. [3].

Appealing the PEB decision.

After the informal PEB makes a decision, the next steps are in the servicemember’s hands. Regardless of the PEB’s decision, the servicemember has several ways he may respond. It is important to fully understand the consequences of each of these responses.

The servicemember’s options are:

(Option 1) Agree with the informal PEB finding. This means that the servicemember fully agrees with the Boards determination of his fitness and with all unfit ratings. If the servicemember agrees at this stage it will be difficult later to make an argument that the servicemember wants a different outcome.  Except in extenuating circumstances, review Boards have declined to alter the disposition of a PEB’s decision when the servicemember agreed with the outcome.

(Option 2) Disagree and request a formal PEB with or without a hearing. If the servicemember requests a formal PEB, he should consider obtaining legal counsel either from an on base Legal Services officer or from an outside source. The purpose of a formal hearing is to provide the servicemember and his counsel with an opportunity to present new evidence, either medical or non-medical, that was not previously available. The formal hearing also provides the servicemember an opportunity to address the Board directly and make a case for a different disposition of his case.

(Option 3) If medically separated or retired after a formal PEB, the servicemember may appeal further service’s Board for Correction of records. [4].

More information about each of these boards can be found here:

Army: Army Board for Correction of Military Records (ABCMR): http://arba.army.pentagon.mil.

Navy and Marine Corps: Board for the Correction of Naval Records (BCNR): http://www.donhq.navy.mil/bcnr/bcnr.htm

Air Force: Air Force Board for Correction of Military Records (AFBCMR): http://www.afpc.af.mil/afveteraninformation/airforceboardforcorrectionofmilitaryrecords

Sources:

[1] The Integrated Disability Evaluation System, Military Disability Made Easy, http://www.militarydisabilitymadeeasy.com/integrateddisabilityevaluationsystem.html

[2] The Military Medical Evaluation Process, Military One Source, http://www.militaryonesource.mil/health-and-wellness/wounded-warrior?content_id=282472

[3] Wounded, Ill and Injured Compensation and Benefits Handbook, Defense Department, http://warriorcare.dodlive.mil/files/2011/11/Compensation-and-Benefits-Handbook-May-2014.pdf

[4] SECNAV INSTRUCTION 1850.4E, http://www.secnav.navy.mil/mra/CORB/Documents/SECNAV%20INST%201850_4e.pdf

[5] Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations)

[6] Military Medical Policies, Military Law Task Force, http://nlgmltf.org/military-law-library/publications/military-medical-policies/

[7] Army Regulation 635-40, Physical evaluation for Retention, Retirement, or Separation.

[See generally] Physical Disability Evaluation System PDES Q and A, https://www.hrc.army.mil/TAGD/Army%20Physical%20Disability%20Evaluation%20System%20PDES.

[See generally] Navigating the Disability Evaluation System, http://www.realwarriors.net/active/disability/disability.php#_end3

 

By Spring 2017 M-VETS Student-Advisor Anne Kidd

On December 23, 2016, President Obama signed into law the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (“FY17 NDAA”). The NDAA is an annual occurrence and is one-half of the federal budgetary process for the Department of Defense.

Background. At the most fundamental level, executive agencies in the federal government require two laws to operate: (1) an authorization law, which delineates what the government is allowed to do and may also recommend funding required to do those things, and (2) an appropriations law, which permits the release of funding to agencies to actually go and do those things.  If one fiscal year ends without these laws in place, Congress may pass a Continuing Resolution (CR), which allows the government to continue doing what it has been doing at the same level of funding.  As we saw in 1995, 1996, and again in 2013, without an appropriations law or a CR in place, the federal government shuts down.

Why should you care?  “Defense-related” programs authorized by the NDAA include personnel programs that directly impact pay and benefits, including allowances, bonuses, insurance, and healthcare, for all active duty military service members and military retirees.

What do you need to know?  The following is just a sampling of the provisions in the FY17 NDAA:

Military Pay. For those of you who are still in active duty service, the FY17 NDAA authorized an across-the-board pay raise of 2.1% for service members, effective January 1, 2017. However, you should note that the rate for Basic Allowance for Housing (BAH) is funded and regulated separately, so you should check the BAH for your Military Housing Area to see if any changes were enacted for 2017 that will otherwise impact your overall pay.  You can do this at: http://www.defensetravel.dod.mil/site/bahCalc.cfm.

Also: The NDAA directs the DOD to move to a single pay system no later than January 1, 2018, which represents an attempt to treat BAH as compensation rather than an allowance.

TRICARE Reform. The FY17 NDAA permits DOD to establish TRICARE Select, which will be a self-managed, preferred-provider network to allow freedom of choice for eligible beneficiaries. Additionally, fees will increase for TRICARE Prime retirees and family members through increased annual enrollment fees and additional cost sharing fees (e.g., copays).

Healthcare Reform. The FY17 NDAA provides for expansion in access to urgent care in military and private facilities.  Also, the FY17 NDAA requires Military Treatment Facilities to increase primary care services through expanded hours of operation.

Family Leave. Primary caregivers in the military services will be permitted to take 12 weeks of leave following the birth of a child, including up to six weeks of medical convalescent leave and secondary caregivers in the military services may take up to 21 days of leave.  Additionally, the FY17 NDAA permits primary caregivers in the military to take six weeks of leave following adoption of a child and secondary caregivers will be able to take up to 21 days of leave.

UCMJ Reform. The FY17 NDAA authorizes an overhaul of the UCMJ, including significant procedural reforms at all levels of the litigation process from pretrial through appellate hearings, expansion and/or introduction of defined offenses, and revisions to punitive measures.  The goal of procedural changes is to improve transparency in the system.

Recruiting and Retention Incentives. The FY17 NDAA includes new or revised recruiting and retention incentives for certain critical positions in the military.

Civilian Pay. President Obama extended the 2.1% pay raise for military service members discussed above to all civilian employees in the federal government (not only those in the DOD).  Additionally, the Office of Personnel Management adjusted the Cost of Living Adjustment (COLA) for various localities in 2017.  General Schedule (GS) pay tables can be accessed at: https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2017/general-schedule/. Note that these pay tables reflect adjusted COLA, but do not reflect the 2.1% pay raise.

Administrative Leave Restrictions. The FY17 NDAA restricts the amount of time all civilian personnel (not only those in the DOD) may be placed on paid administrative leave.

Sources:

Staff Sgt. Jannelle McRae, Fiscal Year 2017 National Defense Authorization Act Impacts on Airmen (Dec. 28, 2016), available at http://www.militaryspot.com/news/fiscal-year-2017-national-defense-authorization-act-impact-airmen.

Statement by the President on Signing the National Defense Authorization Act for Fiscal Year 2017 (Dec. 25, 2016), available at https://www.whitehouse.gov/the-press-office/2016/12/23/statement-president-signing-national-defense-authorization-act-fiscal (noting the President’s concern with revisions to the Administrative Leave Act).

Letter from the President, Alternative Plan for Locality Pay (Dec. 8, 2016), available at https://www.whitehouse.gov/the-press-office/2016/12/08/letter-president-alternative-plan-locality-pay.

Leo Shane III, Obama signs defense bill that authorizes pay raise, more troops, MilitaryTimes (Dec. 23, 2016), available at http://www.militarytimes.com/articles/ndaa-17-obama-signs.

Committee on Armed Services, NDAA, H.R., https://armedservices.house.gov/hearings-and-legislation/ndaa-national-defense-authorization-act

Conference Report to Accompany S. 2943, National Defense Authorization Act for Fiscal Year 2017, H.R. Rep. 114-840 (Nov. 30, 2016), https://www.gpo.gov/fdsys/pkg/CRPT-114hrpt840/pdf/CRPT-114hrpt840.pdf.