VA issues rule to provide disability benefits for Camp Lejeune veterans

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.

MEBs? PEBs? NDR? Knowing outcomes should inform your decisions

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

 

National Defense Authorization Act for Fiscal Year 2017: An Overview of Provisions That Matter for Military Service Members and Veterans

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.

SECURING INTERNATIONAL VISITATION

By Fall 2016 M-VETS Student-Advisor Scott Schenking

For many divorced active duty service members, veterans working for the federal government or current federal government employees, the reality that they will move overseas for work is ever present. The result of this is often a request to your former spouse for approval for international visitation and cooperation in preparing the child for that travel.  Many of us have heard of or even personally experienced the challenges that occur when a former spouse refuses to allow international visitation.

There are many articles and laws that address the custodial parent’s right to prevent international travel but there are few resources or laws that support the non-custodial travelling parent. For this group of soon to be ex-pats, international and United States law is not in their favor.  Current laws regarding international travel and movement of children are squarely designed to protect children from parental kidnapping.  In this article, I will discuss the current laws and the protections they provide, their impact on the travelling parent and measures that can be taken to increase your chances of gaining international visitation.

I. International and National Laws for the Prevention of Parental Kidnapping.

The International Child Abduction Remedies Act implements the Hague Convention on Parental Kidnapping in the United States. The Supreme Court has ruled that,  “the Convention’s central operating feature is the return remedy.”[1]  United States’ courts have elaborated that ICARA is designed solely to return a child to his or her habitual place of residence without debating any of the underlying reasons for the child custody order. “[A]ny debate on the merits of the question, i.e. of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal [or retention]….”[2]

A parent wrongfully removes or retains a child under the Hague Convention “when he or she removes or retains the child outside of the child’s country of habitual residence” and the removal or retention breaches the custody rights of the non-removing parent under the laws of that country.[3] Furthermore, the non-removing or non-retaining parent must have been exercising those custody rights at the time of removal. [4]

In order to prove a case of parental kidnapping the complaining parent must establish three elements by a preponderance of the evidence. [5]“First, the petitioner must show that the respondent … retained the child somewhere other than the child’s habitual residence.”[6] Second, if petitioner is successful in proving the threshold element, then the “question becomes whether the … retention violated the petitioner’s ‘rights of custody’ under the habitual-residence nation’s laws.”[7] And third, if petitioner has rights of custody under the habitual-residence nation’s laws, then petitioner need only make a final showing that “at the time of … retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the … retention.”[8]

If a court deems that there has been a wrongful removal or retention of a child under the age of sixteen, and the petition was brought within a year of the wrongful removal or retention, the country in which the child is located must “order the return of the child forthwith,” unless the respondent is able to raise an affirmative defense.[9]  A respondent may assert four possible defenses under the Convention: (1) that there is a grave risk that the return of the child would expose him to physical or psychological harm or otherwise place her in an intolerable situation; (2) that the return of the child would not be permitted by fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms; (3) the proceeding commenced more than one year after the removal and the child has become well settled in the new environment; and (4) the petitioner was not actually exercising custody rights at the time of the removal or retention, or had consented to the removal or retention.[10]  Most of these defenses will not apply to cases of international visitation because it is the intention of the parent to return the child.

The Supreme Court has held that a parent’s ne exeat right (the right to prevent a child’s exit from her country) qualifies as right of a custody under the Hague Convention.[11] In Abbott, the father and mother separated and a Chilean court awarded visitation rights to the father.[12] The Court found that while visitation rights or “rights of access” alone did not amount to a ne exeat right, where the law of the country of residence explicitly requires a parent to give consent before removing the child, a custodial right exists.[13] Thus, absent an explicit award of custody, the Court consulted the law of the country of residence to determine whether a parent had a ne exeat right.[14] For most cases involving a custodial parent living in the United States and a non-custodial parent living abroad the U.S. parent has a ne exeat right and can prevent the departure of the child.

So what does all of this mean for the parent seeking consistent and uninterrupted visitation abroad? To prevent visitation overseas a parent will likely use the model of the Hague Convention and ICARA as a starting point to demonstrate to the court that a risk of parental kidnapping exists.  Most state courts have developed a risk assessment model for assessing the risk of parental kidnapping under the Hague Convention and these general risk factors are what should be defeated in advance.[15] Some of the risk factors for parental kidnapping include:  past threats to kidnap, new threats to kidnap, an overseas relocation, lack of settlement in the United States, dissatisfaction with the U.S., strong overseas connections and a disdain for the U.S. justice system.[16]

II. Negotiating In Advance.

The easiest and most reliable method of reducing the risk of an interruption to visitation is to fully integrate visitation into a settlement agreement that is incorporated into a final divorce decree and custody order. If you have a cooperative spouse who readily acknowledges your need to move overseas for work then you may be able to integrate specific factors into the settlement agreement.  You will need to be careful as specific statements can become limitations on you and the wording of these factors should be discussed with your attorney.

Consider the following in your settlement agreement:

  1. Both parties acknowledge that international visitation is a norm and should be fully supported by both parties without limitation.
  2. Your spouse should agree to fully support preparation for international travel to include updating passports, transportation to medical exams and any further administrative requirements that your employer or new country may require,
  3. Consider who should pay for portions of this travel. Many settlement agreements place the financial burden of visitation on the non-custodial spouse. This could become incredibly expensive when you consider transportation to and from the airport and all airfares as well as an escort for the child.  Attempt to negotiate a division of airfare and escort fare.  Failing this at least negotiate transportation to and from the airport on the custodial side.
  4. Consider a provision for how to handle emergency situations so that you do not fall outside of your agreements when something happens beyond your control. Remember the Icelandic volcano that disrupted air travel out of Europe for weeks. Ensure your agreement has a means of arriving at reasonable solutions to these problems so that the custodial parent cannot later claim that you were preventing access.
  5. Finally, attempt to normalize you and your former spouses’ views on international travel. Which countries are acceptable? What method will be used to determine when a country is no longer acceptable?  At what age can a child travel alone?  At what age can a child travel with only airline escort?  But remember, each of these details are also a restriction on you as well as on your former spouse and the benefits and risks of each should be discussed with your attorney.

Incorporation of these many details could drastically reduce the likelihood of a custodial spouse preventing or disrupting international visitations. However, it is rare that a former spouse will be so willing to negotiate so many details.  In many cases, no negotiation may occur at all and a court order may not address international visitation.  This leaves the burden on the non-custodial parent to fight for a visitation on a case-by-case basis.  In this situation there are several key points to consider increasing your chances of gaining approval for international visitation.

III. Preparing for Court Arguments.

1. Never prevent parental access or act as if you could. An Arizona court ruled that, although both parents were equally capable of adequately and properly caring for the child, and a relationship with both parents was in the child’s best interest, sole legal and physical custody should be given to the father because, weighing the parents’ respective risks of traveling internationally to deny the other parent’s access to the child, it could more effectively prevent the father, a United States citizen, from taking the child out of the country than the mother, a Mexican citizen who had previously taken the child to Mexico.[17] Preventing parental access could also include being late on return from visitations, preventing communication during visitation, unilaterally extending visitation or cutting visitation off short.[18] The key here is to demonstrate a consistent ability to uphold and operate within the court’s child custody order.[19] The court will weigh having a prior history of international travel with the child demonstrating return of the child within agreed parameters.

2. Research your new country’s participation in the Hague Convention. If your new country is not a signatory to the Hague Convention that will certainly be seen as an increased risk but it is not determinative as many courts review the complete risk assessment.[20][21]However, other countries that are signatories such as Germany have shown some reluctance to return children to the United States. You will want to know this in advance and prepare counter-arguments for the court.

3. Never threaten to keep your children abroad. This could include testimony from your child that you have threatened to retain them in another country.[22] Of course, it can be shown from your own statements[23] or by threatening litigation in another country.[24]

4. Be prepared to respond to your new country’s general threat level. In V.U. v. F.U.U., a Delaware court ruled that a Nigerian father could not take his children for a three-week visit to their paternal and maternal grandparents in Nigeria because the U.S. Department of State had issued a travel warning regarding possible dangers of travel in Nigeria for U.S. citizens and had warned that some areas of the country should be avoided because of the very high risk of kidnapping, robbery, and other armed attacks.[25] In these cases, you may need to consider visitation in a third country that has an acceptable threat level.

5. Be prepared to show that you are well settled in the United States community. This can be done with such evidence as:[26]

a. Solid employment history;

b. Ownership of real estate;

c. Other U.S.-based assets;

d. Acquisition of U.S. citizenship;

e. Other family members in U.S.;

f. Circle of friends;

g. Participation in local organizations; and

h. No prior history of violation of the law.

6. Along with establishing settlement in the United States it would also be useful to establish that any previous connections to a country of origin or the visiting country have been reduced over time, through death of family members, change of employment, etc.[27]

7. Finally, if these measures fail to arrive at cooperation with your former spouse or a favorable court order then consider confidence building measures such as registering a foreign court order or posting a bond. These measures are typically very costly to you because you are paying for foreign attorney’s fees or the interests or loss of the use of your money on a bond. For these reasons they should not be taken lightly but they can be effective. In Charpie v. Charpie, an appeal court in New York held that the father, a Swiss national, could be required to deposit $100,000 in escrow as a condition to taking his children on vacation in Switzerland during contested child custody proceedings.[28]

These considerations can be used to shape your transition abroad so that you are not left with constant litigation over every visitation. If you are planning on moving overseas then find an attorney that has international family law experience and discuss these points with your attorney. While I have pointed to many areas where negotiating specific points could benefit a smooth transition this must carefully be balanced against all of your interests and that is something you will need to work through with a well qualified attorney.

[1] Abbott v. Abbott, 560 U.S. 1, 130 S.Ct. 1983, 1989, 176 L.Ed.2d 789 (2010).

[2] England v. England, 234 F.3d 268, 271 (5th Cir.2000) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996)).

[3] Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343 (5th Cir.2004); Convention, art. 3(a).

[4] Sealed Appellant, 394 F.3d at 343; Convention, art. 3(b).

[5] Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir.2012).

[6] Larbie, 690 F.3d at 307.

[7] Id. (citations omitted).

[8] Id. (quoting Convention art. 3(b)).

[9] Hague Convention art. 12.

[10] Radu v. Toader, 805 F.Supp.2d 1 (2011); See Poliero, 2009 WL 2947193, at *9–10 (citing 42 U.S.C. § 11603(e)(2)(A)-(B)).

[11] See 130 S.Ct. at 1990.

[12] Id. at 1988.

[13] Abbott, 130 S.Ct. at 1999.

[14] Id. at 1985.

[15] Katare v. Katare, 175 Wash. 2d 23, 283 P.3d 546 (2012).

[16] International Family Law Practice §11:6.

[17] Sutton v. Flores, 2010 WL 2006243 (Ariz. Ct. App. Div. 2 2010).

[18] See Sahibzada v. Sahibzada, 294 Ga. 783, 757 S.E.2d 51 (2014) (visitation denied in part because non-custodial father failed to maintain communication and often could not report his location.)

[19] In re Marriage of Hatzievgenakis, 434 N.W.2d 914 (Iowa Ct. App. 1988). “Unreasonable” restrictions on out-of-country visitation by a Greek citizen with his son were not justified where the mother’s fears that her son would not be returned from Greece were not supported by any evidence. “The child is a citizen of two countries and has a right to be introduced and exposed to both. The child has a grandmother, an aunt and uncle and cousins he will not know unless he travels to Greece.”

[20] See Pirayesh v. Pirayesh, 359 S.C. 284, 596 S.E.2d 505 (Ct. App. 2004).

[21] In re Rix, 161 N.H. 544, 20 A.3d 326 (2011).  A visit to India would be permitted even though that country was not a party to the Hague Convention when the taking parent had substantial ties to the United States, had lived here for 20 years and had taken the child to India—and then returned the child from India—on three previous occasions.

[22] Bergstrom v. Bergstrom, 320 N.W.2d 119 (N.D. 1982).

[23] Shady v. Shady, 858 N.E.2d 128 (Ind. Ct. App. 2006).

[24] Charpie v. Charpie, 300 A.D.2d 143, 752 N.Y.S.2d 291 (1st Dep’t 2002).

[25] V.U. v. F.U.U., 2008 WL 2898335 (Del. Fam. Ct. 2008).

[26] International Family Law Practice § 11:11 (2).

[27] International Family Law Practice § 11:11 (4).

[28] Charpie v. Charpie, 300 A.D.2d 143, 752 N.Y.S.2d 291 (1st Dep’t 2002).

Department of Defense Undertakes Records Review for Discharges and Records Related to Updated Policies on Mental Health, Sexual Orientation, Sexual Assault, and Gender Identification

By Spring 2017 M-VETS Student Advisor Anne Kidd

On December 30, 2016, the Department of Defense (“DoD”) announced renewed efforts to reach out to veterans regarding their discharge and military records. This effort follows recent changes in DoD policies on Post Traumatic Stress Disorder (“PTSD”), sexual orientation, sexual assault, and gender identification.

Requests for Discharge Upgrades or Correction of Records. If you are a veteran and you believe that there is an error or injustice in your discharge or military records, DoD encourages you to request relief from your service’s Board for Correction of Military/Naval Records (“BCM/NR”) or Discharge Review Board (“DRB”).

Veterans seeking discharge upgrades:

  • Where the discharge was less than 15 years ago (2001 and after): Complete DD Form 293 and send it to your service’s DRB (the address is identified on the DD Form 293). DD Form 293 can be found at: http://www.dtic.mil/whs/directives/forms/eforms/dd0293.pdf
  • Where the discharge was more than 15 years ago (before 2001): Complete DD Form 149 and send it to your service’s BCM/NR (the address is identified on the DD Form 149). DD Form 149 can be found at:
  • http://www.dtic.mil/whs/directives/forms/eforms/dd0149.pdf

Veterans seeking corrections of records other than discharges:

Key Information to Include in Requests:

  • Explain why the discharge or record was unjust or erroneous
    • E.g., How was the injustice/error connected to (or how did it result from) unjust policies
    • E.g., How a physical or mental health condition (e.g., PTSD) was related to military service
  • Provide support for key facts
    • E.g., Relevant medical diagnosis and related medical records

 

  1. Copies of applicable service records (helpful, but not required)
  2. Description of post-service activity and any appropriate letters or other supporting documentation, where requests are related to or supported by post-service conduct/contributions to society
    • BCM/NRs are authorized to grant relief on the basis of clemency

It is important to remember that the more information and explanation that a veteran can provide, the easier it will be for the applicable DRB or BCM/NR to understand the circumstances of the discharge or record and to process/respond to the request.

Feedback.  DoD also seeks feedback on experiences from veterans and interested organizations as well as recommendation for improving policies and processes.  There are two ways to submit feedback:

  1. Email: osd.pentagon.ousd-p-r.mbx.legal-policy@mail.mil
  2. Mail: Office of Legal Policy, Office of the Under Secretary of Defense (Personnel & Readiness), 4000 Defense Pentagon, Washington, DC 20301-4000

More Information.  For additional information or assistance, you can also reach out to service-specific bodies:

Army—

All inquiries:

Website: http://arba.army.pentagon.mil

Email: army.arbainquiry@mail.mil

Navy/Marine Corps—

BCMR:

Website: http://www.secnavy.navy.mil/mra/bcnr/Pages/home.aspx

Phone: 703-607-6111

Email: BCNR_Application@navy.mil

DRB:

Website: http://www.secnavy.navy.mil/mra/CORB/Pages/NDRB/default.aspx

Phone: 202-685-6600

Email: NDRB@navy.mil

Air Force—

All inquiries:

Website: http://www.afpc.af.mil/board-for-correction-of-military-records

BCMR:

Phone: 240-612-5379

Email: usaf.pentagon.saf-mr.mbx.saf-mrbc@mail.mil

DRB:

Phone: 240-612-0995

Email: usaf.pentagon.saf-mr-mbx.saf-mrbb@mail.mil

Source:

U.S. Department of Defense, Press Release No. NR-459-16, “DoD Announces New Outreach Efforts to Veterans Regarding Discharges and Military Records,” (Dec. 30, 2016), https://www.defense.gov/News/News-Releases/News-Release-View/Article/1039945/dod-announces-new-outreach-efforts-to-veterans-regarding-discharges-and-militar.

U.S. Immigration Law And Deported Veterans

By Fall 2016 M-VETS Student Advisor Jeremy Glenn

Everyone knows U.S. immigration law is a mess. This time the problem hits a new low, and a little too close to home.

An alarming fact of immigration in the United States is that many U.S. military veterans are being deported each year. In June 2016 the ACLU of California reported that at least 84 veterans are in the process of, or already have been, deported from the U.S. despite honorable service in the armed forces.  While naturalization is offered to active duty servicemembers, many do not utilize the benefit due to an assumption that active duty service automatically confers U.S. citizenship.

In 2008 the Pentagon estimated that about 8,000 noncitizens enlist every year, though it is uncertain whether that trend has continued. An estimated 65,000 noncitizens were serving in the military in 2015.  These noncitizens are subjected to deportation for any crime that carries a sentence of one year or more – even misdemeanors – after returning to civilian life.

The current law on the books is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The law expanded the list of crimes for which nonresidents can get deported, which includes misdemeanors, and banned immigration judges from exercising discretion in deportation cases.  It effectively disallowed any consideration of a noncitizen’s military service in a deportation case.

The sad fact is that a veteran who is brought by his parents to America as a small child, enlists in the military and serves honorably, might never be granted U.S. citizenship. So that veteran, who has never known any other home, would be one minor crime away from being separated from his family and country. This scenario is not a myth; for former Army Specialist Hector Barajas, this was a reality.

Barajas enlisted with his green card and served in the 82nd Airborne Division from 1995 to 2001. He was never counseled about obtaining citizenship or the risks of relying on his green card for permanent residency after separation.  Following his honorable discharge, Barajas struggled with post-traumatic stress and substance abuse issues before landing in jail after an incident with police. He eventually pleaded guilty to illegal discharge of a firearm and served two years in jail. Upon his release, Barajas was told that he would be deported – neither his green card nor his military service could prevent it. He was forced to leave behind his daughter and the country he had served and called home for decades.

The Bunker

After his deportation, Barajas met many veterans who had suffered the same plight. His small two-story apartment in Tijuana served as the meeting place for these displaced heroes, and was eventually became dubbed “The Bunker.” The Bunker is home to the non-profit “Deported Veterans House,” which was founded in 2013 to offer legal, moral and psychological support, as well as food and accommodations to deported veterans.

One beneficiary of Barajas’ voluntary services was Marine veteran Daniel Torres. Torres was deported to Tijuana and found himself completely reliant on his fellow veterans at the Bunker. He, too, entered military service thinking that swearing an oath to sacrifice his life for his country earned him citizenship.  Fortunately for Torres there was a crack in the deportation regime: veterans who served overseas during a time of conflict are qualified for citizenship even after separation.  Torres has since returned as a U.S. citizen and currently advocates for his fellow comrades who have not yet been allowed to legally return to the country they call home.

Torres’ story is one-of-a-kind. He is the first veteran of the Bunker to legally re-enter the U.S. Many more are waiting. Unfortunately, not all veterans survive long enough to make that dream a reality.

Veteran Manuel de Jesus Castano was a patient at El Paso Veterans Affairs hospital, undergoing treatment for Lou Gehrig’s disease and lupus, until he was deported in 2011. The reason? A misdemeanor based on charges that were later retracted – but only after he was deported. He was not allowed to re-enter the U.S. for treatment and in 2012 died of a heart attack at the age of 55.  Veteran advocates helped arrange for his burial, with full military honors, at Ft. Bliss National Cemetery in El Paso.

The Castano case introduces a macabre conundrum: the only way some veterans will get back into the country they served after deportation is by way of a casket.  The LA Times called this a “final mercy the U.S. government grants veterans who die after deportation.”

Some of our elected leaders are aware of the issue, and at least one is making headway to change things.

Pending Legislation

On September 21, 2016, Congressman Juan Vargas (CA-51), representing San Diego and Imperial Counties in southern California, introduced a bill package aimed at providing deported veterans the services they deserve.  His proposals include allowing deported veterans “parole status” in order to return to the U.S. to receive VA health care services, and providing naturalization services at military training sites.  Rep. Vargas also wants the Departments of Defense and Homeland Security to coordinate in tracking veterans’ immigration status through an immigrant veteran’s eligibility tracking system. The proposed bills have been referred to committee and are awaiting further action.

Increasing Awareness

The ACLU of California’s report, titled “Discharged, Then Discarded,” chronicles the plights of deported veterans.  It also discusses the background of immigration laws, the naturalization of service members and veterans, and the effects of deportation on veterans and families.  While I cannot discuss the entire contents of the report here, I do recommend it to your reading.  If the U.S. is going give veterans the respect and benefits they deserve, despite their run-ins with the law, the report and its recommendations provide a great place to start.

These deported veterans’ stories are real, and leaders like Barajas and Vargas are doing admirable work to increase awareness for their cause. However, much more needs to be done to adequately support our nation’s heroes.  We can show support on the Deported Veterans House’s Facebook page, or sign-up to pledge our support at the Deported Veterans’ website.  We can encourage the passage of life-saving legislation like that introduced by Rep. Vargas, or Find Your Congressman and tell them to support H.R. 6091, 6092 and 6093 which would help prevent the unnecessary deportation and loss of benefits for veterans who have earned our utmost respect and gratitude.

Whatever the means, veterans need to stand up together with one voice to bring positive change to U.S. immigration law. We have much work to do to live up to our mantra of “leave no one behind.” Preferably, that display of esprit de corps would happen before a deported veteran’s journey back home required a flag-draped casket.

 

The Impact of Executive Order 13730 on Military Justice!

By M-VETS Student Advisor Fall 2016

Over the past year, President Obama has signed two Executive Orders amending the Manual for Courts-Martial (Executive Orders 13730 and 13740). Additionally, on November 29, 2016, the Joint Service Committee announced modifications to the 2017 Manual for Courts-Martial.[1]  While the 2016 amendments and proposed 2017 amendments cover a wide array of military legal matters, one continuing theme addressed throughout all of these changes concern limitations to defense counsel assistance, which adversely affect an accused’s right to a fair trial.

This post examines one particular Executive Order, Order 13730, and the substantial changes it created to the Manual for Courts-Martial. The Order, implemented on May 20, 2016, implemented numerous changes, which adversely affect an accused during court martial proceedings. In addition to a greater emphasis on the accuser’s protections and preference, this Order has now altered the corroboration requirement, the exclusionary rule, witness hearsay statements, and failure to state a claim motion.

Listed below are the changes, which are relevant to Military Defense Counsel and the accused:

Mil. R. Evid. 304(c) was rewritten to clarify that not every element of a confession or admission must be independently proven to be admitted into evidence. This Order further altered the admissibility of an accused’s admission or confession. Under the corroboration requirement, an accused’s statements will be admitted provided independent evidence established the trustworthiness of the admission or confession. This significantly changed the previous corroboration requirement rule, which strictly required independent evidence to corroborate “the essential facts admitted to justify sufficiently an inference of their truth”.[2] “This change brings military practice in line with federal practice”.

The exclusionary rule under Mil. R. Evid. 311(a) was altered through this Order. While the previous rule prevented unlawfully searched and seized evidence from being admitted into trial if Defense Counsel made a timely objective and had an adequate privacy interest[3], this Order added a third requirement of “appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system”. By imposing a third requirement on Defense Counsel, this Order prevents illegally obtained evidence from being automatically excluded from trial.

Also amended to reflect that the exclusionary rule does not apply where an “official acts in objectively reasonable reliance on a statute that was later held to violate the Fourth Amendment”.

Marital privilege now includes same-sex marriages (Mil. R. Evid. 504).

The hearsay rule affecting witnesses (Mil. R. Evid. 801(d)(1)(B)) and exceptions for business and public records (Mil. R. Evid. 803(8)) were also altered as a result of this Order.[4] Whereas previously a witnesses’ out of court prior consistent statements was not considered hearsay if it was consistent with the declarant’s testimony and offered to rebut a fabrication or improper influence charge[5], the new rule added another condition of allowing these statements (i.e. if it “rehabilitates the declarant’s credibility as a witness on another ground”[6]). Additionally, the party opposing the admission of business records must now demonstrate their objection through a lack of trustworthiness (burden shifting from proponent to objector).[7]

Defense Counsel may no longer assert a failure to state a claim argument for the first time during an appeal but must do so prior to the adjournment of a court martial proceeding (R.C.M. 907(b)(2)(E)(2016)). Failure to do so will result in this motion being waived.[8]

There will no longer be a verbatim record of trial where the accused does not have a right to appellate review by the relevant Court of Criminal Appeals (R.C.M. 1103(b)(2)(B)(i)).

More guidance was provided as to the determination of whether to vacate the suspension of a court-martial sentence due to violation of the conditions of the probationer’s suspension (R.C.M. 1109(c)(4)(C)).

There is now a mandatory punitive discharge for attempts to commit certain violations of Articles 120, 120b, and 125 under the UCMJ (Part IV, 4.e., Article 80).

Applied the Supreme Court case law, which imposes limitations on the criminalization of threatening language. (Part IV, 110(c), Article 134)

Victims Counsel will no longer receive a less favorable rating or evaluation due to the “zeal” in which they represent their counsel (R.C.M. 104(b)(1)(B)).

This Order also provided greater rights to the accuser:

Victims must be reasonably protected from the prisoner during 7 day pre-trial confinement (R.C.M. 305(i)(2)(A)(iv)).

Victims must be reasonably protected from the accused during Article 32 preliminary hearings (R.C.M. 405(i)(2)(A)) and court martials (R.C.M. 806(b)(6)).

Victims, in sex-related offenses, will be given the opportunity to voice their preference between a court-marital or civilian prosecution (R.C.M. 306(e)).

Victim will be able to provide their opinion over pretrial agreement (R.C.M. 705(d)(3)). Victim will be provided with more reasonable, accurate, and timely notice of court martial proceedings (R.C.M. 806(b)(2)).

By modifying the Rules for Courts-Martial, the Military Rules of Evidence, and the Punitive Articles, it is apparent that Executive Order 13730 aimed to hinder Defense Counsel’s assistance to the accused. Additionally, the recent amendments to the Federal Rules of Evidence are designed to assist the prosecution in the above referenced cases. As 2017 approaches, it is vital that those in the military stay up to the date on the proposed changes, which may adversely affect them if they are ever accused of a crime.

[1] Manual for Courts-Martial; Proposed Amendments Nov. 29, 2016. https://www.federalregister.gov/documents/2016/11/29/2016-28630/manual-for-courts-martial-proposed-amendments

[2] See Zachary Spilman (2016). 2016 Amendments to the Manual for Courts-Martial. National Institute of Military Justice.  Blog – CAAFLOG.  http://www.caaflog.com/2016/05/26/2016-amendments-to-the-manual-for-courts-martial/ [citing Mil. R. Evid. 304(c)(1) (2015)].

[3] Id.

[4] Both are now consistent with the Federal Rules of Evidence.

[5] Spilman (2016).

[6] Id., See also Mil. R. Evid. 801(d)(1)(B)(ii)(2016).

[7] Mil. R. Evid. 803(8)(B)(2016).

[8] JSC Supplementary material (non-binding) stated that “defective specification [as seen in U.S. v. Humphries 71 M.J. 209 (C.A.A.F. 2012)] does not constitute structural error or warrant automatic dismissal.”

Religious Freedom in the Military as viewed through the Sterling case

Religious Freedom in the Military as viewed through the Sterling case

By M-VETS Student Advisor Lisa Mathews

The oral arguments in front of the United States Court of Appeals for the Armed Services were held on a cool morning in April 2016 in Washington, DC. The room was packed with JAG, media, and members of think tanks, and the public. Unusually, every seat was filled.  About twenty minutes before the arguments began, prominent lawyer and former Solicitor General Paul Clement walked in unceremoniously, though his presence was immediately noticed by onlookers as he made his way to the front of the room and sat down at the lawyer’s table to review his notes. The various conversations around the room were animated as each aspect of the case was being debated vigorously and simultaneously while all were waiting for court to be called to order.  It was clear from the intensity of the room that this was an important case for religious freedom in general and for the military in particular.  If the appellant, Ms. Sterling, was vindicated, it would mean that a servicemember may ignore a direct order when religious rights are at stake.  However, if Ms. Sterling were to lose, the court would seem to be downplaying the importance of religious freedom in the military.

BACKGROUND: MONIFA STERLING

Approximately three years earlier in May 2013, Lance Corporal Monifa Sterling printed three copies of the words “[n]o weapon formed against me shall prosper” and posted them on her shared desk.[1] Ms. Sterling had a challenging history with her job.[2] She had been assigned to Section-6 of the 8th Communications Battalion only five months earlier.[3] She had “ongoing difficulties and a contentious relationship” with many superiors, including her immediate supervisor Staff Sergeant Alexander.[4]  Ms. Sterling felt that people were picking on her.[5]  Her supervisor said that she was not contributing and could not be relied on to perform even simple tasks.[6]

On the day that she posted the words at her desk, Ms. Sterling’s supervisor saw them and ordered her to remove them since the desk was shared with a junior Marine and because her supervisor did not like the tone of the words.[7] The words were pulled from the Bible, though Ms. Sterling did not tell her supervisor they were religious.[8]  Ms. Sterling did not remove the words as ordered, so her supervisor did.[9]  The next day, Ms. Sterling re-posted the words and her supervisor again ordered them removed.[10]

Ms. Sterling had other conflicts with supervisors between this event in May and when she was court-martialed eight months later in January 2014.[11] During her court-martial, Ms. Sterling chose to appear without a lawyer, though she was counseled not to.  In defending her action defying the order to remove the words from her desk, Ms. Sterling again failed to mention the words were of a religious nature, at least initially.  However, days into the court martial, Ms. Sterling raised for the first time the defense that the order to remove the words from her desk violated her religious freedom and the Department of Defense’s (DOD) rule that she may practice her religion as long as it is “within good order [and] discipline.”[12]  She referenced DoDI 1300.17 and the Religious Freedom Restoration Act (RFRA).  DoDI 1300.17 is the DOD’s instruction for accommodation of religion within the military.  RFRA is a law that forbids the government from substantially burdening religious practice unless the action is narrowly construed to accomplish a narrow government interest.[13]  Ms. Sterling explained that printing three copies of the words was in the form of the Christian Trinity.[14]

This defense was unsuccessful in her court-martial, however. The military judge held that her supervisor’s order was lawful and “reasonably necessary to safeguard military interests and good order and discipline because other servicemembers could have seen the signs.”[15] The judge also ruled that the order to remove the signs did not interfere with Ms. Sterling’s religious rights.[16] The ruling was affirmed on appeal where the court found that because of the antagonistic relations Ms. Sterling had with her superiors, the words could have been interpreted as combative.[17] The court then addressed her RFRA claim, finding that it did not protect Ms. Sterling’s behavior.[18]  Ms. Sterling, now represented by Paul Clement, appealed to the Court of Appeals for the Armed Services.

RFRA

RFRA was passed in 1993 by a nearly-unanimous Congress and signed into law by President Clinton.  RFRA’s enactment was a reaction to the Supreme Court case Employment Division v. Smith where the Court ruled that Oregon was permitted to deny unemployment benefits when two counselors at a rehabilitation drug clinic were fired after participating in sacramental peyote use.[19] These two counselors were members of the Native American Church.[20] The Supreme Court found that the law prohibiting drug use did not target religion.  That religion was impacted was simply an “incidental effect” of a “generally applicable” law and therefore permissible.[21]

Congress was outraged and swiftly passed RFRA into law.  The law states that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”[22] The law allows the government to substantially burden religious exercise only if the government’s action is “in furtherance of a compelling government interest” and “is the least restrictive means of furthering that compelling government interest.”[23] The requirement that the action be the least restrictive means to further a compelling government interest is commonly known in the law as “strict scrutiny.” This is the highest form of scrutiny that a court can apply to a government action.

Congress’s use of the term “government” means it expected the law to apply to actions taken by all government entities, which certainly includes the military.  RFRA was not directed toward the military; however, and by referring broadly to the “government,” RFRA’s strict scrutiny rule automatically swept the military into its reach, even if Congress did not consider what impact this would have.  Prior to RFRA, no strict scrutiny rule applied to cases where servicemembers alleged religious freedom violations. In such cases, the military enjoyed broad discretion from courts.

Religion in the Military

How and when religious expression and practice should be allowed in the military has long been a complicated topic. The uniqueness of the situation in which thousands of volunteer Americans (except in rare circumstances of a draft) face the daily rigors of defending a nation in a manner that requires close quarters and absolute discipline adds to the complexity of the problem. While many servicemembers are religious, some are not. The Constitution dictates that the government may not establish a religion – a directive which has been interpreted by the Supreme Court to mean that it must not even go so far as endorse religion in general over non-religion. However, the Constitution also requires protection for citizens to practice religion as they wish. This First Amendment protection is not something servicemembers opt out of when they volunteer to serve. Indeed, one may argue that the emotional and psychological rigors that servicemembers experience while on active duty create a deep need for religion. However, a strong argument can be made that First Amendment protection must be limited at times for the military to function.

While the history of religious jurisprudence for most of the country has been interpreted via a long line of Supreme Court cases, the courts have mostly deferred to military leaders and the Department of Defense to establish policies related to religious practice within the military.[24] Over the years, questions have arisen regarding the true extent to which servicemembers are free to practice their own religion. Some cases have involved allegations of coercion where servicemembers say they were forcefully exposed to religion against their will. Other servicemembers have claimed that the military unnecessarily limited their religious practice.[25]

One case that demonstrates the courts’ reluctance to rule on religious rights is Parker v. Levy. In this case, a doctor who was ordered to train Special Forces felt his assignment would violate his medical ethics, so he chose to disobey his orders.[26] He was court-martialed and sentenced to three years of hard labor.  Justice Rehnquist stated in the Court’s opinion that “the different character of the…military mission requires a different application of [First Amendment] protection.” As one researcher explained, “in terms of free speech broadly understood, the Court has taken the stance that its hands are tied in such a way that even contemplating the interests involved would infringe on the military’s expertise in such matters.”[27]

The military, for its part, has long attempted to serve the religious needs of its members. For instance, the military spends $85 million a year on the military chaplaincy.[28] Chaplains play many roles such as counseling servicemembers, saying prayers, leading worship services, and so on, and their presence in the military dates back to the Revolutionary War. The constitutionality of this program within the Army was confirmed in Katcoff v. Marsh where the Second Circuit Court of Appeals stated “the morale of our soldiers, their willingness to serve, and the efficiency of the Army as an instrument for our national defense rests in substantial part on the military chaplaincy, which is vital to our Army’s functioning.”[29]  The court reasoned, in part, that deference was owed to Congress for matters relating to military operations.

But, as stated above, in areas where conflict has arisen between members of the military and their assertion of rights, courts have refrained from performing an independent review of the cases and have deferred broadly to the military. However, the tide may have changed (or be changing) since Congress passed RFRA into law. RFRA has already had an impact on military operations since it is responsible for the process which allows servicemembers to make accommodation requests for religious practice that may otherwise violate a military rule. However, since RFRA has not been extensively applied to the military, every case, such as the Sterling case, could have a precedential effect.

THE COURT OF APPEALS RULING

On that crisp day in April 2016 when Ms. Sterling’s case was finally to be heard by the military’s highest court, the arguments started right on time. The government’s lawyer focused on the fact that Ms. Sterling never told her supervisor that the words were of a religious nature, that she never invoked RFRA as a defense for her actions, that she failed to attain permission through the established procedure, and that she had a history of misbehavior which supported her supervisor’s decision to ask that the words be taken down.  Mr. Clement argued that Ms. Sterling should not have had to mention that the words were religious to receive religious protection under RFRA and that at some point throughout the process of court-martial, when the court realized that the words were religious in nature, the court should have referred to RFRA, as required by law, to protect her rights.

The judges, for their part, seemed skeptical of both sides. They seemed suspicious of the government’s assertion that Ms. Sterling should have invoked RFRA to her supervisor when she received the order to take down the messages. The average military member is likely unfamiliar with RFRA as a law and requiring them to assert it before enjoying its benefits is not required by the law itself and seems unfair. However, the judges also seemed suspicious of Mr. Clement’s assertion that posting the words constituted religious action even though they were Biblical in origin.  The judges noted Ms. Sterling’s pattern of defiant behavior and seemed sympathetic to Ms. Sterling’s supervisor’s view that the words were meant to relay a hostile message.

Following oral arguments and throughout the summer, interested parties waited anxiously for the opinion to be released. Ms. Sterling’s case had been in the news for months.  First Liberty, a non-profit religious freedom law firm that took on the case and secured Mr. Clement’s representation, went to great lengths to gain public support.  A picture of a smiling Ms. Sterling wearing her uniform was published online alongside her view of what had occurred.  Others wondered if First Liberty had chosen the correct case to assert a precedential RFRA argument given that Ms. Sterling was not without blame in other areas of her service and given that she did not follow the established procedure to request permission to post the signs. Others were even more skeptical.  A blog entry on the Huffington Post was titled: The Case of Monifa Sterling: How to Turn a Bad Marine into a Persecuted Christian.[30]

Finally, in August of 2016, the Court of Appeals released its ruling. Ms. Sterling did not get the result she wished for. The Court ruled that her supervisor was justified in ordering Ms. Sterling to take the words down especially since the workspace was shared and because the words appeared somewhat volatile.[31]  More central to RFRA and its application, the Court ruled that posting words on one’s desk is not a type of “religious practice” that is protected under the law.[32]  RFRA defines religious practice to “include any exercise of religion, whether or not compelled by, or central to, a system of religious belief.[33] However, the Court did not believe that Ms. Sterling’s actions fell within this broad definition.

First Liberty has claimed that it will appeal the case to the Supreme Court. It is unknown if the Court will take the case. In the end, this case may stand for the proposition that military procedures must be followed, even when asserting religious rights. But, the case likely does not stand for the proposition that religious freedom is to be ignored by those in command for any articulable reason, either. One wonders how this case would have turned out had Ms. Sterling told her supervisor that the words were from the Bible, or if she had a better relationship with her supervisor. Either way, military leaders are probably relieved at the result since it vindicates their need to make in-the-moment decisions without having the responsibility to determine if a servicemember’s action is related to religion.

Looking back after the years of build-up, press coverage and even representation by a former Solicitor General, the Sterling case ended up not being very precedential. However, observers agree that more cases will come since the military is only getting more diverse. We’ll all have to keep watching.

[1] United States v. Sterling, 75 M.J. 407, 411-13 (C.A.A.F. 2016).

[2] Id.

[3] Id.

[4] Id.

[5] Id

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] See id.

[12] Id.

[13] See 42 U.S. Code § 2000bb-1

[14] Sterling, 75 M.J. at 411-13.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] 494 U.S. 872 (1990)

[20] Id.

[21] Id at 885.

[22] 42 U.S. section 2000bb-1

[23] Id.

[24] Jeffrey Lakin, Atheists in Foxholes: Examining the Current State of Religious Freedom in the United States Miitary, 9 First Amend. L. Rev,  713, 714 (2011).

[25] Id.

[26] 417 U.S. 733, 735-37 (1974).

[27] Jeffrey Lakin, Atheists in Foxholes: Examining the Current State of Religious Freedom in the United States Miitary, 9 First Amend. L. Rev,  713, 728 (2011).

[28] Julie B. Kaplan, Military Mirrors on the Wall, 95 Yale L.J. 1210 (1986).

[29] Katcoff v. Marsh, 755 F.2d 223, 229 (2d Cir. 1985).

[30] http://www.huffingtonpost.com/chris-rodda/the-case-of-monifa-sterli_b_9028368.html

[31] United States v. Sterling, 75 M.J. 407, 418-19 (C.A.A.F. 2016).

[32] Id.

[33] 42 U.S. Code Section 20000-5 (7).

M-VETS and Veterans: We Are In This Together!

M-VETS and Veterans: We Are In This Together

By Student Advisor Fall 2016

One of the hardest parts of working as a Student Advisor at M-VETS, is telling a client that they have to waits months on end to get the services that they deserve. We know that every day our clients wait on the Veterans Affairs (VA) is another day our clients go without the help they need.  M-VETS also understands that whether you’re trying to increase your VA benefits or change your discharge status, dealing with the VA or military can be anything but easy.  The process is not only frustrating and stressful, but it is time consuming and confusing.  Just try googling, “how to upgrade your discharge upgrade.”  You’ll likely come up with results that have multiple pages of confusing directions or webpages that tell you to fill out a DD Form 293 with little to no other advice.  What these websites fail to tell you is how long this process will take and what information you’ll need to gather to create the best possible case for yourself.  Below is a quick checklist M-VETS believes will help you get started with your VA or military claims prior to seeking legal advice.

1. Put your dates Together

One of the most difficult things we have to do as Student Advisors at M-VETS is to tell a possible client that we can’t help them because the statute of limitations to appeal their decision has passed. Before even getting started filling out a claim with the VA, you should know the time you have to appeal your decisions.  When it comes to appealing to the Discharge Review Board, you have 15 years to challenge your discharge from the date of discharge.  The Boards of Corrections provides only 3 years to appeal a decision if you “discover an alleged error or injustice.”  The Boards of Correction have been known to waive the 3-year requirement, but knowing this date is crucial and could be the reason you are denied an opportunity for a hearing or review.  While there are other time limits to consider, these are the important dates one should know before starting a VA or military board claim.

2. Get your documents Together

When you think or are even considering changing your discharge upgrade or increasing your VA benefits, M-VETS suggests that you start getting all your documents together. You should get your DD-214, all your military records, and any relevant medical records.

You should start by filling out a Standard Form 180 (SF-180). With this form, you can request your DD-214, medical documents, and all military documents.  M-VETS suggests that under the “Other” checkbox, you should write “I’m Requesting All Military Personnel and Medical/Service Treatment Records.”  After filling this form out, make sure you print the SF-180 out and sign it with a pen.  Electronic signatures, printed signatures, or no signatures at all will not be accepted by the National Archives.  Once the document is completely filled out and you have signed it, the third page will show you where to send the form to.  Find your corresponding military branch of service, the years you served, and the corresponding address/website you should send the SF-180 to for processing.  If you choose to mail the SF-180 to its corresponding address, you should use certified mail or at least track your mail to make sure it arrives to its proper location.  Getting these documents back from Archives can take as long as 3-12 months, so start this process as soon as possible.

If your case even has the possibility of requiring medical documents or medical evaluations, M-VETS suggests you get started gathering these documents as soon as possible. Getting any medical documents from the VA or personal doctors is sometimes vital to winning a case, even when you don’t think it could be.  For example, you may not think your discharge upgrade would require your medical documents, but, let’s say, during your appeals process, you think you might have/had PTS.  Having both military medical documents, as well as personal medical documents, may show you were suffering from PTS and could help you win your discharge upgrade case.

3. Get your story Together

At the end of the day, this is all about people and helping veterans. While at times, you may feel like a number dealing with the VA, M-VETS knows you are not.  M-VETS feels the best way to show the VA that you are more than just another number is by developing and creating your story.

M-VETS advises its clients to create a personal statement. This statement can be as long or as short as you want, but we have a few suggestions.  First, be honest.  It is imperative that you don’t lie or fabricate your story.  If the VA finds out you lied or didn’t tell the truth, you lose all your credibility.  Second, tell your story.  Talk about your background, why you joined the military, the problems you are experiencing that caused you to contact the VA, and what you’ve done since leaving the military.  This is your opportunity to tell your story, so take full advantage of it.  Third and most important, once you’ve written your personal statement, edit, edit, edit.  A famous Supreme Court Justice Louis Brandeis once said, “there is no great writing, only great rewriting.” This might seem ridiculous, but people notice when there are grammatical or spelling mistakes.  When you put together a polished product, the people reviewing your case at the VA or military board will notice.

Another important part of telling your story is having other people tell it for you. Find at least 3 people who can write a letter that can vouch for your character and/or who can corroborate your story.  This is a really important part of the discharge upgrade or VA appeals process.  The panel or administrator wants to hear stories from other people about your great military career or how you have been a productive member of society since leaving the military.

4. We are in this Together

If you are frustrated with the process, know you are not alone and there are organizations that can help. Please visit our website or give us a call.  Even if M-VETS cannot help you, we can put you in contact with someone who can.

M-VETS Checklist

  1. Put your Dates Together
    1. Discharge Review Board – 15 years
    2. Appeal to Corrections Boards – 3 years
      1. Corrections Boards are known to waive the 3-year requirement “in the interest of justice”
  2. Get your Documents Together
    1. SF-180
      1. Requests
        1. DD-214
        2. Medical Documents
        3. Military Personnel Documents
        4. All Other Documents pertaining to your military service
      2. Print the form
      3. Sign the form
        1. In pen
        2. Not in print (sign in cursive)
      4. Send it to the right address
        1. Know your branch of military
        2. Know the dates you served
        3. Find the address/website that corresponds
      5. Send as certified mail or track the document
      6. Be prepared to wait up to 3-12 months
    2. Medical Documents
      1. Gather any personal medical documents
      2. Gather any military documents you have from any military hospital you were treated at
  3. Get your Story Together
    1. Draft a personal statement
      1. Be honest
      2. Tell your story
        1. Background
        2. Why you joined the military
        3. Military career
        4. Why you are contacting the VA or board
        5. What you’ve done since leaving the military
      3. Edit, Edit, Edit
    2. Find at least 3 people to help tell your story
  4. We are in this Together
    1. Visit our website
      1. mvets.law.gmu.edu

Gulf War Syndrome: A Condition Felt By Many, But Known By Few

Gulf War Syndrome: A Condition Felt By Many, But Known By Few

by Jameson Goodell

Veterans often face many adverse effects from serving in combat. There are combat-related injuries and often many mental health effects. However for many veterans who served in the First Persian Gulf War there is another major health effect caused by their service. Gulf War Veterans’ Medically Unexplained Illness (more colloquially known as “Gulf War Syndrome”) is a cluster of unexplained symptoms suffered by veterans who have served in the Gulf Theater.[i] Because an estimated 30% of the 700,000 U.S. soldiers deployed to Saudi Arabia and Kuwait during this conflict are afflicted with this condition, it is important for all veterans and civilians to understand how the war has followed these people home in an unexpected way.[ii] It is important for all to educate themselves to learn what this devastating condition is and what the potential causes are so it can be better treated and prevented in the future. It is also useful for veterans who believe they may have this condition to learn how the Department of Veterans Affairs (VA) rates and awards compensation to individuals suffering from this condition.

            One of the biggest problems when it comes to diagnosing and treating veterans afflicted with Gulf War Syndrome is that there is no specific set of symptoms that underlie the condition and many veterans can display a wide array of symptoms. Notable is that various treatment agencies cannot even agree on an official name for Gulf War Syndrome. The VA calls it “Gulf War Veterans’ Medically Unexplained Illness”,[iii] the Committee on Gulf War and Health (“the Committee”) calls it “Chronic Multi-symptom Illness”,[iv] and the greater veteran population calls it “Gulf War Syndrome.” Nevertheless, most agree as to what the condition entails and what its most common symptoms are. The Committee defines the condition as:

The presence of a spectrum of chronic symptoms experienced for 6 months or     longer in at least two of six categories—fatigue, mood and condition, musculoskeletal, gastrointestinal, respiratory, and neurologic—that may overlap with but are not fully captured by known syndromes (such as [irritable bowel syndrome], [chronic fatigue syndrome], and fibromyalgia) or other diagnoses.[v]

This definition is extremely broad and can cover a wide variety of symptoms based on these six categories. Some examples of specific symptoms listed by the VA include: abnormal weight loss, fatigue, cardiovascular disease, muscle and joint pain, headache, menstrual disorders, neurological and psychological problems, skin conditions, respiratory disorders, and sleep disturbances.[vi] Also included can be symptoms of other conditions such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders like irritable bowel syndrome, functional dyspepsia, or abdominal pain syndrome.[vii] Once any number of these conditions manifest together, then they can be considered diagnosed with Gulf War Syndrome for treatment purposes, if there is no independent explanation for the symptoms.

Because Gulf War Syndrome can exhibit itself in many different ways with different symptoms, treatment for the condition can be as difficult as the diagnosis. The most effective treatments target the actual symptoms involved and many effective treatments match treatments for similar conditions that have similar symptoms.[viii] There is some evidence that certain neurological pharmaceuticals along with group cognitive behavioral therapy can be effective at treating many of the related symptoms.[ix] However, because there is no “one-size-fits-all” approach to managing this condition, an individualized approach is necessary.[x]

Probably the greatest mystery regarding Gulf War Syndrome is what actually causes it. Though many veterans of combat feel psychological effects from their time in war (such as veterans suffering shell shock after World War I), Gulf War Syndrome is different because it also includes severe physical effects. Thorough studies have been conducted to try to determine what the cause is, but it has been difficult to pinpoint an exact cause due to the large population of those affected and the different exposures those individuals faced. These studies have narrowed down the list of potential causes to about a half dozen potential causes. These include general psychological stress of war, exposure to smoke from Kuwaiti oil fires, depleted uranium, ingestion of pyridostigmine bromide (PB) pills (used as a protective measure against nerve gas exposure), pesticide use, and potential low-level exposure to sarin nerve gas.[xi] Of these, the most likely causes are ingestion of PB and pesticide use as there is evidence linking these to illnesses related to Gulf War Syndrome and these were almost exclusively used by soldiers in the Gulf War conflict.[xii]

An important point for all veterans who suffer from or believe they do suffer from Gulf War Syndrome is how to obtain benefits from the VA for their condition. The VA has very specific rules and regulations regarding service connection and disability rating for unexplained conditions suffered by Gulf War veterans. Generally for service connection a veteran must show that a certain condition was incurred coincident with service in the Armed Forces, or was a pre-existing condition that was aggravated during their service.[xiii] However, because of the difficulties in diagnosis with Gulf War Syndrome and the fact that symptoms can appear much later, there are different rules regarding service connection related to this illness.

The VA presumes that certain chronic, unexplained symptoms existing for 6 months or more are related to Gulf War service without regard to cause.[xiv] These presumptive illnesses must have appeared during active duty in the Southwest Asia theater of military operations or by December 31, 2021 and be at least 10 percent disabling under the VA’s disability ratings charts.[xv] It is important to note that this is not limited to service in the Persian Gulf War in 1991, but can also include any service in Iraq and the Middle East to present day.[xvi] There is some evidence and many individual cases that suggest that Gulf War Syndrome can occur in veterans of the current conflicts in the Middle East and VA recognizes this in allowing presumptive service connection for veterans who suffer this condition and served recently.[xvii]

The presumptive illnesses VA looks at are chronic fatigue syndrome, fibromyalgia, functional gastrointestinal disorders, and “undiagnosed illnesses.”[xviii] This means that if any of these four conditions are shown to have lasted for at least 6 months and the veteran served in the Southwest Asia theater of operations, then the condition is presumed to be service connection and no further evidence of cause need be presented. Chronic fatigue syndrome and fibromyalgia are well-defined on their own, but “functional gastrointestinal disorders” and “undiagnosed illnesses” are quite vague and reflect the unknown and varied nature of Gulf War Syndrome. The VA states that functional gastrointestinal disorders relate to chronic symptoms of the gastrointestinal tract which can include irritable bowel syndrome, functional dyspepsia, and abdominal pain syndrome.[xix] “Undiagnosed illnesses” relate directly to general symptoms such as fatigue, muscle and joint pain, headaches, skin conditions, sleep disturbances, and several others often felt by veterans with Gulf War Syndrome.[xx]

The second step in any VA claim is how the condition will be rated based on the VA’s disability ratings chart. Gulf War Syndrome is unique because its symptoms vary widely and it is difficult to measure these compared to other conditions. When it comes to Gulf War Syndrome, the VA rates each symptom separately, based on the closest analogous condition within the disability ratings chart. For example, if a veteran’s Gulf War Syndrome symptoms include fatigue, headaches, and a skin rash, then each of those symptoms would be rated separately based on the closest analogous condition. General fatigue can be rated as “chronic fatigue syndrome,” headaches can be rated under “migraine headaches,” and the skin rash can be rated as a general skin condition.

War can always leave a lasting impact on those fighting it. But for veterans suffering from Gulf War Syndrome, they endure significantly greater hardship than their peers. It is important for everyone, veterans and civilians alike, to educate themselves and understand the plight that these individuals face every day due to their service to our country. It is also useful for those who suffer from Gulf War Syndrome or think they may suffer from it to know how to treat their symptoms and how to navigate the VA claims process in order to receive compensation for their condition incurred during service.

[i] Gulf War Veterans’ Medically Unexplained Illnesses, U.S. Dep’t of Veterans Affairs (Oct. 21, 2016) http://www.publichealth.va.gov/exposures/gulfwar/medically-unexplained-illness.asp. [hereinafter VA on Gulf War Syndrome].

[ii] Steven Wilson, Gulf war illness is real: research consortium publishes main causes of illnesses impacting Persian Gulf War veterans, 58 Disabled American Veterans Magazine 22 (2016).

[iii] VA on Gulf War Syndrome, supra note 1.

[iv] Institute of Medicine of the National Academies, Gulf War and Health: Treatment for Chronic Multisymptom Illness 1 (2013) [hereinafter Treatment for Chronic Multisymptom Illness].

[v] Id. at 23.

[vi] VA on Gulf War Syndrome, supra note 1.

[vii] Id.

[viii] Treatment for Chronic Mutisymptom Illness, supra note 4, at 185.

[ix] Id. at 184-85.

[x] Id. at 185.

[xi] Research Advisory Committee on Gulf War Veterans’ Illnesses, Gulf War Illness and the Health of Gulf War Veterans: Scientific Findings and Recommendations 224-26 (2008).

[xii] Id. at 227.

[xiii] Principles relating to service connection, 38 C.F.R. § 3.303(a) (2016).

[xiv] VA on Gulf War Syndrome, supra note 1.

[xv] Id.

[xvi] See id.; see also Gulf War Service, U.S. Dep’t of Veterans Affairs (June 3, 2015) (listing countries considered part of “Southwest Asia theater of military operations), http://www.publichealth.va.gov/exposures/gulfwar/military-service.asp.

[xvii] See Stella M. Gwini, et. al., Multisymptom Illness in Gulf War Veterans: A Systematic Review and Meta-Analysis, 58 Journal of Occupational and Environmental Medicine 659, 664 (2016).

[xviii] VA on Gulf War Syndrome, supra note 1.

[xix] Id.

[xx] Id.