Category: Blog

Written by Fall 2023 M-VETS Student Advisor Alden Campo.

Introduction:

Mental Healthcare for U.S. Servicemembers and Veterans who have experienced the War on Terror is wholly insufficient to deal with the traumas they have undergone in service of their nation. Post-Traumatic Stress Disorder (“PTSD”) is commonplace throughout the armed forces amongst personnel who have seen active-duty combat, and many Servicemembers and Veterans turn to Substance Use to cope with the traumas related to their service, often concurrently developing a Substance Use Disorder (“SUD”). The War on Terror has primarily consisted of asymmetrical warfare, resulting in high stress and consistent trauma for those who have served in the Armed Forces during its time.

Prevalence of SUDs and PTSD:

SUDs have grown in prevalence over the past several years, with alcohol use being the most easily measured form of Substance Abuse in Veterans, with over 15% of Veterans engaging in binge drinking on a regular basis.[1] The complex interplay of combat experiences, PTSD, and lack of appropriate or effective mental healthcare during time in the service, followed by inadequate pathways to appropriate assistance upon discharge has resulted in an environment that is effectively encouraging Veterans to “self-medicate” through substance misuse.[2] More than two in ten Veterans with PTSD have a SUD, with the number of Veterans affected by SUDs increasing over recent years due to an increase in rates of PTSD in more recent military conflicts.[3] Twenty-nine percent (29%) of the veterans of the War on Terror will be diagnosed with PTSD at some point in their life.[4]

Barriers to Mental Healthcare:

Stigma surrounding mental health and reluctance to seek support hinder veterans from accessing the care they desperately need, with devastating results.[5] In Virginia alone in 2021, 193 Veterans took their own lives; in the United States that year, the number was 6,392.[6] In a single year, more veterans took their own lives than died in Afghanistan and Iraq.[7] Insufficient resources, both in terms of professionals and logistical accessibility, compound the problem, limiting Veterans’ ability to receive timely and adequate mental healthcare, resulting in Veterans choosing instead to turn to substance use to try and cope with their mental traumas. This has a dangerous effect on their health, both physically and mentally, and has lent itself to the increased rates of suicide that Veterans face.

M-VETS and Veterans:

The M-VETS Clinic has helped Veterans with SUDs and PTSD consistently throughout its history. As a Clinic, we are committed to assisting Veterans; all too often, legal issues can arise in the life of a Veteran who has an otherwise impeccable service record on account of undiagnosed PTSD and their SUD they develop in order to cope with trauma. Understanding the issues underlying the problems of those who come to our clinic seeking legal aid is absolutely essential to be able to provide the best legal services possible.

Conclusion:

Addressing substance use disorders and inadequate mental healthcare for War on Terror veterans requires a comprehensive approach. Dismantling stigma, improving access to mental health services, and advocating for policy changes are essential steps toward ensuring that returning veterans receive the comprehensive care they deserve. As we confront the grim reality of substance use disorders and inadequate mental healthcare among War on Terror veterans, it is vital to channel our efforts into helping and understanding those who have dealt with these problems. By understanding the issues, improving access to mental health services, and advocating for policy changes, we can ensure that those who served our nation receive the comprehensive care they deserve upon returning home, and can ensure that we aim to provide them with the best legal assistance and representation possible.

[1] State of Veteran Mental Health and Substance Abuse, https://americanaddictioncenters.org/blog/state-of-veterans

[2] Id.

[3] PTSD and Substance Abuse in Veterans, https://www.ptsd.va.gov/understand/related/substance_abuse_vet.asp

[4] How Common is PTSD in Veterans? https://www.ptsd.va.gov/understand/common/common_veterans.asp

[5] From War to Home: Psychiatric Emergencies of Returning Veterans, https://www.psychiatrictimes.com/view/war-home-psychiatric-emergencies-returning-veterans

[6]Veteran Suicide Data and Reporting, https://www.mentalhealth.va.gov/suicide_prevention/data.asp

[7] US Military Casualties of War, https://en.wikipedia.org/wiki/United_States_military_casualties_of_war

Written by Fall 2023 M-VETS Student Advisor Annah Seaford.

What is Military Parole in Place?

Military Parole in Place, often called Military PIP, is a way for immigrant family members of a current or previous servicemember to gain access to stay and work in the United States.[1] Military PIP also prevents family separation and can lead to permanent residence.[2] This policy was introduced in 2007 and United States Citizenship and Immigration Services (“USCIS”) began implementing it in 2010.[3] Military PIP must be renewed each year, though there is no limit to how many times an individual can apply or renew their application.[4]

Eligibility

To be eligible for Military PIP, the qualifying servicemember must:

• Serve active duty in the armed forces;
• Be in the selected reserve or ready reserve;
• Have served either active duty or in the reserves and not been dishonorably discharged.[5]

An individual applying for Military PIP must also not have been admitted to the United States.[6] For instance, an individual arriving with a tourist visa would not be eligible for Military PIP because they lawfully entered with the tourist visa.[7] However, there may be other ways for this person to gain lawful status past the expiration of their lawful entry.[8]

What to Submit

Individuals applying for Military PIP must submit the following evidence:

• I-131 Form;
• Evidence that shows a family relationship;
  • Examples include:
    • Marriage certificate
    • Birth certificate
    • Divorce decree
  • DD-214 to show that the individual was or is a servicemember;
  • Two passport style pictures;
  • And any other evidence that supports the PIP application.[9]

The documents submitted to USCIS will depend on the relationship between the servicemember and the individual who is applying.[10]

The Benefits of Military PIP

For a servicemember’s family, getting Military PIP can be extremely helpful for their immigration status and immigration case. This benefit aids the servicemember and their family because it can help prevent family separation.[11]

For regular civilians and their family members entering unlawfully, and staying for more than 180 days but less than 365 days results in a three-year bar.[12] If the individual was to enter unlawfully and stay for a year or more, they are subject to the ten-year bar.[13] Military PIP allows servicemembers’ families to avoid accruing unlawful presence, which would be a ground of inadmissibility regarding future immigration benefits.[14] It also cures their unlawful entry by providing them with an I-94 number.[15] Thus, it is like the individual entered lawfully.  Additionally, Military PIP individuals can file an I-765, which allows for employment authorization, and an I-485, which allows an individual to adjust their immigration status and apply for permanent residence.[16]

[1] What is Military Parole in Place (PIP)? Explaining the ‘parole’ program for certain family members of current and former U.S. armed forces personnel, Garfinkel Immigration Law Firm (May 8, 2023), https://www.garfinkelimmigration.com/2023/05/08/what-is-military-parole-in-place-pip-explaining-the-parole-program-for-certain-family-members-of-current-and-former-u-s-armed-forces-personnel/#:~:text=Military%20Parole%20in%20Place%20(PIP)%20is%20available%20for%20certain%20family,of%20other%20%E2%80%9Cparole%E2%80%9D%20programs.

[2] Parole in Place Explained, CitizenPath, https://citizenpath.com/parole-in-place/#:~:text=Protection%20from%20Deportation%20and%20Employment,record%20as%20evidence%20of%20parole.

[3] Garfinkel Immigration Law Firm, supra note 1.

[4] Id.; Discretionary Options for Military Members, Enlistees and their Families, USCIS (Nov. 15, 2023), https://www.uscis.gov/military/discretionary-options-for-military-members-enlistees-and-their-families.

[5] Discretionary Options for Military Members, Enlistees and their Families, USCIS (Nov. 15, 2023), https://www.uscis.gov/military/discretionary-options-for-military-members-enlistees-and-their-families.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] CitizenPath, supra note 2.

[12] What is Military Parole in Place (PIP)? Explaining the ‘parole’ program for certain family members of current and former U.S. armed forces personnel, Garfinkel Immigration Law Firm (May 8, 2023), https://www.garfinkelimmigration.com/2023/05/08/what-is-military-parole-in-place-pip-explaining-the-parole-program-for-certain-family-members-of-current-and-former-u-s-armed-forces-personnel/#:~:text=Military%20Parole%20in%20Place%20(PIP)%20is%20available%20for%20certain%20family,of%20other%20%E2%80%9Cparole%E2%80%9D%20programs.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

Written by Fall 2023 M-VETS Student Advisor Dylan Sparks.

Introduction:

Combatting drug addiction calls for a collaborative partnership between the criminal justice system and substance abuse treatment programs. Establishing a drug treatment court is a great way for a community to establish such a partnership, and this article will explain the benefits that drug treatment courts bring and detail the steps a community should take to establish one.

What are drug treatment courts?

Drug treatment courts have become an increasingly popular solution for reducing addiction and incarceration rates.[1] In Virginia, drug treatment court dockets have been used in some localities since 1995.[2] They are formed with the objective of offering treatment for addiction and mental health issues that traditional courts may not be able to provide,[3] and they often offer incentives for participation such as “case dismissal, reduction in charges, and/or reduction in supervision.”[4] All drug treatment court dockets in Virginia are overseen by the Office of the Executive Secretary of the Supreme Court of Virginia.[5] They are often supported by a mixture of state and local funding.[6] In addition to providing defendants struggling with substance abuse support to help navigate their addictions, Virginia drug treatment courts were estimated to save $19,234 per person in 2012 when compared to traditional court methods.[7]

If my jurisdiction doesn’t have a drug treatment court, how can we get one established?

To establish a drug treatment court, a jurisdiction must create a local drug treatment court advisory committee.[8] The advisory committee will plan the operations of the drug treatment court,[9] and the members of the committee should be composed of officials such as: (1) the judge who will oversee the drug treatment court; (2) the local commonwealth attorney; (3) the local public defender, or a member of the local criminal defense bar if there is not a public defender’s office; (4) and the local clerk of court, among other officials listed in Virginia Code Section 18.2-254.1(G) as required members of the committee.[10] Other individuals besides the required committee members are also able to join a jurisdiction’s advisory committee.[11] Once established, the advisory committee will determine matters such as eligibility for offenders to participate in the drug treatment court program and operational/logistical policies.[12] If you would like to establish a drug treatment court in your community, contact your city council or local board of supervisors to get the process started.

How can my community get funding for a drug treatment court?

There are federal grants available to help communities receive funding for their drug treatment courts. These include grants available through the Substance Abuse and Mental Health Services Administration,[13] the Bureau of Justice Assistance,[14] the Department of Justice, and other sources.[15] A non-governmental organization that has offered grants in the recent past is the Rural Health Information Hub.[16] In 2021, Culpeper County, Virginia received over $500,000 from the Bureau of Justice Assistance to establish their drug treatment court program.[17] Nelson County would later be awarded $700,000 from the Bureau of Justice Assistance in 2022 after the Nelson County Commonwealth’s Attorney’s Office submitted an application for the grant. [18] The Supreme Court of Virginia has also offered drug treatment court grants in the past.[19]

[1] Office of the Executive Secretary of the Supreme Court of Virginia, Virginia Drug Treatment Court Dockets Fiscal Year 2023 Annual Report 1, 1 (2023), https://www.vacourts.gov/courtadmin/aoc/djs/programs/sds/programs/dtc/resources/2023_dtc_report.pdf.

[2] Id.

[3] Id.

[4] Id.

[5] Id at 2.

[6] Id.

[7] National Center for State Courts, Virginia Adult Drug Treatment Courts Cost Benefit Analysis 1, 11 (Oct. 2012), https://www.vacourts.gov/courtadmin/aoc/djs/programs/sds/programs/dtc/resources/virginiadtccostbenefit.pdf.

[8] Virginia Code Section 18.2-254.1(G).

[9] Id.

[10] Id.

[11] Id.

[12] Virginia Code Section 18.2-254.1(H)-(I).

[13] While this grant is for 2023, the Substance Abuse and Mental Health Services Administration would be a good source to check for future grant opportunities. Substance Abuse and Mental Health Services Administration, Grants to Expand Substance Use Disorder Treatment Capacity in Adult and Family Treatment Courts, https://www.samhsa.gov/grants/grant-announcements/ti-23-007.

[14] Bureau of Justice Assistance, FY 2023 Adult Treatment Court Discretionary Grant Program, https://bja.ojp.gov/funding/opportunities/o-bja-2023-171509.

[15] U.S. Department of Justice Office of Justice Programs, Drug Courts, https://www.ojp.gov/feature/drug-courts/grants-funding.

[16] Rural Health Information Hub, Grants to Expand Substance Abuse Treatment Capacity in Adult and Family Treatment Drug Courts, https://www.ruralhealthinfo.org/funding/4074.

[17] Maria Basileo, Culpeper County Supervisors Accept Federal Funds for Drug Court, Culpeper Times (Jan. 21, 2022), https://www.insidenova.com/culpeper/culpeper-county-supervisors-accept-federal-funds-for-drug-court/article_292246b2-7af8-11ec-b402-8bb87cbb1e95.html.

[18] Caitlyn Frolo, Nelson Co. Awarded $700,000 Grant to Staff, Supply Newly Established Drug Court (Oct. 11, 2022), https://wset.com/news/local/nelson-county-awarded-700000-grant-staff-supply-newly-established-drug-court-commonwealths-attorney-october-2022.

[19] Odyssey Fields, Bedford County’s Family Treatment Docket to Receive $60K to Fill New Position (Jan. 9, 2024), https://www.wfxrtv.com/bedford-county/bedford-countys-family-treatment-docket-to-receive-60k-to-fill-new-position/; City of Norfolk, Acceptance of a Norfolk Adult Drug Treatment Court Grant of $250,000 from the Supreme Court of Virginia and Authorizing Expenditure of $78,500 as a cash match (Sep. 13, 2016), https://www.norfolk.gov/AgendaCenter/ViewFile/Item/2688?fileID=6034.

Written by Summer 2023 M-VETS Student Advisor Amanda S. Nhek.

Introduction

Women have always found a way to serve their country. Whether it be disguising themselves as men during the Revolutionary War or flying warplanes in modern times, they continue to contribute by any means necessary. The fight for equal opportunity is nothing new to women in the military. They undoubtedly had to overcome a multifaceted set of issues that have stemmed from the onset of our country’s existence. Albeit the roles of women have changed over time, their fight and passion to serve our country has remained unchanged.

Despite the military’s long history and tradition of being male-dominated, women have slowly integrated into every branch of service. Women now make up approximately 17% of the Armed Forces. Although great strides have been made, women are still underrepresented when it comes to filling leadership positions. The unique barriers and obstacles that women face unequivocally contribute to their minority status in the senior ranks.

Change is on the horizon when it comes to promoting women into leadership positions. However, several issues must be addressed before women can ascend into these positions. Although the Department of Defense (DoD) continues to strive and implement new policies to support women in the military, the organizational culture and climate needs much improvement.

Background

Women have served in the military for more than 200 years.[1] Dating back to the Revolutionary War, women traveled with the Continental Army to provide care for injured soldiers, cook meals, and do laundry. Nearly 20,000 women assisted soldiers in the Civil War and more than 3,000 women were deployed to British hospitals in France during World War I.[2] However, women were very limited in their ability to serve as members of the military until the Women’s Armed Services Integration Act was passed.

In 1948, Congress passed the Women’s Armed Services Integration Act allowing women to serve in all four branches of the military. However, the Act limited the number of women to 2% of the total number of enlistees per branch. In addition, the Act authorized the discharge of women if they were to become pregnant. Furthermore, women were not permitted to serve in combat roles or command men. However, in 1972, women gained the right to fulfill roles in commanding units that included men.

In 1988, the Risk Rule essentially “excluded women from non-combat units or missions if the risks of exposure to direct combat, hostile fire or capture were equal to or greater than the risk in the units they supported.”[3] However, in 1994, President Bill Clinton rescinded the Risk Rule and permitted women to serve in any role except those positions that included direct combat on the ground. However, this policy excluded women from approximately 200,000 positions.[4] Then in 2013, former Defense Secretary Leon Panetta lifted the ban on women engaging in direct ground combat. As a result, more women were allowed to acquire ranks previously unobtainable due to their lack of combat experience.

Roughly ten years since permitting women to engage in combat, the number of women holding leadership positions has increased.[5] However, women are still significantly underrepresented when it comes to holding high-ranking roles.[6] There are several issues that continue to contribute to the lack of female senior leadership.

Issues

First, recruitment and retention of female service members has been a constant issue. Unfortunately, women are 28% more likely to withdraw from the military than their counterparts.[7] Therefore, it is very difficult to promote women into leadership positions if they do not have very long careers in the military. In addition, the recruitment rate of women compared to men is significantly lower.[8] The Joint Advertising, Market Research & Studies program found that parents’ perception of the military is that women are not treated adequately.[9] Therefore, this has a discouraging effect on their daughters when it comes to enlisting.[10]

Gender stereotyping and workplace discrimination have contributed to a toxic work environment for many women in the military. In a 2018 Workplace and Gender Relations Survey of Active Duty Members, it was recorded that women “rated every aspect of their unit climate lower than did male service members and rated workplace hostility as higher.”[11] Furthermore, the DoD reported that ““sexual harassment is a leading factor affecting the unit climate on sexual assault.”[12] In 2021, approximately 36,000 service members were victims of sexual violence.[13] Of that total, 19,200 were reported by women.[14]

Retaliation is also a real and prevalent fear that numerous female service members experience. For example, 28% of women faced retaliation after a sexual assault.[15] Moreover, a third of women who reported a sexual assault were discharged within seven months.[16] In 2022, only 5% of all reports of sexual assault were tried by a court martial.[17] Even more alarming is only 2% of the offenders tried before the court were actually convicted of a nonconsensual sex offense.[18]

The lack of trust and faith in the military to protect women from sexual violence has contributed to the low retention rate. For instance, 1 in 4 victims of sexual violence took some form of action to leave the military. [19] Furthermore, 60% of women in the military don’t think that the military as a whole will ensure their safety.[20] If full integration of women in the military is going to be a reality, then the military must earn back the trust of women.

Recommendations

The future success of the U.S. Armed Forces depends not only on recruiting women but also on retaining women who are currently serving. The Defense Advisory Committee on Women in the Services (DACOWITS) has played an enormous role in the “recruitment, retention, employment, integration, well-being and treatment of women in the Armed Forces.”[21] As of 2022, the DoD has implemented “approximately 97 percent of the committee’s recommendations.”[22] It is without a doubt that the DoD is putting policies into place to allow women to climb the ranks, however, continued effort is needed to promote equity within leadership.

Mentorship

The importance of female role models is paramount to inspiring the next generation of female soldiers. The DoD could implement more mentorship programs in all branches of the military. The Sisters in Arms program is a prime example as the Army provides a mentorship program that supports women of all ranks as they progress through their careers. Additional resources to fund and promote these mentors and support groups for women will hopefully assist with the retention of female service members. In addition, more women will likely join the military and ascend through the ranks if more systems are in place to them help them navigate their career paths.

Family Care

A report by the 2020 Congressional Research Service found that a “larger percentage of female Servicemembers and veterans have cited childcare issues as a major stressor associated with their time in service relative to their male counterparts.”[23] The military could implement a more liberal leave policy that would allow women to take more time off in the event their child was sick. In addition, the DoD should look to implement even more lactation rooms in military facilities in efforts to accommodate nursing mothers. Many female service members also face several challenges when it comes to pregnancies. It is very difficult for women to pass retention standards following the birth of a child. The Federal Employee Paid Leave Act, that went into effect in 2019, limits maternity leave to 12 weeks.[24] However, the military should consider extending the maternity leave policy to a full year. This would give women adequate time to recover physically and emotionally to be able to continue on with their careers.

Improving Organizational Culture

Additional oversight is needed to help monitor and ensure compliance with the DoD workplace policies. The military could put more of an emphasis on leadership development to foster a more inclusive environment. The military can change an individual’s behavior, but changing someone’s character is an extremely difficult challenge. Therefore, the military should focus on workplace expectations and consequences of bad behavior. It is very important that the military allocate a substantial number of resources to educate and train its leaders on how to identify and deal with inappropriate behavior.

The military should require more robust reporting systems in order for soldiers to feel more comfortable disclosing instances of poor military climate. It is not enough to just train military personnel on appropriate workplace expectations; it is equally important for leaders to be held accountable for a poor command climate. Further investigation and action against those in leadership positions will likely curb the prevalence of an unhealthy military culture.

 Conclusion

 Regardless of the time in history, women have been a staple in the U.S. Armed Forces. The DoD has made tremendous advancements in their efforts to provide women an avenue to advance in the military. Nevertheless, it is immensely important that women continue to push pass barriers and advocate for equal opportunity.

 [1] Danielle DeSimone, Over 200 Years of Service: The History of Women in the U.S. Military, United Service Organizations, (Feb, 23, 2023), https://www.uso.org/stories/3005-over-200-years-of-service-the-history-of-women-in-the-us-military.

[2] Id.

[3] The Risk Rule, N.Y. Times (Aug. 15, 2009), https://www.nytimes.com/2009/08/16/us/16womenbox.html#:~:text=1988%20The%20rule%20“excluded%20women, in%20the%20units%20they%20supported.”

[4] Leon Panetta & Shelly Stoneman, It’s been 10 years since women were allowed to serve in combat. There’s a lot left to accomplish, The Hill, (Jan. 1, 2023), https://thehill.com/opinion/national-security/3834021-its-been-10-years-since-women-were-allowed-to-serve-in-combat-theres-a-lot-left-to. accomplish/#:~:text=Yet%20while%20American%20women%20had,artillery%20and%20other%20combat%20roles.

[5] See Emma Moore, Women in Combat: Five-Year Status Update, Center for a New American Security, (Mar. 31, 2020), https://www.cnas.org/publications/commentary/women-in-combat-five-year-status-. update#:%7E:text=The%201994%20rescinding%20of%20the,submarines%20and%20some%20small%20vessels.

[6] Panetta & Stoneman, supra note 4.

[7] Corey Dickstein, Women are making up more of the military, but are more likely to leave early, new report says, Stars and Stripes, (May 20, 2020), https://www.stripes.com/theaters/us/women-are-making-up-more-of-the-military-but-are-more-likely-to-leave-early-new-report-says-1.630516.

[8] Panetta & Stoneman, supra note 4.

[9] Moore, supra note 5.

[10] Id.

[11] Allison Abbe, The Balancing Act for Female Officers, War Room Online Journal, (Mar. 5, 2020), https://warroom.armywarcollege.edu/articles/balancing-act/.

[12] Military Sexual Assault Fact Sheet, Protect our Defenders, (Updated July 2023), https://www.protectourdefenders.com/wp-content/uploads/2023/07/POD-MSA-Fact-Sheet-2023.pdf

[13] Id.

[14] Id.

[15] RL Beckman, C Farris, LH Jaycox, TL Schell, Perceived Retaliation Against Military Sexual Assault Victims, RAND National Defense Research Institute (2021), https://www.rand.org/pubs/research_reports/RR2380.html.

[16] Department of Defense (DoD) Inspector General, Evaluation of the Separation of Service Members Who Made a Report of Sexual Assault (2016), https://media.defense.gov/2016/May/09/2001714241/-1/-1/1/DODIG-2016- 088.pdf.

[17] Supra note 12.

[18] Id.

[19] Id.

[20] Id.

[21] Panetta & Stoneman, supra note 4.

[22] Id.

[23]  Kamarck, Kristy N. (2020, March 19). Military Child Development Program: Background and Issues. (CRS Report No. R45288). https://crsreports.congress.gov/product/pdf/RL/RL33640.

[24] H.R.564 – 117th Congress (2021-2022): Comprehensive Paid Leave for Federal Employees Act, H.R.564, 117th Cong. (2021), https://www.congress.gov/bill/117th-congress/house-bill/564.

Written by Summer 2023 M-VETS Student Advisor Rebecca McGuinness.

Since the criminal justice system’s inception, rehabilitation has stood as a primary end towards which policymakers direct legislation.[1] The premise underpinning this objective is that the human person has the capacity to both abandon criminal activity and reform their behavior. This belief in the ability for a person to change was a uniquely American ideal.[2] Ove time, however, rehabilitation has fallen out of fashion within criminal courts and amongst lawmakers alike.[3] Lawmakers emphasized, instead, punishment for the crime rather than rehabilitation of the criminal.[4]

And yet, the Veterans Treatment Court (the “VTC”) stands in sharp contrast to these trends. Where adopted, the criminal court recognizes the unique difficulties that veterans face upon leaving the military that may result in criminal conduct.[5] Not unlike in juvenile courts or drug courts, in the VTC the law serves “as a kind of therapist or therapeutic agent,” with “legal rules, legal procedures, and the roles of legal actors” functioning as “social forces.”[6] Consequently, the court offers a program in which the veteran receives comprehensive care for underlying conditions while remaining accountable to these treatment goals through regular meetings with a judge.[7] Through these services, the VTC aims at helping veterans thrive within civil society without future contact with the criminal justice system.

Rather than simply punishing the criminal behavior, the veteran works with a multi-disciplinary team to find the root of the issue.[8] This team includes counselors, Department of Veterans Affairs (the “VA”) representatives, support organizations, and veteran mentors that address a wide range of challenges a veteran may face.[9] Veterans receive individual care to promote sobriety, recovery, and stability––offering to participants a new life instead of a criminal record.[10] Further, these courts offer specialized treatment for the unique life circumstances of veterans. These circumstances often include mental health issues triggered by service and unhealthy coping mechanisms like substance abuse.

The road to graduation does not come without intense intervention, a stretch of sobriety, and radical accountability. Participants undergo regular drug and alcohol testing, the failure of which results in judicial sanctions personally tailored to the veteran’s situation. As such, the veteran receives remedial solutions as opposed to the punitive sentences emphasized in traditional courtrooms. The success of these programs has encouraged jurisdictions across the country to adopt similar measures.[11] In fact, the VTC is the fastest growing specialized court in the country, spanning forty-five states.[12]

While these courts take on the character of the community, most follow a similar blueprint. This structure focuses on four key components: (1) access to mental health resources; (2) direct support from the VA; (3) consideration of combat-related issues; and (4) veteran peer mentors.[13] In practice, the VTC allows for the systematic identification of veterans within the civilian population to connect them with resources available because of their service.[14] This identification system allows the American people to “keep in mind the enduring debt we owe our country’s military veterans” despite imperfect post-service conduct.[15]

Not all veterans, however, are eligible to participate in the VTC. These courts require a qualifying veteran to have either a substance use disorder or a treatable psychiatric condition.[16] Additionally, each court adopts its own unique criteria which may include a required nexus between the crime and the veteran’s military service; combat experience; or an honorable discharge.[17]

For those who have received true recovery, the VTC is an opportunity of substantial importance. This program provided a “clean slate, a true second chance.”[18] The question remains unanswered, though, whether this return to a rehabilitative role of the judicial system has produced lasting healing for the veteran participants at large. Given that one of the primary concerns with rehabilitation is the risk of recidivism, the long-term data regarding veteran participants will likely determine whether similar initiatives to the VTC will expand to include a wider pool of people facing criminal charges.

While most VTC programs are too young to provide adequate data, many veterans have graduated from these programs with gratitude and a new-found zeal for life. Regardless of how the VTC may impact the criminal justice system at large, these courts signify an ongoing commitment to honoring out veterans and providing these men and women with the resources owed to them because of their sacrifices.

[1] See Francis A. Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose, 1, 4 (1981).

[2] See Morris V. Hoffman, The Case for Jury Sentencing, 52 Duke L.J. 951, 965 (2003) (“The penitentiary was a uniquely American invention, begun by the Quakers in Pennsylvania in 1790.”)

[3] See Francis T. Cullen, Rehabilitation: Beyond Nothing Works, 42 Crime & Just. 299, 299 (2013).

[4] See Francis A. Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose, 1, 4 (1981).

[5] Exec. Off. of the President, Fact Sheet: Veterans Treatment Courts, Off. of Nat’l Drug Control Policy, 1, 1 (2010) https://obamawhitehouse.archives.gov/sites/default/files/ondcp/Fact_Sheets/veterans_treatment_courts_fact_sheet_12-13-10.pdf.

[6] David B. Wexler, Therapeutic Jurisprudence in a Comparative Law Context, 15 Behav. Sci. & L. 233, 233 (1997).

[7] See Exec. Off. of the President, Fact Sheet: Veterans Treatment Courts, Off. of Nat’l Drug Control Policy, 1, 1 (2010) https://obamawhitehouse.archives.gov/sites/default/files/ondcp/Fact_Sheets/veterans_treatment_courts_fact_sheet_12-13-10.pdf.

[8] Id.

[9] Id. at 2.

[10] Id.

[11] Id.

[12] Barry C. Edwards, Ramon Hinojosa, & Komysha Hassan, How to Transform the Judicial System: Lessens from the Institutionalization of Veterans Treatment Courts, 21 N.Y.U. J. Legis. & Pub. Pol’y 841, 848 (2018-19).

[13] Id.

[14] Id. at 875.

[15] Exec. Off. of the President, Fact Sheet: Veterans Treatment Courts, Off. of Nat’l Drug Control Policy, 1, 1 (2010) https://obamawhitehouse.archives.gov/sites/default/files/ondcp/Fact_Sheets/veterans_treatment_courts_fact_sheet_12-13-10.pdf.

[16] R. Scott Johnson et al., Predictors of Incarceration of Veterans Participating in U.S. Veterans’ Courts, 68 Psychiatric Servs. 144, 144 (2017).

[17] Barry C. Edwards, Ramon Hinojosa, & Komysha Hassan, How to Transform the Judicial System: Lessens from the Institutionalization of Veterans Treatment Courts, 21 N.Y.U. J. Legis. & Pub. Pol’y 841, 877 (2018-19).

[18] Dep’t of Veterans Affairs, Second Chances for Veterans from Veterans Treatment Courts, at 1 (June 30, 2020). https://news.va.gov/76378/second-chances-veterans-veterans-treatment-court/#:~:text=Each%20Veteran’s%20road%20to%20Veterans,always%20consider%20the%20team%20family.

Written by Spring 2023 M-VETS Student Advisor Connor Brantley.

Background

On December 20, 2019, President Donald Trump signed the National Defense Authorization Act for Fiscal Year 2020 (NDAA) into law. As part of the Act, Congress created a new remedy for DOD Service members separated on or after December 20, 2019 seeking an appeal of their discharge characterization and who have exhausted all available appeals with the appropriate Service Discharge Review Board (DRB) and Board for Correction of Military/Naval Records (BCM/NR).[1] On April 7, 2021, the DOD announced the creation of the Discharge Appeal Review Board (DARB) which would fulfil the function as prescribed by the 2020 NDAA. [3] Decisions issued by the DARB are final, though non-binding. [4] If the DARB recommends that the petitioner’s service characterization be upgraded, the Secretary of the Military Department of the separated service member must approve it. [5] Conversely, if the DARB does not recommend an upgrade, there is no possibility for further administrative appeal or reconsideration of recommendations by the DARB. [6]

One of the key differences between the recently established DARB and other appeal options for petitioners is that the DARB operates independently of the military services and sits at the Office of the Secretary of Defense level, even though it is administered by the Air Force.[7] Furthermore, the DARB is a strict document review board and will only consider records from the BCM/NR case file of the petitioner. A petitioner may not submit new evidence to the DARB unless they submit a reconsideration request to their BCM/NR and receive a decision.[8]

DARB’s Purpose & Congressional Intent

While the DoD has marketed the DARB as “another opportunity” for veterans, it may not be clear to some why Congress has decided to establish another “cog” in the military bureaucracy. [9] It is impossible to pinpoint exact congressional intent, but DARB Chair Phyllis Joyner has provided insight. Joyner stated that the “possibility of different outcomes, as each service has its own regulations for discharge…and some may emphasize certain factors over others,” is a key factor in the DARB’s existence. [10] After all, a February 2023 report issued by the Government Accountability Office found that while separation boards of the military services generally align with DoD policy, disparities do exist—specifically reviewing the Air Force. [11] Joyner also pointed to the disparity in the decision process, saying “the combination of service culture, command discretion, and service characterization being determined by boards or courts composed of different service members leads to individualized outcomes, which may, at times, create unintended disparity.” [12]

DARB’s Current Effectiveness

Due to the DARB’s newness, there is not a great deal of data available on its effectiveness. At present, there is no publicly available data on DARB-issued recommendations and petitioner success rate. Although the DARB is intended to provide service members with a final chance to appeal their discharges, it is still unclear how effective it will be in achieving this goal.

For the DARB to be successful in its goal of serving as a neutral document review board, it must first be transparent and accessible. Anyone with experience attempting to locate DRB records knows the challenging research process associated with the publicly available reading rooms. Often, case law can be difficult to find and read. The DARB should make its recommendations publicly available in a searchable reading room and should allow potential petitioners and the public to sift through its data by date, keyword, and other fields to make it easier to locate.

Furthermore, the DARB should strive for expediency in its review process. Although a petitioner deserves the most thorough review possible, delays and the overall length of time between the time a petitioner submits a DRB petition and the time it takes to receive a response can be quite burdensome and may discourage potential petitioners with strong claims from seeking a review of their discharge. By serving as a strict document review panel, the DARB has the opportunity to more efficiently review cases and provide petitioners with the answers they have likely spent a significant amount of time belaboring over.

While the DARB provides veterans wishing to appeal their discharge a glimmer of hope, a significant more amount of data is needed to determine just how much of an impact its introduction will be and in order to be valuable to veterans, it must abide by principles of fairness, transparency, and expediency.

[1] S.1790 – National Defense Authorization Act for Fiscal Year 2020.

[2] Id.

[3] United States Department of Defense, DOD Announces New Discharge Appeal Review Board Option, https://www.defense.gov/Newsroom/Releases/Release/Article/2564345/dod-announces-new-discharge-appeal-review-board-option/.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] United States Department of Defense, Review Board Gives Vets Another Chance to Upgrade Discharge Characterization, https://www.defense.gov/News/News-Stories/Article/Article/3045028/review-board-gives-vets-another-chance-to-upgrade-discharge-characterization/.

[10] Id.

[11] United States Government Accountability Office, Administrative Separation Boards: Air Force Should Clarify Member Qualifications, https://www.gao.gov/assets/gao-23-105780.pdf.

[12] United States Department of Defense, Review Board Gives Vets Another Chance to Upgrade Discharge Characterization, https://www.defense.gov/News/News-Stories/Article/Article/3045028/review-board-gives-vets-another-chance-to-upgrade-discharge-characterization/.

Written by Spring 2023 M-VETS Student Advisor Megan Jones.

Background

The United States military is experiencing arguably the most challenging recruiting environment since the establishment of the all-volunteer force in 1973.

In 2022, all branches of the U.S. military struggled to reach their active-duty recruitment goals, with the Army, missing its goal entirely. The Army missed its recruiting goal by 15,00 active-duty soldiers, roughly 25 percent of its target.[i]

Although the branches met their recruiting goals, they did so just barely, and had to implement some major changes to pull it off. The Army, Marines, Navy, and Air Force all accelerated their delayed entry applicants at the end of the last fiscal year, leaving them with a far smaller pool to draw from this year.[ii] Even with the delay both the Navy and the Air Force had to offer extensive financial bonuses and take extreme on-time measures – such as the Navy increasing the maximum enlistment age from 39 to 41.[iii]

Despite these changes, it appears recruitment struggles will worsen in 2023. Except for the Marines, every branch expects to fall short by the end of the 2023 fiscal year. Recently, the Air Force announced it expects to miss its recruiting goals across all three of its components. According to the Vice Chief of Naval Operations, the Navy expects to fall about 6,000 short of its goals for 2023.[iv] The Army projects the largest shortfall of all.

Why is this happening now? No doubt the end of the war in Afghanistan partially explains the current state of unwillingness to join up. For the first time in almost 20 years, American troops are no longer fighting abroad against insurgency and terrorism.[v] However, looking at the bigger picture, it’s this and the convergence of several other negative factors that creates the perfect storm of recruiting challenges and results in the current recruitment crisis.

FACTORS CONTRIBUTING TO THE RECRUITING CRISIS

#1 Low Unemployment and a Tight Labor Market

First, recruiting challenges always increase when unemployment is low, but the tight labor mark further compounds the difficulty.[vi] When the labor market is tight companies are forced to increase wages and offer compelling incentives to attract quality workers – such as major corporations offering starting pay over $15 an hour with generous health and education benefits.[vii] In a tight labor mark intense competition for workers ensues, often leaving present military branches unable to match the benefits and earnings offered by private sector actors.

#2 Smaller Pool of Qualified Applicants

Second, the pool of qualified young people to join the military without needing an exception to the standards is rapidly dwindling.[viii] The percentage has dropped from 29 percent in 2016 to 23 percent in 2022.[ix] More and more young people are disqualified for obesity, drug use or criminal records.

However, satisfying the background and physical checks does not guarantee eligibility for service. Those who get over the initial physical and background hurdles cab later be disqualified for failing to meet the educational requirements for service. Declining test scores are in large part an effect of the COVID-19 pandemic.[x] School closures and remote learning caused test scores to decline dramatically throughout the country. Remote schooling has lowered scores on the ASVAB, the military’s standardized test for potential recruits, by as much as 9 percent.[xi]

#3 Lack of Propensity to Serve

Current recruitment challenges are also driven by a generational lack of interest and unwillingness to serve. An internal Defense Department survey found that only 9 percent of young American eligible to serve in the military without a waiver had any inclination to do so, the lowest number since 2007.[xii] Part of this trend is a lack of knowledge about the opportunities the military offers. With diminishing numbers of veterans in society and a receding presence of military representatives in schools and the community the younger generation receives less exposure to military service than in years past.[xiii] Another reason for young people’s diminished interest in serving relates to the lowered confidence in the military which is discussed further later in this blog post.

#4 Declining Trust in the Military

Lastly, there is a trending decline of public trust in the military. The decline can be attributed to a few reasons. The biggest reason is attributed to an increasing perception that U.S. military leaders are becoming too involved in politics. A recent survey conducted by the Reagan Foundation found 62% of respondents said they were losing trust and confidence because the military leadership is becoming overly politicized.[xiv] Presidential campaigns now routinely roll out lists of hundreds of retired flag officers and include uniformed military in campaign ads.

Another reason concerns increased publicity from partisans on both sides highlighting the different problems facing the military. Democrats criticize the small but significant problem of extremists in the military.[xv] Whereas Republicans focus on what they call the increasing “wokeness” in the military, accusing the Biden administration of weakening military strength by promoting critical race theory and LGBTQ+ individuality.[xvi]

The public’s confidence in military officials and leaders is lowered further by recent mishandling of military operations such as the disastrous withdrawal from Afghanistan in 2022.[xvii] Other reasons include skepticism in the performance and competence of presidents as the commander in chief and increased concern over military leadership’s strategy – or its seemingly lack thereof – towards the perceived threat posed by China.[xviii]

SUGGESTED CHANGES TO RESOLVE RECRUITING CHALLENGES

#1 Surpassing the Private Sector

If the military seeks to entice quality recruits for civilian and non-civilian jobs, then it must focus on tailoring competitive compensation and benefit programs to the unique needs of the targeted generation. Recently, President Biden signed the 2023 National Defense Act (NDAA) into law, ensuring military members will receive a 4.6 percent pay increase in 2023.[xix] This is the largest military pay raise in 20 years but may not be enough alone to incentivize enlistment. To truly compete with the private sector, recruitment efforts should highlight the opportunities that are unique to service such as career diversity, travel, and education.

#2 Improving Eligibility

With a shrinking pool of volunteers, the military needs to consider adjusting some outdated entry standards. Specifically, those policies relating to cannabis use, academic performance, and physical and mental health.

Although the military has prided itself on being a relatively drug-free force, societal attitudes towards certain recreational drugs like Marijuana has rapidly changed and led 21 states to legalize its use.[xx] Current military entry standards mean 22 percent of the 19–29-year-old population will require a waiver for drug use alone.[xxi] And while waivers do exist, the waiver process carries a lengthy wait time and viability depends on the amount of use, whether it was for medical or recreational purposes, and the logistical needs of the military branch in question. Consequently, a major chunk of otherwise eligible applicants often are disqualified from service for past drug use. Thus, it may be time for the military to reevaluate its blanket prohibition against the use of Marijuana while continuing drug testing during the recruiting process.

Funding for educational and nutrition programs. For example, a pilot program at Fort Jackson called the Future Soldier Preparatory Course has been successful in helping selected Army recruits overcome obstacles to military duty related to academic performance and physical health barriers.[xxii] For recruits barred due body weight issues, implementing a program through a national fitness chain using in-person or virtual coaching could be a more cost-efficient alternative. The services should also reconsider its practice of immediately disqualifying individuals who admit to seeking mental health treatment. With a growing awareness of how common and treatable most mental health issues are, the military does itself a disservice in denying otherwise eligible individuals.[xxiii] Further, its current mental health policies have the negative consequences of forcing a potential recruit to either deny himself or herself help or lie.

#3 Increasing Propensity to Serve

Increasing propensity to serve starts with community outreach and building up the awareness and attraction of service. Military services can expand Americans’ personal connections with those in uniform by making more of an effort to get servicemembers out in the public. In addition, the services should emphasize the unique nature of service that matter to the younger generation such as opportunities for diverse experiences and career paths within the stable employment offered.[xxiv]

Another way to increase young people’s exposure to the value of military service is by increasing the number of Junior Reserve Officer Corps (JROTC) programs in middle and high schools across the country. JROTC programs are disproportionately concentrated in the South and is underrepresented in almost two-thirds of U.S. states.[xxv] Increasing the number and location of JROTC programs provides more students leadership and citizenship instruction and exposes them to the U.S. military without obliging them to join. Other options include exploring new programs designed to incentivize and motivate young people – such as a program to forgive student debt for recruits who successfully complete their initial tour of training.[xxvi]

#4 Building Back Trust Through Apoliticism

Lastly, military officials need to make a concerted effort to stay out of politics. First, the military needs to do more to resist civilian leaders’ efforts to involve it in partisan politics. Beyond intimating disagreement, military leaders must make their opposition clear through decisive acts such as declining to passively stand behind a political leader at rallies or press conferences when he or she is making inflammatory statements about political issues or opponents.[xxvii] Second, military forces should not be deployed in politically charged, domestic situations unless absolutely necessary. Managing protests is a task for law enforcement, not active troops. Finally, all attempts by political leaders to politicize the military must be called out and publicly admonished – by media, other politicians, and military leaders – for compromising the military’s nonpartisan ethic.

[i] David Barno and Nora Bensahel, Addressing the U.S. Military Recruiting Crisis, War on the Rocks (Mar. 10, 2023), https://warontherocks.com/2023/03/addressing-the-u-s-military-recruiting-crisis/.

[ii] Id.

[iii] See id.

[iv] Meghann Myers, Army, Navy, and Air Force Predict Recruiting Shortfalls This Year, Military Times (Apr. 19, 2023), https://www.militarytimes.com/news/your-military/2023/04/19/army-navy-and-air-force-predict-recruiting-shortfalls-this-year/.

[v] See Barno and Bensahel.

[vi] Heather Mongillo, Tough Military Recruiting Environment is About More than Low Unemployment, Experts Say, USNI News (Dec. 1, 2022), https://news.usni.org/2022/12/01/tough-military-recruiting-environment-is-about-much-more-than-low-unemployment-experts-say.

[vii] Thomas W. Spoehr, The Administration and Congress Must Act Now to Counter the Worsening Military Recruiting Crisis, The Heritage Foundation (Jul. 28, 2022), https://www.heritage.org/defense/report/the-administration-and-congress-must-act-now-counter-the-worsening-military.

[viii] Thomas Novelly, New Study Finds Even More Young Americans Are Unfit to Serve, Military Officers Association of America (Sep. 30, 2022), https://www.moaa.org/content/publications-and-media/news-articles/2022-news-articles/new-study-finds-even-more-young-americans-are-unfit-to-serve/.

[ix] See Thomas W. Spoehr, The Administration and Congress Must Act Now to Counter the Worsening Military Recruiting Crisis, The Heritage Foundation (Jul. 28, 2022), https://www.heritage.org/defense/report/the-administration-and-congress-must-act-now-counter-the-worsening-military.

[x] See Barno and Bensahel.

[xi] See id.

[xii] Courtney Kube and Molly Boigon, Every Branch of the Military is Struggling to Make its 2022 Recruiting Goals, Officials Say, NBC News (Jun. 27, 2022), https://www.nbcnews.com/news/military/every-branch-us-military-struggling-meet-2022-recruiting-goals-officia-rcna35078.

[xiii] Hope H. Seck, Facing a ‘Perfect Storm’: The Military Recruiting Crisis, Military Officers Association of America (Dec. 14, 2022), https://www.moaa.org/content/publications-and-media/news-articles/2022-news-articles/facing-a-perfect-storm-the-military-recruiting-crisis/.

[xiv] Kori Schake, Don’t Drag the Military into Politics, War on the Rocks (Dec. 13, 2022), https://warontherocks.com/2022/12/dont-drag-the-military-into-politics/.

[xv] Id.

[xvi] See id.

[xvii] Thomas W. Spoehr, Drop in Public Trust in Military Officers Portends Danger, The Heritage Foundation (Jan. 25, 2022), https://www.heritage.org/defense/commentary/drop-public-trust-military-officers-portends-danger.

[xviii] The 2022 Reagan National Defense Survey, Reagan Institute Summary, (November 2022), https://www.reaganfoundation.org/reagan-institute/centers/peace-through-strength/reagan-institute-national-defense-survey/.

[xix] Brittany Crocker and Ryan Guina, 2023 Military Pay Charts, The Military Wallet (Jan. 24, 2023), https://themilitarywallet.com/2023-military-pay-charts/#:~:text=President%20Biden%20has%20signed%20the,Advertising%20Disclosure.

[xx] Schyler Peck, Refer Recruits: Why the US Must Change its Stance on Marijuana, Task & Purpose (Sept. 8, 2022), https://taskandpurpose.com/opinion/us-military-change-marijuana-policy/.

[xxi] See id.

[xxii] See Barno and Bensahel.

[xxiii] See id.

[xxiv] Center for Strategic International Studies, Bad Idea: Relying on the Same Old Solutions to Meet the Military Recruitment Challenge, CSIS – Commentary (Mar. 10, 2023) https://www.csis.org/analysis/bad-idea-relying-same-old-solutions-meet-military-recruitment-challenge.

[xxv] See Barno and Bensahel.

[xxvi] See Thomas W. Spoehr, The Administration and Congress Must Act Now to Counter the Worsening Military Recruiting Crisis, The Heritage Foundation (Jul. 28, 2022), https://www.heritage.org/defense/report/the-administration-and-congress-must-act-now-counter-the-worsening-military.

[xxvii] Risa Brooks, What Can Military and Civilians do to Prevent the Military’s Polarization, War on the Rocks (Apr. 27, 2020), https://warontherocks.com/2020/04/what-can-military-and-civilian-leaders-do-to-prevent-the-militarys-politicization/.

Written by Spring 2023 M-VETS Student Advisor Kyle Elzey.

Background

On August 24^th, 2021, following the approval of the Pfizer BioNTech vaccine by the Food and Drug Administration (FDA), the Secretary of Defense (SECDEF) issued the Mandatory Coronavirus Disease 2019 (COVID-19) Vaccination of Department of Defense (DoD) Service Members memorandum, to ensure the health and operational readiness of the Force.[1] To effectuate this intent, the memorandum directed the “Secretaries of the Military Departments to immediately begin full vaccination of all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard, who are not fully vaccinated against COVID-19.”[2] While the memorandum unequivocally directs the vaccination of all service members, it instructs the Military Departments to implement the requirements of the COVID-19 mandate in line with existing DoD policies and procedures, to include pre-established medical and administrative exemptions.[3] However, unlike the other 17 vaccinations administered by the DoD,[4] thousands of servicemembers would apply for religious and medical exemptions to the COVID-19 vaccination.[5] In total, 8,400 service members would outright decline the vaccination and subsequently be discharged, for failure to obey a lawful order.[6] As of December 20^th, 2022, the DoD reported that 2,000,195 service members have been vaccinated against COVID-19,[7] accounting for roughly 96 percent of the Active and Reserve Forces.[8]

Recission of the COVID-19 Mandate

Unlike other vaccinations, the COVID-19 vaccine has been highly politicized due to partisan divisions, misinformation, and concerns over personal liberties.[9] Due in part to the political contention and concerns that the vaccine mandate has harmed military recruitment and retention,[10] Congress directed the DoD to repeal the COVID-19 mandate in the National Defense Authorization Act (NDAA) for Fiscal Year 2023.[11] In response, on January 10^th, 2023, the SECDEF rescinded the COVID-19 mandate by memorandum, and directed that no service members currently serving in the Armed Forces should be separated based on a refusal to receive the COVID-19 vaccination if they sought accommodation on religious, administrative, or medical grounds.[12] The memo further directed that for current service members who requested such exemptions, the Military Departments should update the service member’s records to remove adverse action solely associated with the denial of the COVID-19 vaccination to include letters of reprimand.[13]

Recourse Options for Previously Discharged Service Members

While the recession provides relief to current service members pending separation for non-compliance with the mandate, it does not extend new relief to the 8,400 service members previously discharged. For service members discharged between August 24^th, 2021, and August 24^th, 2023, Congress precluded the DoD from awarding any characterization less than a General, Under Honorable Conditions discharge for failure to obey a lawful order to receive the COVID-19 vaccine.[14] However, service members who believe they should have received an Honorable characterization rather than a General, Under Honorable Conditions discharge can still petition their respective Discharge Review Board (DRB) for a discharge upgrade.

To have a discharge characterization upgraded by a DRB from General, Under Honorable Conditions to Honorable, the service member would need to demonstrate that the discharge was either improper or inequitable.[15] For a discharge to be found improper there must be “an error of fact, law, procedure, or discretion associated with the discharge that was prejudicial to the veteran’s rights, or (B) where a retroactive “change in policy . . . requires a change in the discharge.”[16] Based on this standard a DRB is unlikely to grant a discharge upgrade on the basis of impropriety as a refusal to obey a lawful order is a flagrant violation of military discipline and regulations, and therefore unlikely to be found in error of fact, law, procedure or discretion. Subsequently, unless further action is taken by Congress or by the DoD to retroactively extend relief to those previously discharged for refusal to comply with the vaccine mandate, a discharge upgrade request on the basis of impropriety is unlikely to result in a discharge upgrade.

However, due to inconsistencies in how discharge characterizations have been assigned for vaccine mandate non-compliance, service members may argue for a discharge upgrade on the basis of inequity. Under this standard, a discharge is considered equitable unless (A) the current discharge policies and procedures are materially different than those that led to the veteran’s discharge, (B) the discharge was inconsistent with disciplinary standards at the time of discharge, or (C) the veteran’s service record shows that relief is warranted after considering the applicant’s quality of service and capability to serve.^[17] Based on this service members may claim that the disparities in discharge characterizations between the services demonstrates inconsistent disciplinary standards. For example, the Navy has to date given all its personnel who refused the vaccination an Honorable discharge characterization, whereas the Marine Corps has separated 78% of its personnel for the same offense with a General, Under Honorable Conditions characterization.[18] Therefore, service members may have a valid basis to request a discharge upgrade on the grounds of inequity, if they can demonstrate a disparity in discharge characterizations across the services, and appeal to the need for consistent application of disciplinary standards across the DoD.

[1] See Lloyd J. Austin, Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members, at 1 (Aug. 24, 2021).

[2] Id.

[3] See id.

[4] See Khaleda Rahman, Full List of Vaccines Mandated by the U.S. Military, Newsweek (Oct. 21, 2021) (identifying the 17 different vaccines the DoD already administers to service members) https://www.newsweek.com/list-vaccines-mandated-us-military-covid-1641228.

[5] See Lolita C. Baldor, Pentagon Drops COVID-19 vaccine requirements for troops. Associate Press (Jan. 10, 2023) https://www.pbs.org/newshour/politics/pentagon-drops-covid-19-vaccine-requirement-for-troops; Meghann Myers, Troops opposed to the COVID-19 vax can get a waiver, but they’re rare (Oct. 18 2021) (describing how prior to COVID-19 vaccinations, request for religious and administrative exemptions to vaccines were rare, and nascently tracked by the Services) https://www.militarytimes.com/news/your-military/2021/10/18/troops-opposed-to-the-covid-19-vax-can-get-a-waiver-but-theyre-rare/.

[6] See Lolita C. Baldor, Pentagon Drops COVID-19 vaccine requirements for troops. Associate Press (Jan. 10, 2023) https://www.pbs.org/newshour/politics/pentagon-drops-covid-19-vaccine-requirement-for-troops;

[7] See U.S. Department of Defense, Coronavirus: DoD Response (last accessed May 15, 2023) https://www.defense.gov/Spotlights/Coronavirus-DOD-Response/.

[8] See Lloyd J. Austin, Recission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination Requirements for Members of the Armed Forces, at 1 (Jan. 10, 2023).

[9] See Hart, P.S., Chinn, S., & Soroka, S. “Politicization and Polarization in COVID-19 News Coverage”, Sci. Comm. 42, 679–697 (Oct. 2020).

[10] See Lolita C. Baldor, Pentagon Drops COVID-19 vaccine requirements for troops. Associate Press (Jan. 10, 2023) https://www.pbs.org/newshour/politics/pentagon-drops-covid-19-vaccine-requirement-for-troops.

[11] See National Defense Authorization Act for Fiscal Year 2023, H.R.7900, 117th Cong. § 525 (2022).

[12] See Lloyd J. Austin, Recission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination Requirements for Members of the Armed Forces, at 1 (Jan. 10, 2023).

[13] See id.

[14] See National Defense Authorization Act for Fiscal Year 2022, S.1605, 117th Cong. § 736 (2021).

[15] See 32 C.F.R. § 70.9.

[16] See id.

[17] See id.

[18] See Greg Hadley, Nearly All Airmen Discharged Over COVID-19 Vaccine Get General Discharges, Air & Space Forces Magazine (Apr. 29, 2022) https://www.airandspaceforces.com/nearly-all-airmen-discharged-over-covid-19-vaccine-get-general-discharges/.

 

Written by Spring 2023 M-VETS Student Advisor Hanna-Elizabeth B. Montgomery.

The Veterans Auto and Education Improvement Act of 2022 was signed into law on January 5, 2023.[1] This Act makes two major changes to the Service Members Civil Relief Act, specifically concerning military families. The first change allows military spouses to receive reciprocity for their professional licenses when they move to a new state under Permanent Change of Station (PCS) orders. The second change allows military families flexibility in where they file state taxes.

1. PORTABILITY OF PROFESSIONAL LICENSES

Under PCS Orders, the Department of Defense (DOD) moves more than 400,000 service members and their families annually.[2] Every year, 14.5% of the military spouse population moves across state lines compared to the 1.1% of civilians that move across state lines.[3] Military OneSource, the Department of Defense’s (DOD) information portal for military families, estimates that “up to 34% of military spouses in the labor force are required to be fully licensed; and of those spouses, 19% experience challenges maintaining their licenses.”[4] The current Secretary of Defense, Secretary Austin, has identified this challenge as a top concern and describes the DOD’s commitment to military members and their families as “a sacred obligation … Our military families provide the strong foundation for our Force, and we owe them our full support.”[5]

The Veterans Auto and Education Improvement Act aims to alleviate this burden by ensuring that military spouses and servicemembers can transport their professional license from state to state. Specifically, when a servicemember or spouse of a servicemember relocated due to military orders, their license from the previous state must be considered valid at a “similar scope of practice” in the new state. The servicemember or spouse must (1) provide a copy of the military orders to the licensing authority in the new state; (2) remain in good standing with all licensing authorities that have issued licenses to the servicemember or spouse; and (3) submit to the authority of the new licensing jurisdiction for the purposes of “standards of practice, discipline, and fulfillment of any continuing education requirements.”[6] Law licenses are the only professional license specifically exempt under this statute.[7]

As of May 2023, there is still not a uniform process for military spouses or servicemembers to transfer their license from one state to another. In the wake of this act, multiple states, like Pennsylvania, Arkansas, and Massachusetts, have signed interstate compacts which create a uniform and relatively simple process for transferring licenses between states.[8] If there is an interstate compact agreement in a state, that process will govern.[9] The interstate compact agreements vary by profession and not all states have one. In states that lack interstate compacts, military families should check with the licensing authority in their new state. Military OneSource estimates that 66% of state licensing boards allow military spouses to begin working within 30 days.[10] Further, Secretary Austin, directed the DOD to “accelerate the development of seven additional occupational licensure interstate compacts with organizations representing multiple professions” in September of 2022.[11]

In addition to advocating for interstate compacts and reciprocity, the military provides financial support for transferring professional licenses. The Spouse License Reimbursement Program allows military spouses to be reimbursed for their licensing costs associated with a PCS move.[12] While each branch of the military has its own requirements for how to apply for the reimbursement, all can grant reimbursements of up to $1,000.[13]

2. RESIDENCE FOR TAX PURPOSES.

Filing taxes for military families is typically complicated. State taxes are usually filed based on someone’s state of residency. A residence is relatively transient. Often residency is determined by physical presence in a state. Most states have statutes defining how much of the year a person must be physically present in the state to be taxed in that state. For Virginia, a person needs to have a residence in Virginia for 183 days of the taxable year to be taxed in Virginia.[14] Other states, like California, requires taxes to be paid based off domicile as well as residency.[15]

Legally, a residence and a domicile are different, though the difference is nuanced. Someone’s domicile is his or her “true, fixed, and permanent home,” to which he or she has the “intention of returning whenever he is absent therefrom.”[16] Domicile is sticky and is difficult to remove.[17] One can change his or her domicile by moving to a different domicile (state) and intending to remain in the new domicile.[18] Servicemembers typically move from state to state under Permanent Change of Station orders. The servicemember is living in the new state for so long as their orders allow, and then they will move to another state. Although servicemembers are moving to and residing in a new state, they have no intent to remain in the new state.

Because servicemembers do not have intent to remain in the state they move to, their domicile often remains with the state in which they entered in the military. To accommodate servicemembers unique situation, Congress passed the servicemembers civil relief act in 2003. This act allowed servicemembers to file taxes in either their place of residence or their domicile. Subsequent to the SCRA, Congress passed the Military Spouses Residency Relief Act (MSRRA).[19] Since military spouses and their servicemembers often file joint taxes, the MSRRA aims to simplify the burden military families faced in becoming required to file taxes for differing states due to a PCS. The MSRRA allowed military spouses to declare the same state of residency and domicile as their servicemember spouse.[20]

Now the Veterans Auto and Education Improvement Act provides multiple options for military families to file taxes. The law states that “for any taxable year of the marriage, a servicemember and the spouse of such servicemember may elect to use for purposes of taxation, regardless of the date on which the marriage of the servicemember and the spouse occurred, any of the following: (A) The residence or domicile of the servicemember. (B) The residence or domicile of the spouse. (C) The permanent duty station of the servicemember.” [21] This means that servicemembers and spouses can choose between which state they file income taxes in. Certain states, like Florida and Texas, are well known in the military community for having no state income tax.

This Act can give servicemembers and their families up to four different states to file their taxes in. Servicemembers domicile is typically the place he or she entered in the military. Spouses may have a separate domicile from before the marriage if he or she lived in a state and had intent to remain there before marrying the servicemember. If the servicemember and his or her spouse are living apart, then the spouse and servicemember may have a different residence. The law allows servicemember and their spouse to elect the residence of either the servicemember or the spouse. Finally, the servicemember can file at his or her permanent duty station. In the National Capital Region, a servicemember may reside in a state that is not where he or she is stationed. For example, a servicemember may live in Maryland, but work at the Pentagon, in Virginia.

Conclusion

These changes are expected to help military families navigate the geographic instability of military life. The military spouse licensing relict should greatly dimmish the waiting time and costs associated with obtaining a new license. As Secretary Austin explained, “military spouses provide the strong foundation upon which their loved ones in uniform stand – and our communities and our Nation rely on their resilience. We owe them our energetic, unwavering support.”[22]

[1] P.L. 117-333, Veterans Auto and Education Improvement Act of 2022.

[2] PCS: The Basics of Permanent Change of Station, Military OneSource, Jul. 8, 2022, https://www.militaryonesource.mil/moving-housing/moving/planning-your-move/pcs-the-basics-about-permanent-change-of-station/

[3] Enhanced Military Spouse Licensure Portability, 2022,  https://statepolicy.militaryonesource.mil/key-issue/enhanced-military-spouse-licensure-portability/2022

[4] Id.

[5] Llyod Austin, Secretary of Defense, Taking Care of Our Service Members and Families Memorandum, Sept 22, 2022,  https://media.defense.gov/2022/Sep/22/2003083398/-1/-1/0/TAKING-CARE-OF-OUR-SERVICE-MEMBERS-AND-FAMILIES.PDF (hereinafter “Austin”).

[6] P.L. 117-333, SEC. 705A(a).

[7] The Military Spouse J.D. Network advocates for licensing accommodations for military spouse attorneys. Currently, 44 states have licensing accommodations for military spouse attorneys, and MSJDN has efforts underway in four other states. Rule Change, MSJDN, https://msjdn.org/rule-change/.

[8] Gross, Natalie, It’s Getting Easier For Military Spouses to Transfer Professional Licenses, Mar. 18, 2023, https://thespouseangle.com/news/its-getting-easier-for-military-spouses-to-transfer-professional-licenses

[9] Smith, Dawn, What to Know About the 2023 Military Spouse Licensing Relief Act, Feb. 3, 2023, https://blog.militarybyowner.com/what-to-know-about-the-2023-military-spouse-licensing-relief-act

[10] Military Spouse Licensure Reports, 2021 Report, https://www.militaryonesource.mil/data-research-and-statistics/reports/military-spouse-licensure-reports/.

[11] Austin, supra n.5.

[12] See License and Certification Reimbursement for Spouses, May 26, 2022, https://www.dcms.uscg.mil/Our-Organization/Assistant-Commandant-for-Human-Resources-CG-1/Director-of-Military-Personnel-CG-13/Military-Personnel-Policy-CG-133-/Spouse-License-Reimbursement/

[13] Transferring Your Professional License; What’s Involved, Military OneSource, Mar. 25, 2022, https://www.militaryonesource.mil/education-employment/seco/transferring-your-professional-license-what-s-involved/

[14] 23 VAC10-110-30. Definitions.

[15] See Residents, State of California Franchise Tax Board, https://www.ftb.ca.gov/file/personal/residency-status/index.html.

[16] Stine v. Moore, 213 F.2d 446, 448 (1954).

[17] See McDonald v. Mabee, 243 U.S. 90 (1917).

[18] Mitchell v. United States, 88 U.S. 350 (1875).

[19] The Military Spouses Residency Relief Act, Military OneSource, Nov. 8, 2021, https://www.militaryonesource.mil/financial-legal/legal/military-spouses-residency-relief-act/

[20] 111 P.L. 97, Military Spouses Residency Relief Act.

[21] P.L. 117-333, Veterans Auto and Education Improvement Act, Section 18.

[22] Austin, supra n. 5.

Written by Fall 2022 M-VETS Student Advisor Grace Roman.

Introduction

On December 27, 2021, President Biden signed the National Defense Authorization Act for Fiscal Year 2022 (NDAA 22).[1]  NDAA 22 includes many notable changes to the Uniform Code of Military Justice (UCMJ) that must be fully implemented by December 27, 2023.

The most sweeping changes to the UCMJ occurred in the wake of the murder of Army Specialist Vanessa Guillen.  SPC Guillen disappeared from Fort Hood on April 22, 2020.[2]  Her remains were found on June 30, 2020 after being murdered by another soldier.[3]  Before her death, SPC Guillen reported to friends and family members that she was being sexually harassed.[4] Following SPC Guillen’s murder, many across the country were outraged, and calls began for reform to military command policy governing many offenses.  The UCMJ reforms in NDAA 22 are the culmination of these calls, marking “historic changes to how the Armed Services will prosecute certain victim-centric offenses, including sexual assault. . . .”[5]

Victim-Centric Changes

            Special Trial Counsel

Before NDAA 22, military commanders were responsible for deciding to refer all cases to court-martial. This structure had been the subject of reform efforts for nearly two decades, with even retired generals speaking out.  Retired Army Major General Dennis Laich is one such retired high-ranking officer, who said, “We have relied on the chain of command to deal with this issue, and the chain of command has failed for decades.  America gives us their sons and daughters, and we’ve failed to discharge the responsibility to take care of them.”  SPC Guillen’s death was the force that finally moved the needle to change this structure.  Accordingly, Section 531 of NDAA 22 shifts the referral responsibility to a newly created Special Trial Counsel (STC), giving the STC “exclusive authority” regarding the decision to dismiss, refer, or offer a plea bargain for certain violations of the UCMJ.[6]  These specific crimes include:

• Article 117a (Wrongful Broadcast or Distribution of Intimate Visual Images);
• Article 118 (Murder);
• Article 119 (Manslaughter);
• Article 120 (Rape and Sexual Assault Generally);
• Article 120b (Rape and Sexual Assault of a Child);
• Article 120c (Other Sexual Misconduct);
• Article 125 (Kidnapping);
• Article 128b (Domestic Violence);
• Article 130 (Stalking);
• Article 132 (Retaliation);
• Article 134 (Child Pornography)
• Article 82 (Solicitation to commit one of the foregoing offenses);
• Article 81 (Conspiracy to commit one of the foregoing offenses; and
• Article 80 (Attempt to commit one of the foregoing offenses.[7]

The aim of the implementation of the STC is to eliminate a command’s discretion in charging decision making, instead placing the decision-making authority into the hands of a neutral third party.  Following this change, “‘[u]nit leaders will still be responsible for setting a proper command climate and still must play a role in preventing and addressing sexual assault, harassment, and other problems . . .’ [but will] no longer be at the forefront of prosecuting sexual assault and other serious crimes for fear that these acts often go unprosecuted by convening authorities.”[8]

Many have openly criticized NDAA 22’s creation of the STC and its removal of command authority over charging decisions in many UCMJ crimes.  Chairman of the Joint Chiefs of Staff General Mark Milley wrote to the Senate Armed Services Committee expressing his view that “removing commanders from prosecution decisions, process and accountability may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead.”[9] Many are confused by the fact that commanders are entrusted with the authority to risk their troops’ lives in combat but not with the military justice charging decisions.[10] Some feel the STC procedures constitute “[p]lauging the justice process with bureaucracy. . . .”[11] Others still are concerned that the lead SEC is still a commissioned officer (an O-7 or higher), leaving doubt whether the STC is sufficiently independent.[12] Because the STC-related changes will not be fully implemented until late 2023, it is too soon to tell whether these concerns will actualize.

Codification of Sexual Harassment

In addition to the implementation of the STC to oversee charging decisions in victim-centric crimes, NDAA 22 also required the codification of sexual harassment as a UCMJ crime. Section 539D(b) of NDAA set out the crime’s elements as follows:

• that the accused knowingly made sexual advances, demands or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature;
• that such conduct was unwelcome;
• that, under the circumstances, such conduct—
• would cause a reasonable person to believe, and a certain person did believe, that submission to such conduct would be made either explicitly or implicitly, a term or condition of that person’s job, pay, career, benefits, or entitlements;
• would cause a reasonable person to believe, and a certain person did believe, that submission to, or rejection of, such conduct would be used as a basis for decisions affecting that person’s job, pay, career, benefits, or entitlements; or
• was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person did perceive, an intimidating, hostile, or offensive working environment; and
• that, under the circumstances, the conduct of the accused was—
• to the prejudice of good order and discipline in the armed forces;
• of a nature to bring discredit upon the armed forces; or
• to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.”

The codification of sexual harassment in the UCMJ marks a monumental step toward addressing sexual violence in the military, but there are still potential problems with its implementation.  First, the STC does not have charging authority in sexual harassment cases, as it is not one of the enumerated offenses under the STC’s control.  This was a required concession to congressional opponents of the military justice changes in NDAA 22 in order to garner enough votes.[13] This concession is particularly alarming when SPC Guillen’s murderer had been previously credibly accused of sexual harassment, which his command declined to charge.[14] Though Army investigators concluded that the murderer’s prior sexual harassment allegations were unrelated to SPC Guillen’s murder, had the allegations been properly handled by his command, SPC Guillen’s death could have been avoided. SPC Guillen’s case stands alone as an argument for the newly-created STC to have purview over charging sexual harassment.

Additionally, commands often still opt to charge sexual harassment cases under Article 92 for Failure to Obey a Lawful Regulation, as sexual harassment was previously governed by Army Command Policy in Army Regulation (AR) 600-20, part 7-7.

Conclusion

Major institutions like the military that have a culture of permissiveness regarding sexual assault and harassment cannot be changed overnight. The aforementioned victim-centric changes mark a step forward in challenging that culture.  Though there are potential problems with a piecemeal approach, as seen in the failure to include sexual harassment under the STC’s authority, incremental steps forward mark progress.  Senator Kirsten Gillibrand (D-NY) has outwardly expressed her view that these changes do not go far enough and has vowed to fight for more.  The next few years following the full implementation of NDAA 22’s measures will be highly instructive for the additional changes necessary to reform military culture around victim-centric crimes.

 

[1] Pub. L. No. 117-81, 135 Stat. 1551 (2021).

[2] Johnny Diaz et al., What to Know About the Death of Vanessa Guillen, N.Y. Times, (Nov. 30, 2022), https://www.nytimes.com/article/vanessa-guillen-fort-hood.html.

[3] Id.

[4] Id.

[5] Col. Michael Lewis, Major Changes in the Uniform Code of Military Justice, American Bar Association, (Oct. 7, 2022), https://www.americanbar.org/groups/judicial/publications/judicial_

division_record_home/2022/vol26-1/major-changes-in-uniform-code-of-military-justice/.

[6] 10 U.S.C. § 824a.

[7] David A Schlueter & Lisa Schenck, Recent Legislative Developments: The 2022 National Defense Authorization Act, 2022 Continuing Legal Education and Training Program of the United States Court of Appeals for the Armed Forces, (July 2022), https://www.armfor.uscourts.gov/ConfHandout/2022ConfHandout/SchenckSchlueterRecentLegisDevelopmentsRR.pdf.

[8] Emma K. Hildebrand, Encroaching on Command Authority: How History Informs the “Military Justice Improvement and Increasing Prevention Act,”48 J. Legis. 390, 405 (2022).

[9] Scott Maucione, Military Leaders Push Back on Taking Crimes Out of Chain of Command, Fed. News Network (June 22, 2021), https://federalnewsnetwork.com/defense-main/2021/06/military-leaders-pushback-on-taking-nonmilitary-crimes-out-of-chain-of-command/.

[10] Cristopher W. Behan, Don’t Tug on Superman’s Cape: In Defense of Convening Authority Selection and Appointment of Court-Martial Panel Members, 176 Mil. L. Rev. 190, 193 (2003).

[11] Hildebrand, supra note 8 at 411.

[12] Kristen M. Stone, The Betrayal of the Red, White, & Blue: The Failures of Institutional Self-Regulation & the Military’s #MeToo Movement, 70 Buff. L. Rev 1183, 1199 (May 2022).

[13] Jennifer Steinhauer, Lawmakers Reach Deal to Overhaul How Military Handles Sexual Assault Cases, N.Y. Times, (Dec. 7, 2021), https://www.nytimes.com/2021/12/07/us/politics/military-sexual-assault-congress.html.

[14] Diaz et al., supra.