Why Veterans Cannot Sue the Government

By Fall 2017 M-VETS Student-Advisor Emma Devaney

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

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

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

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

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

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

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

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

[2] 28 U.S.C. § 2674

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

[4] Id.

[5] Id. at 136.

[6] Id. at 143-144.

[7] Id. at 139.

[8] Id. at 142-144.

[9] Id. at 139.

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

[11] Id. at 216-217.

[12] Id. at 217.

[13] Id. 227.

[14] Id.

[15] Id.

 

PTSD and the Link to Obesity

By Fall 2017 M-VETS Student-Advisor Bonnie Kelly

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

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

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

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

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

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

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

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

[2] Id.

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

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

[5] Id.

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

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

[8] Women with PTSD, supra note 6.

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

[10] Kubansky supra note 7.

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

[12] Id.

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

[14] Kubansky supra note 7.

[15] Maguen supra note 3.

Can POTUS, in his Capacity as Commander in Chief, Change Military Policy Via Twitter?

By Summer 2017 M-VETS Student-Advisor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[6] Id.

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

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

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

National Memorial to Honor Legacy of Native American Military Service

By Spring 2017 M-VETS Student-Advisor Monica Martinez

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

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

Commitment to Military Service

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

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

Overview of Native American Military Service

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

 Ira Hayes – Iwo Jima Flag Raiser

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

Early Wars (before World War I)

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

 World War I

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

World War II

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

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

Korean War

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

Vietnam War

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

Post-Vietnam Era

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

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

Challenges Facing Native American Veterans

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

Federal Benefits for Native American Populations

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

I. Veterans Service Organizations

 

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

II.  VA Direct Home Loan Program

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

III. HUD Supportive Housing Program

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

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

Patriot Nations

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

 

 

 

The Veterans Choice Improvement Act: An Overview of the changes to the program to extend the program through 2017

 

By Spring 2017 M-VETS Student-Advisor Larry Lohmann

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

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

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

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

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

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

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

Important Highlights made by the VA

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

Sources

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

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

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

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

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

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.