M-VETS Community Outreach at a Celebration for Veterans at VFW Post 3103

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The Antonin Scalia Law School Mason Veterans and Servicemembers Legal Clinic (“M-VETS”) attended an outreach event at a “Celebration for Veterans” at the Veterans of Foreign Wars Post 3103 in Fredericksburg, Virginia, on 15 OCT 16.  Student-Advisors Anne Kidd and C.J. Nee represented Scalia Law School and the M-VETS program by providing information to the Veteran attendees and their family members in an effort to increase awareness of the pro bono legal services M-VETS is able to provide to these Veterans and their family members.   M-VETS Director, Timothy M. MacArthur, believes outreach to organizations like the VFW is “essential in providing visibility concerning our program, services and school to this population.  This type of outreach is also valuable to the M-VETS student-advisors as they are able to gain a greater understanding of Veteran and military culture through first-hand experience.”

The event was a “Celebration for Veterans” and was attended by local businesses and State and Federal organizations.  Local businesses provided access to on-site massage therapists, cosmetic services and a free lunch provided by Olive Garden.  M-VETS was joined by the Department of Veterans Affairs mobile Vet Center which provided health screenings to veterans in attendance and Virginia Department of Veterans Services who provided literature regarding benefits for Veterans and their family members.  M-VETS Managing Attorney, Leigh M. Winstead, was in attendance on Saturday and explains “we are very grateful to the organizers of the event and the Fredericksburg VFW for hosting a great day of appreciation for our Veterans.  It was a great opportunity to not only offer our assistance to local Veterans but simply be able to thank so many Veterans in-person for their service.”

M-VETS will continue to conduct outreach and provide information regarding the Scalia Law School to active-duty members of the armed forces, their families, and veterans.  Please keep visiting our webpage to keep updated on future events.

M-VETS files Amicus Curiae brief to the U.S. Supreme Court on behalf of veterans seeking redress in medical malpractice claims against the Department of Veterans Affairs.

The Antonin Scalia Law School Mason Veterans and Servicemembers Legal Clinic (“M-VETS”) filed an Amicus Curiae brief together with the Baylor Law School Veterans’ Assistance Clinic (“Baylor Clinic”) in an effort to increase available avenues of justice for veterans seeking redress in medical malpractice claims against the Department of Veterans Affairs’ (“VA”).

M-VETS and the Baylor Clinic filed the brief in support of the petitioner in Milbauer v. United States of America, which is on petition for writ of certiorari before the United States Supreme Court.  The case will resolve a split among the United States Circuit Courts as to whether the Veterans’ Judicial Review Act (“VJRA”) bars federal districts courts from hearing VA medical negligence suits arising under the Federal Tort Claims Act (“FTCA”).

The Petitioner, Richard Milbauer, brought suit against the VA after the failure of VA physicians to recommend and perform alternative diagnostic procedures rendered a treatable shoulder injury permanent.   The Eleventh Circuit held that the federal courts lacked jurisdiction over Milbauer’s claim based on a broad reading of the VJRA’s prohibition on judicial review of any VA decision affecting “the provision of benefits” to veterans.

“This issue is extremely important to our military veterans seeking redress in cases of medical negligence against the VA,” Leigh Winstead, M-VETS staff attorney said. “The split among the Circuits creates uncertainty for veterans who have been harmed by the decisions of VA medical staff and desire to pursue damages under the FTCA.”  Winstead said.  “It is imperative that the Supreme Court clarify the confines of the VJRA’s jurisdictional bar to ensure that appropriate legal remedies are available to our veterans.”

M-VETS and the Baylor Clinic were represented by the international law firm of Reed Smith LLP in filing the brief. Both clinics provide active-duty members of the armed forces, their families, and veterans with free legal representation in matters of clear injustice or where they cannot retain counsel without undue hardship.  See link below for the U.S. Supreme Court filing.

milbauer-v-united-states-of-america-m-vets

M-VETS Student Advisors Experience as a Legal Assistant with the Fairfax County Veterans Treatment Docket

M-VETS Student Advisor Mr. Jeremy Glenn recently completed independent study as a judicial extern for the Honorable Michael J. Lindner and acted as a legal assistant for the Fairfax County Veterans Treatment Docket.

In his independent study written submission to Professor Michael L. Davis, Mr. Glenn outlines his impressions of the valuable services provided by the Fairfax VTD, as well as, the dedication and commitment of the VTD team.  Further, Mr. Glenn provides a brief history of the background, purposes behind, and the unique constitutional issues pertaining to veterans treatment courts.   Bravo Zulu Jeremy!

Glenn_Veterans Courts paper_final

MVETS, DAV, and American Legion Host Veterans Benefit Fair

On Saturday March 14, 2015, the George Mason University School of Law Veterans and Servicemembers Legal Clinic, Disabled American Veterans Chapter 10, and American Legion Post 177, are joining forces to host an Information Seminar and Veterans Benefits Fair at Founder’s Hall on the George Mason University Arlington Campus, 3351 N. Fairfax Drive, Arlington, VA 22201.

At 10:00 am, Disabled American Veterans National Service Officers will provide a Benefits Information Seminar covering topics of Service Connection, Compensation, and other entitlements.  After the seminar, there will be representatives from many Veterans Service organizations, Community Groups, eBenefits, and the VA Medical Center available for networking and providing information on services and assistance. Local and regional organizations will also be present to provide information to Veterans, Servicemembers, and their families.

If you are a Veteran, Servicemember, or Military Family in need of assistance, please bring your pertinent VA information.  If you know of any Veterans, Servicemembers, or Military Families in need of help please send them to the event. The Point of Contact for Veterans is one of the DAV Chapters listed below. The Point of Contact for Organizations, sponsors, and interested parties is the Veterans and Servicemembers Legal Clinic.

For more information or to reserve presentation space, please email gvanpelt@masonlive.gmu.edu.

Contacts for Veterans:

Roanoke DAV NSO Office at 540-597-1731

Baltimore DAV NSO Office at 410-230-4440

Washington DC DAV NSO Office at 202-530-9260

Contacts for Service Organizations, Sponsors, or other Interested Parties:

Veterans and Servicemembers Legal Clinic at 703-993-8214

Sexual Assault, the Military, and Victim Resources

By: Allison Walsh, CLASV Student Advisor Spring 2014

Sexual assault is a serious crime that has recently pervaded the media, particularly in regard to the military services.  “The Pentagon estimates that 26,000 troops were assaulted or raped [in 2012].  But only a fraction of them, about 3,300, filed reports with military police or prosecutors in that time period.”[1]  The total number of active duty military personnel in December 2012 was 1,385,055.  Taking just the Active component alone, this would be approximately 1.88% of the military are victims of sexual assault or rape.[2]  While this may seem like a small percentage of victims, the crime of sexual assault affects their life, their participation in society, and their relationships, such that the people close to them become affected as well.  Within the military, these effects are particularly important because the organization is tight-knit and responsible to their fellow wingmen, soldiers, sailors, and marines.  The military has had difficulties in the laws and regulations regarding sexual assault.  Indeed, it still struggles in areas such as veterans benefits[3] and legal reform.[4]  However, the military social awareness and training on the topic of sexual assault and sexual harassment has changed dramatically, as demonstrated through the press, White House responses, and changing policies regarding sexual crimes within the Department of Defense itself.[5]

This blog will not only provide legal definitions of these crimes, but also several resources and recourses that victim, their coworkers, and their friends and families can utilize to empower the survivor of the unwanted sexual contact or harassment and help educate others to prevent sexual assault or harassment. If you are a victim or a concerned friend, family member, or coworker, please feel free to use the sections for information and access to resources.  The sections are as follows: (A) Definitions; (B) Reporting Sexual Offenses: Restricted vs. Unrestricted Reporting and Statutes of Limitations on Sexual Crimes; (C) The Department of Veterans Affairs: Free Counseling and Disability Compensation; (D) Giving Sexual Assault Survivors a Voice: Resources, Helplines, and Agencies.

A. Definitions

Under the Uniform Code of Military Justice (UCMJ), sexual assault is defined as “any person…who commits a sexual act upon another person by (A) threatening or placing that other person in fear; (B) causing bodily harm to that other person; (C) making a fraudulent representation that the sexual act serves a professional purpose; or (D) inducing a belief by any artifice, pretense, or concealment that the person is another person; or [who] commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; or [who] commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to (A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or (B) a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person.”[6]  The UCMJ defines rape separately.

Sexual assault is connected to the consent that a person gives for sexual conduct.  The UCMJ defines consent as “a freely given agreement…by a competent person.”[7]  A lack of consenting words (saying yes) or conduct means there is no consent.[8]  A lack of verbal or physical resistance or a submission to the sexual conduct does not constitute consent.[9]  Sleeping, unconscious, or incompetent people cannot give consent; likewise, a previous or current relationship with that person does not constitute consent.[10]  Consent is never produced from fear, force, or bodily harm.[11]  Consent must be given for every sexual act.

The federal law pertaining to veterans benefits defines sexual harassment as “repeated, unsolicited verbal or physical contact of a sexual nature which is threatening in character.”[12]  The Department of Veterans Affairs (VA) further defines a result of sexual assault as “Military Sexual Trauma,” which is “psychological trauma…resulting from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the Veteran was serving on active duty or active duty for training.”[13]

These definitions are important to know because of the legal recourse and medical assistance that a survivor can access.  The legal rights that victims have access to are, notably, “the right to be reasonably protected from the offender, the right to be notified of and be present at court-martial proceedings, the right to confer with the Government attorney (prosecutor), and the right to available restitution.”[14]  Services for victims include “law enforcement personnel, criminal investigators, chaplains, family advocacy personnel, family service center personnel, equal opportunity personnel, judge advocates, and unit commanding officers.”[15]

B. Reporting Sexual Offenses: Restricted vs. Unrestricted Reporting and Statutes of Limitations on Sexual Crimes

The amount of resources and options can seem overwhelming to a victim of such a traumatic experience.  The military has implemented two different types of reporting to help ease the discomfort or nervousness a survivor may feel in this situation.  Restricted reporting “is recommended for victims of sexual assault who wish to confidentially disclose the crime to specifically identified individuals and receive medical treatment and counseling without triggering the official investigative process.”[16]  These specific individuals are a Sexual Assault Response Coordinator (SARC), Victim Advocate, or a healthcare provider.  Chaplains are not a part of this restricted reporting, but the communication “may [emphasis added] be protected under the Military Rules of Evidence or applicable statutes and regulations.”[17]  Unrestricted reporting “is recommended for victims of sexual assault who desire medical treatment, counseling, and an official investigation of the crime.”[18]  The victim should report the crime to the chain of command, law enforcement, the SARC (which would specifically request for unrestricted reporting), or healthcare providers that are requested to notify law enforcement.[19]  A Victim Advocate will routinely check on the survivor as needed to ensure continued victim support.[20]

For more detailed information on restricted and unrestricted reporting, the processes involved, and who is eligible for restricted and unrestricted reporting, please visit: http://www.preventsexualassault.army.mil/policy_restricted_unrestricted_reporting.cfm.

The National Defense Authorization Act for Fiscal Year 2014 (PL 113-66 (2013)) eliminated the statute of limitations on trial by court-martial for additional offenses involving sex crimes.  Sexual assault crimes currently do not have a statute of limitations, which would limit when a prosecutor could pursue a court-martial action against a perpetrator.

C.  The Department of Veterans Affairs: Free Counseling and Disability Compensation

The Department of Veterans Affairs recognizes that servicemembers, men and women alike, can experience sexual misconduct during their service that results military sexual trauma.[21]  Military sexual trauma, as explained previously, is the psychological result of sexual trauma.  Several indicators are strong emotions, depression, trouble sleeping, difficulty with attention, concentration, and memory, problems with alcohol or other drugs, difficulties in relationships, and physical health problems.[22]   In addition to seeking support from a doctor or counselor, there are some basic lifestyle changes for the individual seeking help for military sexual trauma, such as recognizing triggers, taking up a new hobby, and talking to others.[23]  A full list of suggestions can be found here: http://maketheconnection.net/conditions/military-sexual-trauma#3Anonymous health screenings can provide the initial step in assessing whether you are experiencing PTSD or military sexual trauma, and are available here: https://www.militarymentalhealth.org/PTSDScreen.

The VA provides free services for those who have military sexual trauma, which do not require any VA disability rating or a service connection to receive these services.  The victim did not have to report the incidents when they happened or have other documentation that they occurred.  There is also no time limit or salary cap for care eligibility.[24]

A veteran can receive disability compensation from the VA for post-traumatic stress disorder or other mental health diagnoses resulting from military sexual trauma.  The VA recognizes that many sexual assaults do not have immediate reporting or evidence; therefore, the VA assessment includes, but is not limited to, the following factors: “records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; statements form family members, roommates, fellow Servicemembers, clergy members, or counselors; request for transfer to another military duty assignment; deterioration in work performance; episodes of depression, panic attacks, or anxiety without an identifiable cause…”[25]  More factors and access to a disability compensation application can be found here: http://www.benefits.va.gov/BENEFITS/factsheets/serviceconnected/MST.pdf.

D.  Giving Sexual Assault Survivors a Voice: Resources, Helplines, and Agencies

If you, a coworker, or a loved one has experienced sexual assault or harassment, the following resources for military and veterans are listed below.  Sexual assault does not just affect victims; it affects their relationships with others, including those closest to the survivors.  These resources are for veterans, their friends and families, and their coworkers.

  • DoD Safe Helpline allows for anonymous support for sexual assault survivors in the military.  It also provides information on what to do if you or someone you know has been sexually assaulted.  https://www.safehelpline.org/
  • Rape, Abuse & Incest National Network (RAINN) provides a National Sexual Assault Hotline, which connects you to the nearest rape crisis center, at 1-800-656-HOPE (4673).  It also provides information for victims and their friends and family at its interactive website: http://www.rainn.org/.
  • Military One Source compiled each service branch’s sexual assault prevention and response centers can be found here: http://www.militaryonesource.mil/sexual-assault.
  • The National Resource Directory is dedicated to connecting Wounded Warriors, Servicemembers, Veterans, their families, and caregivers with other supporting organizations.  Their compilation of service branch programs, and programs for National Guard and Reserve, and programs for women can be accessed here: https://www.nrd.gov/health/sexual_assault.
  • Make the Connection. For an overview of military sexual trauma, resources, and an explanation of treatment available and VA services, please visit: http://maketheconnection.net/conditions/military-sexual-trauma#3.
  • Department of Veterans Affairs. The VA website for military sexual trauma is: http://www.mentalhealth.va.gov/msthome.asp
  • Veterans Centers. Find the Veteran’s Center closest to you: http://www2.va.gov/directory/guide/home.asp?isflash=1
  • National Sexual Violence Resource Center. More national organizations have been compiled by the National Sexual Violence Resource Center for victims and survivor support organizations: http://www.nsvrc.org/organizations
  • Department of Justice. Sexual assault resources from the Department of Justice: http://www.ovw.usdoj.gov/sexassault.htm
  • Colleges and Universities. Many colleges and universities provide students with sexual assault hotlines and resources, usually free of charge.  An example of this would be Campus Advocates Respond and Educate (CARE) to Stop Violence at University of Maryland: http://www.health.umd.edu/care.

 

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia, and are not to be construed as legal advice.  The contents of this website are intended to convey general information only and not to provide legal advice or opinions. The contents of this website, and the posting and viewing of the information on this website, should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. The information presented on this website may not reflect the most current legal developments. An attorney should be contacted for advice on specific legal issues.

 

 

 

 

 


[1] Ed O’Keefe, “Congress Approves Reforms to Address Sexual Assault, Rape in Military,” The Washington Post, Dec. 19, 2014, http://www.washingtonpost.com/politics/congress-poised-to-approve-reforms-to-address-sexual-assault-rape-in-military/2013/12/19/bbd34afa-68c9-11e3-a0b9-249bbb34602c_story.html.

 

[2] Given that the 26,000 number may include Guard and Reserve, the percentage may be less.  “Active Duty Military Personnel by Service by Rank/Grade: December 2012,”  Defense Manpower Data Center, available at https://www.dmdc.osd.mil/appj/dwp/reports.do?category=reports&subCat=milActDutReg.

 

[3] “New Report Finds VA Discriminates Against Military Sexual Assault Survivors,” American Civil Liberties Union, Nov. 7, 2013, available at https://www.aclu.org/womens-rights/new-report-finds-va-discriminates-against-military-sexual-assault-survivors (citing a study finding that women who petition for disability benefits for PTSD related to military sexual trauma receive significantly lower rates from the VA than claims for PTSD unrelated to military sexual trauma between the years 2008 to 2012).

 

[4] See generally, R. Chuck Mason, Sexual Assaults Under the Uniform Code of Military Justice (UCMJ): Selected Legislative Proposals, Congressional Research Service (2013), https://www.fas.org/sgp/crs/natsec/R43213.pdf.

 

[5]  For a list of these policies, directives, and initiatives, please visit: http://www.sapr.mil/; see also, http://www.sapr.mil/public/docs/news/SECDEF_Memo_SAPR_Initiatives_20130814.pdf.

 

[6] 10 U.S.C. § 920.

 

[7] 10 U.S.C. § 920(8)(A)-(C).

 

[8] Id.

 

[9] Id.

 

[10] Id.

 

[11] Id.

 

[12] 38 U.S.C. § 1720D.

 

[13]  “Disability Compensation for Personal Assault or Military Sexual Trauma,” Dep’t of Veterans Affairs (2012), available at http://www.benefits.va.gov/BENEFITS/factsheets/serviceconnected/MST.pdf.

 

[14] “DOD Victim and Witness Assistance Programs,” Dep’t of Defense, available at http://vwac.defense.gov/dodprograms.aspx.

 

[15] Id.

 

[16] “Reporting Options: Restricted/Unrestricted Reporting,” U.S. Army, available at  http://www.preventsexualassault.army.mil/policy_restricted_unrestricted_reporting.cfm.

 

[17] Id.

[18] Id.

 

[19] Id.

 

[20] Id.

 

[21] “Military Sexual Trauma,” Dep’t of Veterans Affairs (2012), http://www.mentalhealth.va.gov/docs/MST-BrochureforVeterans.pdf.

 

[22] Id.

 

[23] “Effects of Military Sexual Trauma,” Make the Connection (2014),  http://maketheconnection.net/conditions/military-sexual-trauma#3.

 

[24] “Military Sexual Trauma,” Dep’t of Veterans Affairs (2012), http://www.mentalhealth.va.gov/docs/MST-BrochureforVeterans.pdf.

 

[25] “Disability Compensation for Personal Assault or Military Sexual Trauma,” Dep’t of Veterans Affairs (2012), available at http://www.benefits.va.gov/BENEFITS/factsheets/serviceconnected/MST.pdf.

Sexual Assault in the Military

By Eric Cheung- Spring 2014 CLASV Student Advisor

The military is said to be regimented, structured, and orderly to help mold individuals to follow commands instinctively.   This system is instilled in the very beginning of an individual’s military career.  The military provides a methodically planned schedule for all their recruits.  Each detail is laid out for a recruit – their schedule is broken down by every hour for the next 16 weeks.  The recruits only have access to their immediate chain of command.  They are in close proximity to their supervisors who mandate the utmost respect to all senior superiors.  This facet has been the issue of debate when viewing sexual assaults in the military.

The proponents of revising military law argue that sexual assaults are a growing issue.  According to the Associated Press, “the Pentagon estimated that 26,000 military members may have been assaulted in 2012. But many victims are still unwilling to come forward. “[1] The more daunting fact is the fact that there are several unreported sexual assaults because victims are afraid to come forward.  These victims are fearful because the ones abusing them may be in their direct chain of command.  They are left powerless since the very person they are supposed to file a complaint with is the perpetrator.

There has been proposed legislation to address this conundrum.  In early March 2014, the Senate voted on a bill which would remove military commanders from deciding whether or not to prosecute allegations of wrongdoings by their subordinates.  The opponents to this bill stated that this bill would undermine military authority within the chain of command.  Ultimately, this bill did not pass with a vote of 55 to 45.[2]

The issue of sexual assaults in the military has received more public attention.  In response, on March 10, 2014, the Senate unanimously passed a bill that would prevent an individual from using the “good soldier defense”.  The good soldier defense is allowing a soldier to include in the evidence his military record of “reliability, dependability, professionalism and reputation as an individual who could be counted on in war and peacetime.”[3]  Importantly, this reform would give accusers greater freedom to choose a civilian court over a military court.  This reform is a step in the right direction to prevent sexual assaults in the military.

The tides have steadily been turning to pinpoint the cause of sexual assaults in the military.  It is still a very large issue that is prevalent in all branches and among all ranks.  There are several resources that can provide assistance if necessary.

The Department of Defense has initiated the Safe Helpline specifically for Sexual Assault support:

https://www.safehelpline.org/

They can also be securely and anonymously contacted at 877-995-5247 (operated 24/7)

For more information about sexual assault in the military, visit Military OneSource: http://www.militaryonesource.mil/sexual-assault


[1] http://abcnews.go.com/Politics/wireStory/senate-bill-combat-military-sexual-assaults-22850057?page=2

[2] http://www.cnn.com/2014/03/06/politics/military-sex-assault/

[3] http://abcnews.go.com/Politics/wireStory/senate-bill-combat-military-sexual-assaults-22850057

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia, and are not to be construed as legal advice.  The contents of this website are intended to convey general information only and not to provide legal advice or opinions. The contents of this website, and the posting and viewing of the information on this website, should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. The information presented on this website may not reflect the most current legal developments. An attorney should be contacted for advice on specific legal issues.

How to Claim VA Benefits Without a Discharge Upgrade: Character of Service Determinations

By Kevin Hill, Spring 2014 CLASV Student Advisor

If you were discharged from active duty with a less than fully Honorable military discharge, you have what is called “bad paper.”  Any discharge of less than an Honorable may have implications upon health care and educational benefits once transitioning from combat to community life. Discharge under other than Honorable conditions and Bad Conduct discharges do not automatically disqualify a veteran or his or her dependents from receiving VA benefits.[1] For example, if your discharge was General (under Honorable Conditions), you may be eligible for VA benefits.  But what about if you have a discharge that is neither General (under Honorable Conditions) nor Honorable?

Options for Veterans

Veterans may seek a discharge upgrade through their branch of service’s Discharge Review Board (DRB).  The DRB has the discretion to amend the reason for discharge if an application is filed within a period of fifteen years after the discharge.[2]  However, the DRB is limited because the board is not authorized to amend a Bad Conduct Discharge or Dishonorable Discharge issued from a general court-martial. The DRB is also restricted from changing the re-enlistment code on a veteran’s DD-214 form.[3] Although the reward for a successful discharge is invaluable, the success rate for discharge upgrade applications across the service branches is rather low.[4]

Veterans may also appeal errors in military records to the appropriate branch’s Board for Correction of Military/Naval Records (BCMR).  The BCMR for each branch of service has the authority to change, delete, modify, or add to one’s military record in cases of error.[5]  However, like the DRBs, the BDMRs are not authorized to review discharges which were a part of a general court-martial conviction. Both the discharge upgrades and requests to have military records corrected have implications on VA benefits, but are not processed by the VA.[6]

Veterans who may have been discharged for other than Honorable conditions have a third option to seek benefits under a process known as a Character of Service Determination. Character of Service Determinations are often processed more quickly than discharge upgrade applications and result in favorable rulings in a higher percentage of cases.[7] If the Department of Veterans Affairs rules in the claimant’s favor, the veteran will still have bad paper, but will be eligible for VA benefits such as disability compensation, pension, and health care.[8]

Character of Service Determinations

A Character of Service Determination is a fact-specific inquiry performed by benefits claims examiners at one of the fifty-six regional VA offices.[9]  During this process, the VA regional office reviews the veteran’s entire period of enlistment to assess the quality of service as potentially deserving of an award of veterans’ benefits.[10] Character of Service Determinations can be helpful for veterans with back-to-back enlistments and conditional discharges.[11] For example, the VA will consider claims of exceptional service in a first enlistment that should not be overshadowed by less significant bad acts in a subsequent enlistment leading to an undesirable discharge. In such a case, the VA would weigh the service member’s years of credible service against the discreditable act that lead to an undesirable discharge.[12]

A Character of Service Determination commences when a veteran applies for VA disability compensation or pension at a regional VA office.[13] The VA responds to these applications by requesting that the veteran submit information in support of the request for a favorable Character of Service Determination.[14]  Any adverse decisions by the regional office may be appealed to the U.S. Court of Appeals for Veterans Claims.[15]

Standards for Review

VA Claims examiners look to the M21-1MR Manual for guidance in determining what benefits a veteran should receive for a Character of Service Determination.[16] Because the VA is a separate entitiy from the Department of Defense, the VA is not bound by the initial disability rating given by a service branch specifically for medical discharge cases.[17]  However, the VA will also not review bad conduct or dishonorable discharges given as part of a general court-martial.[18] Some veterans are barred for particular reasons as listed in the Federal Code of Regulations.[19]  Some reasons that make veterans ineligible for a favorable outcome are:

  1. Veterans who accepted an undesirable discharge to avoid a court-martial,
  2. Veterans who were mutineers or spies,
  3. Veterans discharged for an offense involving moral turpitude, including, generally, a felony conviction,
  4. Veterans discharged for willful and persistent misconduct,
  5. Veterans discharged for “homosexual acts involving aggravating circumstances,” such as molestation, prostitution, assault, or coercion.[20]

Conclusion

For veterans with bad paper, a VA Character of Service Determination serves as an alternative to a discharge upgrade or correction of military records. In most Character of Service Determination cases, veterans should prepare necessary documentation or evidence to support his or her claim.  Because the Department of Veterans Affairs operates separately from the Department of Defense, veterans considering a Character of Service Determination should first request copies of all military medical and administrative records from the branch of service.[21] Prior to filing, veterans can obtain references from commanding officers, investigate the home of record addresses for potential witnesses, and obtain documents such as an Official Military Personnel File (OMPF) or transcripts from any past court-martials.[22] Veterans should also consult with an attorney if possible to ensure legal compliance with any application guidelines.

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia, and are not to be construed as legal advice.  The contents of this website are intended to convey general information only and not to provide legal advice or opinions. The contents of this website, and the posting and viewing of the information on this website, should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. The information presented on this website may not reflect the most current legal developments. An attorney should be contacted for advice on specific legal issues.

 


[1] Major Samuel M. Morris, A Survey of Military Retirement Benefits, 177 Mil. L. Rev. 133, 139-41 (2003).

[2] Tom Turcotte, Basics of Dscharge Upgrading, Military Law Task Force, at 1; see also Kathleen Gilberd, Discharge Upgrading—An Outline For Beginners, Military Law Task Force, available at www.dd214.us/reference/DischargeUpgrade_Memo.pdf‎ (last visited Mar. 5, 2014).

[3] Id.

[4] Teresa Panepinto, Good Paper Challenging the Narrative Reason for a Discharge Requires Considerable Patience and Paperwork, L.A. Law., November 2012, at 43, 47.

[5] Turcott, supra note 2, at 2.

[6] VA Character of Service Determinations: An Alternative to Discharge Review, Swords to Plowshares Self-Help Materials, at 1, available at http://www.swords-to-plowshares.org/2012/09/27/va-character-of-service-determination-an-alternative-to-discharge-review/ (last visited Mar. 5, 2014); see also Getting a VA Character of Service Determination, Nolo.com, available at http://www.nolo.com/legal-encyclopedia/getting-va-character-service-determination.html (last visited Mar. 5, 2014).

[7] Id.

[8] Id.

[9] Note that this number may have changed since posting.  Available at http://www.vba.va.gov/reports/aspiremap.asp (last visited Mar. 5, 2014).

[10] U.S. Veterans’ Administration, VA Adjudication Procedure Manual M21-1, pt. IV, ¶ 11.01-11.06; see also Umar Moulta-Ali, “Who is a Veteran?” Basic Eligibility for Veterans’ Benefits, Congressional Research Service at 4. (January 2014).

[11] Back-to-Back and Conditional Discharges, Swords to Plowshares Self-Help Materials, at 1, available at http://www.swords-to-plowshares.org/2012/09/27/back-to-back-and-conditional-discharges/ (last visited Mar. 5, 2014).

[12] Swords to Plowshares, supra note 6, at 2.

[13] Id.

[14] Id.

[15] Morris, supra note 1, at 139; see also Turcotte, supra note 2, at 4.

[16] See M21-1MR Compensation and Pension Manual, U.S. Department of Veterans Affairs, available at http://www.benefits.va.gov/warms/M21_1MR.asp (last visited Mar. 4, 2014).

[17] Turcotte, supra note 2, at 1.

[18] Tom Turcotte, VA Claims: An Overview, On Watch: Military Law Task Force, at 3 (Vol. XIX, No. 5 (Sept/Oct 2007), available at nlgmltf.org/wp/downloads/onwatch/Onwatch_xix-5.pdf (last visited Mar. 4, 2014).

[19] See 38 C.F.R. §3.12.

[20] 38 C.F.R. §3.12(d)

[21] Turcotte, supra note 2, at 1.

[22] Turcotte, supra note 2, at 1; see also Swords to Plowshares, supra note 6, at 2.

Getting Your Legal Affairs in Order Before You Deploy

By Michelle Caton ’13, Fall 2013 CLASV Student Advisor

Preparing for a deployment involves a seemingly endless stream of paperwork, meetings, and decisions. In the hectic weeks prior to departing, it can be easy to overlook some important actions that you can do to make life for yourself and your family a little simpler while you are gone. Here are a few steps you can take to help avoid some major headaches while you are deployed.

1. EXECUTE A POWER OF ATTORNEY.

In the event that something happens while you are away, another adult may need to act on your behalf. A power of attorney (POA) allows you to select an individual that you trust to act as your agent. There are several types of powers of attorney, each conveying different authorities to the person whom you select:

  • A general POA gives your agent broad legal authority to handle your personal and financial affairs. Because of the wide discretion that a general POA gives to your agent, the term of a general POA is often limited to the duration of a deployment or some other length of time.
  • A special or limited POA grants only certain, specified authority to your agent. You may choose to execute multiple special POAs instead of one general POA based on your personal needs and preferences.
  • A medical POA permits your agent to make medical decisions on your behalf in the event that you become unable to do so due to physical or mental incapacity.

A spouse, other family member, or friend can act as your agent during the deployment. Talk to the person whom you would like to be your agent about your intent to make sure that he or she understands his or her role and are willing to undertake it; then speak with your base legal counsel to determine which type of POA best suits your needs. The legal office can draft your POA and notarize it upon your signing so that it takes effect.

2. CREATE A WILL.

Although many people believe that they don’t need a will, it is generally not a good idea to rely on the default rules that the law provides for your estate, especially if you are married or have children. A will allows you to select a legal guardian for your children, designate specific property to be transferred to certain people, and determine how your property should be divided in the event of your passing. Your base legal office can provide you with guidance specific to your own situation to create a will that works for you. If you already have a will in effect, review it prior to deploying to make sure that it reflects your current state of affairs.

A living will is a different type of will that allows you to direct what actions your family and medical providers should take if you are placed on life support or are otherwise unable to communicate your own desires due to a life-threatening medical condition. It allows you to proactively determine what type of medical treatment and life-sustaining measures that you are willing to receive or do not want. Consider creating a living will to ease the burden of decision-making on your family if you are seriously injured while deployed.

3. UPDATE YOUR INSURANCE.

Before you leave, take time to review your insurance policies, including any SGLI coverage, to ensure that all of your assets and family members are covered. Talk to your insurer(s) about adjusting your coverage during the deployment if necessary. Confirm that any policy beneficiary information is up-to-date and accurate.

4. PROVIDE ACCESS TO DOCUMENTATION.

Even the best-prepared documents won’t be of much use if your spouse or agent can’t find them. Obtain copies of all important documentation that may be needed in your absence—marriage licenses, birth certificates, naturalization paperwork, insurance policies, court orders, social security cards, tax returns, vehicle registration, mortgages or leases, wills, POAs, and anything else—and designate a secure location in which they will be kept. Let the appropriate people know where these documents are and how to gain access to them. Don’t forget to include any passcodes, PIN numbers, or login information that may be needed to access files electronically.

While these are just a few of the steps you can take to be better prepared for deploying, they can ease some of the stress that you and your family will face while you are deployed. Base legal offices also offer pre-deployment checklists and advisory services to assist you in making sure that your affairs are in order before you leave. Although it is never easy to consider the many uncertainties a deployment presents, being well prepared for the unknown will help you and your family overcome whatever challenges arise in your absence.

References & Resources

ABA Pre-Deployment Checklist: http://www.americanbar.org/content/dam/aba/migrated/legalservices/helpreservists/forms/checklist.authcheckdam.pdf

A Pre-Deployment Checklist for Military Families: http://www.militaryconnection.com/articles%5Cfinance%5Cpredeployment-checklist.asp

Military.com Pre-Deployment Checklist: http://www.military.com/spouse/military-deployment/dealing-with-deployment/predeployment-checklist.html

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia, and are not to be construed as legal advice.  The contents of this website are intended to convey general information only and not to provide legal advice or opinions. The contents of this website, and the posting and viewing of the information on this website, should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. The information presented on this website may not reflect the most current legal developments. An attorney should be contacted for advice on specific legal issues.

Security Clearance Considerations when Leaving Military Service

By: Garrett VanPelt, CLASV Student Advisor Summer 2013

Many servicemembers receive security clearances during their military service and these clearances can be a distinct advantage when transferring into the civilian workforce.  The high cost of obtaining a fresh security clearance is a large incentive for employers to hire servicemembers with current clearance investigations; however, servicemembers may not be aware of the regulations surrounding their clearances and how to ensure that they can leverage their clearances to obtain civilian employment.

Clearances remain in effect for as long as cleared individuals remain employed in a position that requires access to classified information and they comply with Periodic Reinvestigation requirements.  The period for reinvestigation is determined by the level of the clearance: Top secret clearance or access to a highly sensitive program require reinvestigation every 5 years, secret clearance is every 10 years, and confidential clearance is every 15 years.[1]

Clearances will be terminated when the individual permanently leaves the position for which the clearance was granted.  At this point, the individual no longer has an “active” clearance; however, clearances can be reinstated as long as the underlying Personnel Security Investigation (“PSI”) is still current and there has not been a break-in-service of 2 years or more.  The clearance can be reinstated without the individual submitting a new SF-86; however, for clearances involving special access authorizations a new SF-86 can be required if the break-in-service is more than 6 months or a polygraph is required.  PSIs remain current for 5 years for top secret clearances, 10 years for secret clearances, and 15 years for confidential clearances.

PSIs are reciprocal among government agencies.  An investigation performed by the DoD will be accepted by other agencies, although different agencies may have different requirements for clearances.  Agencies may not perform another investigation where a current investigation or clearance of equal level exists; however, the head of an agency may disallow reciprocity on a case-by-case basis.[2]

When preparing to leave service, there are some items that the servicemember should consider.  Be sure to obtain a copy of the latest SF86 and PSI.  These can be obtained through the E-QIP website.[3]  If the servicemember does not have an active clearance, but has a current PSI they should indicate that they have an “inactive clearance” on their resume and include their periodic reinvestigation date.  If their PSI has lapsed the servicemember should indicate that they are “Clearable.”  A second investigation should not take as long as the original investigation, depending on the length of the lapse.[4]


[1]                  50 U.S.C.A. 435b (a)(7)

[2]                  50 U.S.C.A. 435b (d)

[3]    http://www.opm.gov/investigations/e-qip-application/

[4]    http://www.military.com/veteran-jobs/security-clearance-jobs/inactive-or-lapsed-security-clearance.html

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.