JURIST Guest Columnist Raymond J. Toney of the Law Offices of Raymond J. Toney discusses the case for Amnesty for soldiers with PTSD who received other than honorable discharges…

The wars in Iraq and Afghanistan saw the participation of more than two million American service members. Over 6,500 died and more than 50,000 were wounded [PDF]. Those statistics do not include the tens of thousands more who suffer from Post-Traumatic Stress Disorder (PTSD), a disorder characterized by behavior changes, sometimes extreme. Common manifestations of the condition include aggression, impulsivity, hyper-vigilance and substance abuse. The VA estimates that up to 18 percent of Iraq and Afghanistan veterans suffer from PTSD. The American Journal of Public Health reported findings that 39 percent of returning veterans abuse alcohol. Many, undoubtedly, if not most, are self-medicating, a recipe for disaster. Alcohol abuse is strongly correlated with criminal conduct.

Studies indicate that more than 100,000 veterans have been discharged from the military since 2001 with highly prejudicial service characterizations of “Under Other Than Honorable Conditions” (OTH), typically for “commission of a serious offense” or a “pattern of misconduct” while in uniform. It is unknown how many of those veterans suffer from PTSD or whether the condition influenced the behavior that resulted in their discharge. Scientific studies
 [PDF] and anecdotal evidence, however, demonstrate a strong correlation between untreated or under treated PTSD and misconduct discharges.

The cost to veterans of an OTH discharge is exceptionally high. Those who received an OTH discharge are generally barred [PDF] from receiving VA benefits such as medical care and disability compensation and lose access to generous benefits under the GI Bill and other federal law provisions. An OTH discharge also can be a serious barrier to meaningful employment.

The Army now acknowledges that misconduct may be the product of psychiatric injury. As noted in Army Field Manual 6-22.5, “Combat and Operational Stress Control Manual for Leaders and Soldiers:”

Although war affects all soldiers, most make a successful transition home after combat duty. Some soldiers, however, experience persistent symptoms such as sleep disturbance, hyper vigilance, detachment, anger or risky behaviors such as alcohol misuse or aggression. These problems can seriously affect their military duty and Family functioning if not addressed early.

A 2012 report [PDF] of the Army, “Army 2020: Generating Health and Discipline in the Force Ahead of the Strategic Reset,” recognizes that:

One of the most important lessons the Army has learned is that many health and disciplinary issues, ranging from post traumatic stress (PTS) to illicit drug use to suicide, are interrelated. To view soldier misconduct in isolation, for example, fails to capture the real likelihood that the misconduct was related to an untreated physical or behavioral health condition, such as increased aggression associated with PTSD or depression.

Special “veterans courts,” a growing response to crimes committed by veterans suffering from PTSD and its correlates, such as alcohol and drug abuse, also recognize the role the condition plays in criminal conduct and seek alternatives to simple incarceration for veterans. The programs seem to be working [PDF].

Such recognition, however, has not reached the military administrative boards authorized to change veterans’ discharge characterizations. There are two such boards—the Discharge Review Boards (DRBs) and the Boards for the Correction of Military Records (BCMRs)—within each branch of the military. Veterans who received OTH discharges typically apply first to the DRBs and if no relief is received, as most often is the case, then to the BCNRs. The authority of both boards to grant relief is very broad. Although Congress granted the boards wide discretion to rewrite an applicant’s military history, in practice they exercise that discretion sparingly.

A recent article in the Yale Law Journal noted that the Army BCMR had approved only 2 of 145 discharge upgrade applications from Vietnam veterans with PTSD. The article further noted the disingenuous approach of the Army BCMR in denying those applications: the veterans presented no evidence that they were diagnosed with PTSD prior to their discharge. Yet the Army BCMR is fully aware that PTSD was not established as a psychiatric diagnosis until 1980, nearly eight years after the withdrawal of US combat troops from Vietnam.

The present author’s own review, part of a comprehensive study presently underway, of Army DRB applications from Iraq and Afghanistan-era veterans claiming PTSD is producing similar findings. For this article, thirty-four applications from the years 2009-2013 were selected from more than 300. All involved discharges for misconduct. Acknowledgement by the Army DRB of the actual diagnosis of PTSD, typically by the VA, was the sole criteria for selection. Applications were excluded in which veterans asserted a PTSD diagnosis, but apparently provided no supporting evidence.

Of the thirty-four applications reviewed, the Army DRB did not grant a single application based on PTSD. The language of the Board in case number AR20090008585 is representative of its approach to PTSD claims: “this medical condition did not overcome the reason for discharge and characterization of service granted and the Applicant fully understood the difference between right and wrong when he committed the misconduct that caused the unit commander to initiate the separation action.” In AR20110021138, the Board concluded, “just because the applicant suffers from PTSD does not mean he didn’t know the difference between right and wrong or that he did not have control over his behavior.” Similarly, in AR20130009988, the Board concluded, “[i]t appears the applicant’s chain of command determined that although he was suffering from PTSD, he knew the difference between what was right and what was wrong as indicated by the mental status evaluation. Further, there are many Soldiers with the same condition that completed their service successfully.”

The Board granted five of the thirty-four decisions reviewed. Four were granted due to procedural errors in the discharge process, and one was based on the length of the applicant’s honorable service. In no case did the Board acknowledge that PTSD contributed to the misconduct that resulted in discharge.

In effect, the Army DRB is applying the evidentiary standard of the defense of insanity. The federal version of that standard, found at 18 US Code Section 17(a), requires a defendant to prove by clear and convincing evidence that he, “as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” Yet 10 US Code Section 1553 and Army Regulation 15-180, which govern the DRB, do not create such a high standard, which is utterly inconsistent with the remedial nature of the Army DRB.

The unwillingness of the Army DRB to accept a causal relationship between PTSD and misconduct underscores the need for a better remedy. While bills in various forms have been introduced in Congress addressing PTSD, none has brought relief to the veterans with PTSD who received OTH discharges. The most effective solution resides with the Commander-in-Chief who by executive order may instruct the military secretaries to receive and grant all applications from veterans with OTH discharges for misconduct who prove service-connected PTSD. In many instances, proof will come from the VA, and in others, from private psychiatrists and psychologists. Presidents have used Executive Orders to implement the amnesty granted to Vietnam-era draft evaders (Exec. Order 11967) and to desegregate the Armed Forces (Exec. Order 8802).

Opponents of such a measure would argue that granting honorable discharges to veterans who engaged in misconduct would diminish the value of honorable discharges generally. Yet the argument evades the very point made by the Army: the real likelihood that the misconduct resulted from PTSD, whether or not it was diagnosed during military service. And it avoids the compelling argument that soldiers sent into battle should be given the benefit of the doubt afterward, if not shown a good measure of compassion. The Army DRB clearly is unwilling to do so, so the Commander-in-Chief should.

Raymond J. Toney practices military law from his offices in Emeryville, CA. He has represented numerous veterans suffering from combat-related PTSD. His web address is: militarylawpro.com.

Suggested citation: Raymond Toney, The Case for “Amnesty” for Iraq and Afghanistan Veterans with PTSD and “Bad Paper” Discharges, JURIST-Hotline, July 2, 2014, http://jurist.org/hotline/2014/july/raymond-toney-ptsd-amnesty.php.