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New Report Documents Wrongful VA Denial of Benefits to Vets with Bad Paper Discharges

Released 3/30/16 | Tags: Discharge Upgrades, Veteran's Benefits

125,000 Veterans Who Served Since 2001 Excluded from Basic Veteran Services
Post-9/11 Veterans Excluded by VA at Alarming Rates, Says Swords to Plowshares and NVLSP

FOR IMMEDIATE RELEASE - March 30, 2016    

WASHINGTON – Approximately 125,000 post-9/11 veterans with bad paper discharges are being wrongfully excluded from basic veteran services by the Department of Veterans Affairs (VA), says a new white paper issued today by Swords to Plowshares and the National Veterans Legal Services Program (NVLSP). The culprit is VA’s own regulations, which do not match eligibility standards set up by Congress in 1944 in the original GI Bill of Rights.

The white paper, “Underserved: How the VA Wrongfully Excludes Veterans with Bad Paper,” reviews the history of the VA’s modern eligibility standard. It analyzes records obtained from the VA and the Department of Defense, as well as 23 years of decisions by the Board of Veterans’ Appeals.  The report was prepared by the Veterans Legal Clinic at the Legal Services Center of Harvard Law School.

Key Report Findings

• Post 9/11 veterans are being excluded from basic veteran services at unprecedented rates. The VA is excluding 125,000 veterans who served since 2001 without ever reviewing their service – including at least 33,000 who deployed to Iraq or Afghanistan. That amounts to 6.5% of all men and women who served in the military since 2001 (only 2.8% of Vietnam era veterans and 1.7% of World War II era veterans were excluded by VA).

• VA’s regulations exclude veterans unfairly. Only 1% of service members discharged in 2011 would be barred from VA services if the criteria set up by Congress were followed by VA. Regulations used by VA result in the exclusion of an additional 5.5% of all service members.

• The VA is not consistently applying its regulations. In 2013, VA Regional Offices denied eligibility to 90% of veterans with bad paper discharges, but there is wide variation between offices. While the Boston Regional Office denied 69% of veterans, the Indianapolis Regional Office denied 100%.

• Even when character of discharge determinations are done by the VA, they take too long to complete (more than 3 years). On average, it takes VA 1,200 days to complete a character of discharge determination for a veteran with “bad paper.”

• Veterans who need VA services (and should be eligible) are not gaining access even if they appeal. Three out of four veterans with bad paper discharges who served in combat and have post-traumatic stress disorder (PTSD) are denied eligibility by the Board of Veterans’ Appeals.

• The VA excludes more veterans from some service branches than others. Marine Corps veterans are nearly 10 times more likely to be ineligible for VA services than Air Force veterans.

“We made a database of nearly one thousand VA decisions on this issue,” said Bradford Adams, staff attorney and manager of direct legal services at Swords to Plowshares. “The data shows that even if veterans served in hardship deployments, or if they experienced mental health trauma, VA consistently ignored these facts. Instead, the VA deemed them ineligible for basic VA services like housing, disability compensation and healthcare. They served their country, but the VA does not consider them veterans.”

What Are Bad Paper Discharges? Why Are They So Bad?
Bad paper discharges occur when service members leave the military under circumstances the military deems “less than honorable.” These can be discharges labeled “other than honorable conditions” or “bad conduct” or “dishonorable.” The “bad conduct” and “dishonorable discharge” can only be issued as a sentence of a court-martial.    Congress provided that those issued discharges under “other than honorable conditions” can only be  barred from  basic VA services if the veteran’s misconduct would have led to a “dishonorable discharge” in a court-martial proceeding. 

“Exclusion from VA services means the denial of housing for those who are homeless, the denial of healthcare for those who are disabled, and the denial of support to those whose disabilities prevent them from working. Exclusion from the VA also means that those who served our country are not even recognized as “veterans” by our government,” said Michael Blecker, executive director of Swords to Plowshares.

What is the VA Not Doing?
Under the “GI Bill of Rights” passed by Congress in 1944, the VA is obligated to evaluate the “character of the discharge” in determining if a veteran can access basic VA services, such as healthcare, housing, disability benefits and burial benefits. If a veteran has not committed a felony or other serious crime that would have led to a “dishonorable discharge” in a court-martial proceeding, the statute says he or she should be deemed eligible for VA services. Congress also instructed the VA to take into account positive or mitigating factors of military service, such as combat service, hardship, or a mental health condition related to military service.

But in reality, VA’s existing regulations do not match the statute Congress passed in 1944. “Because  VA’s regulations wrongly allow it, the VA has been excluding veterans discharged with bad paper for minor offenses.  Even disabled veterans with honorable combat service or those whose mental disorders led to their discharges have been blocked by the VA from receiving any help.  This is plainly not what Congress intended,” said Bart Stichman, joint executive director of the National Veterans Legal Services Program.

The Solution: A Rulemaking Petition to the VA
Alarmed by the findings and by the effect of the VA’s rules on veterans in need, Swords to Plowshares and NVLSP jointly filed a Petition for Rulemaking at the VA in December 2015. That Petition, in which they were represented by the Veterans Legal Clinic at the Legal Services Center of Harvard Law School and Latham & Watkins LLP, asks the agency to change its regulations so that the regulations better accord with Congress’s intent and more veterans are able to access the benefits that they need and deserve.

The Petition asks the VA to cease requiring pre-eligibility reviews for most veterans who were administratively discharged and incorporate consideration of positive and mitigating factors into the pre-eligibility review standards.

“Changing the VA’s regulations will provide hundreds of thousands of veterans access to basic care and support. It will also help the VA address national priorities to end homelessness and suicide among veterans,” said Dana Montalto, attorney and Liman Fellow at the Veterans Legal Clinic at the Legal Services Center of Harvard Law School. “Adoption of the proposed changes serves both the interests of the VA and the needs of veterans.”

Download the Report & the Rulemaking Petition
The report is available at http://j.mp/22HJszE 
The Petition is available at http://j.mp/VA-petition

Media contact: Ami Neiberger-Miller, 703.887.4877, ami@steppingstoneLLC.com

About Swords to Plowshares
Founded in 1974 by veterans, Swords to Plowshares is a community-based not-for-profit 501(c)(3) organization that provides needs assessment and case management, employment and training, housing, and legal assistance to approximately 3,000 veterans in the San Francisco Bay Area each year.Swords to Plowshares promotes and protects the rights of veterans through advocacy, public education, and partnerships with local, state, and national entities. For more information go to www.swords-to-plowshares.org

About the National Veterans Legal Services Program
The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1980. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the federal benefits they have earned through their service to our country. NVSLP offers training for attorneys and other advocates, connects veterans and active duty personnel with pro bono legal help when seeking disability benefits, publishes the nation's definitive guide on veteran benefits, and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org.

About the Veterans Legal Clinic
The Veterans Legal Clinic at the Legal Services Center of Harvard Law School provides pro bono representation to veterans and their family members in a range of veterans and military law matters, as well as pursues initiatives to reform the systems that serve the veterans community. Located at the crossroads of Jamaica Plain and Roxbury, the Legal Services Center is composed of five clinics—the Veterans Legal Clinic, Consumer Law Clinic, Housing Law Clinic, Family Law Clinic, and Federal Tax Clinic—and is Harvard Law School’s largest clinical placement site. The Center’s longstanding mission is to educate law students for practice and professional service while simultaneously meeting the critical legal needs of the community. For more information go to www.legalservicescenter.org.


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