via Washington Post
by Alex Horton
Dwayne Smith, seen in Afghanistan in 2009, was issued an other-than-honorable discharge in 2012. (Dwayne Smith)
The discharges, given for misconduct that can range from drug use to insubordination but not proved in court, are colloquially known as “bad paper” for the lifetime of negative consequences they can have.
Experts and advocates have called for VA to properly assess eligibility shown to save lives. Veterans outside the VA system kill themselves at a higher rate than veterans who received recent VA care, the agency has said, and mental health care for veterans with bad paper can lower the risk of suicide, the American Journal of Preventive Medicine found last year.
VA declined to say whether it unlawfully denied care to veterans.
Generally, other-than-honorable discharges make it less likely that veterans will qualify for VA services. But the agency is required by law to accept applications, look for mitigating circumstances that could grant them services, issue written decisions and provide appeal information to veterans.
It didn’t happen that way for Dwayne Smith, a Marine Corps veteran who served as an engineer equipment operator in Afghanistan’s volatile Helmand province in 2009. He returned with post-traumatic stress and traumatic brain injuries, and his best friend died in his sleep days after they came home.
“That was one thing that changed me,” Smith, 31, told The Washington Post. His standing in his unit suffered, culminating in an unauthorized absence he used to go home to visit his mother, who was dying of cancer, he said.
Senior leaders offered him a way out as his enlistment neared its end: Take an other-than-honorable discharge or risk a dishonorable discharge later. He saw it as a plea bargain to be with his mother, and in 2012, he left the Marine Corps with bad paper.
Months later, unmoored and in need of care, Smith drifted to VA in search of help. A front-line worker at the Brockton VA outside of Boston looked over his discharge paperwork and sent him away without documenting his visit, he said. Multiple denials followed during the next two years.
“I was supposed to be able to turn to them,” Smith, now an athletic trainer for children, said of VA.
His experience is emblematic of the struggles of many of the half-million veterans issued other-than-honorable discharges since 1980, when certain eligibility requirements began to apply, said Dana Montalto, an attorney for the law clinic and co-author of the report.
Many veterans are simply given a verbal denial, while others are told incorrectly that the only solution is to go back to the Pentagon to try to get their discharge upgraded.
VA could not produce numbers for how many eligibility decisions it has made involving bad paper. The legal clinic estimated the number was around 100,000.
“VA has done more outreach to other-than-honorable former service members in the last few years than ever before,” VA press secretary Christina Mandreucci said Wednesday, which includes a call center launched in December to contact veterans who left the military in the past year, including those with bad paper.
VA also sent 444,487 letters sent to veterans with bad paper describing some mental-health benefits granted in 2017.
However, VA pulled their home addresses from Pentagon records — information that could be decades old for a Vietnam or Gulf War veteran, for instance, who may have used a parent or guardian’s address at the time of enlistment.
The result: 2,580 veterans with other-than-honorable discharges received care at VA in 2018, the agency said in a blog post last year, one day after a reporter in Seattle detailed the case of a veteran denied care.
“That is horrifically low by any measure,” said Kris Goldsmith, the associate director for policy and government affairs at Vietnam Veterans of America. “It shows how unserious VA’s leadership is in getting these guys and gals into the system.”
It is impossible to know how many veterans VA has turned away without evaluations, Montalto said.
In one case detailed in the study, a Vietnam veteran who left with bad paper suffered from untreated post-traumatic stress disorder for 50 years after he was incorrectly told he was ineligible for VA care. An attorney working on his case helped him win the benefits he earned, the report said.
Internal guidance from the Pittsburgh VA Medical Center on how to assess other-than-honorable discharges. (Dana Montalto)
Much of the confusion comes from inside VA, the report found, after records requests revealed guidance for staff that was wrong or incomplete at VA facilities across the country.
The Pittsburgh VA Medical Center used a clip art image of a thumbs-down to describe other-than-honorable discharges, implying they are a non-starter. VA’s hospital in El Paso incorrectly told a veteran that only honorable and general discharges lead to VA care, the study said. Those cases contradict other guidance VA has provided.
In 2017, VA allowed veterans with bad paper to use VA services in mental-health emergencies, and a law expanded that coverage a year later.
For tracking purposes, the legal clinic characterized bad paper as any discharge besides those considered honorable. Some of the categories — dishonorable and bad conduct — can be the result of serious crimes in uniform. But others, like in Smith’s case, are administrative actions enforced by a commander, not a judge or jury in a military court.
Often, they are infractions that mushroom from physical or mental wounds, such as self-medicating with drugs or alcohol after combat or sexual assault. From 2011 to 2015, the drawdown period from the highest troop levels in Iraq and Afghanistan, more than half of the 91,764 troops separated for misconduct were diagnosed with post-traumatic stress disorder or traumatic brain injuries before discharge, the Government Accountability Office found.
They can also be the result of discrimination — the study found that more than 100,000 veterans in the LGBT community left the military with bad paper from the end of World War II until 2011, when the “don’t ask, don’t tell” policy was repealed.
After a five-year battle, Smith ultimately won his appeal and received VA care and compensation in 2018 for his traumatic brain injuries and post-traumatic stress disorder. And that was only after Montalto represented him pro bono.
“That was the biggest win,” he said, “to walk into VA with my head held high.”
Filed in: In the News, Legal & Policy Work
Tags: Department of Veterans Affairs, Dwayne Smith, Veterans Law and Disability Benefits Clinic, WilmerHale Legal Services Center
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