Veterans clinic files rulemaking petition on access for veterans with ‘bad-paper’ discharges

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More than 125,000 veterans who have served since 9/11 are denied access to basic services like health care by the Department of Veterans Affairs, according to a report by the Veterans Legal Clinic at the Legal Services Center of Harvard Law School. The report, “Underserved,” presents new findings about how the VA’s regulations exclude hundreds of thousands of veterans with “bad-paper” discharges, contrary to the text and intent of the 1944 G.I. Bill of Rights, which established the current VA eligibility standard. The clinic issued the report on behalf of two veterans advocacy organizations, Swords to Plowshares and the National Veterans Legal Services Program (NVLSP).

“Congress meant for the VA to provide basic services to nearly all the men and women who served in uniform,” said Dana Montalto, an attorney and Liman Fellow in the Veterans Legal Clinic. “Yet, the VA’s regulations have operated to exclude more and more veterans from getting the care and support that they deserve.”

 

The Clinic found that 6.5 percent of veterans who have served since 9/11 are excluded from the VA — twice the rate for Vietnam era veterans and nearly four times the rate for World War II era veterans. Many of those veterans have mental or physical injuries because of their service, and many served in combat or other hardship conditions, but nevertheless cannot get health care, disability compensation, or other supportive services because of the VA’s regulations.

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Clinical Professor Dan Nagin

“Since the Veterans Legal Clinic opened our doors in 2012, we have heard from scores of veterans who wrongfully or unjustly received less-than-honorable discharges,” said Clinical Professor Dan Nagin, who directs the Veterans Legal Clinic. “There exists a dearth of legal resources for these veterans, and our students have represented many in correcting their discharges and gaining access to the basic services that they deserve.”

Students in the clinic have represented an Iraq War veteran who was less-than-honorably discharged for one-time drug use on the night that he attempted to commit suicide, a post-9/11 veteran who was wrongfully discharged on the basis of an incorrect diagnosis of personality disorder, and a veteran discharged for his sexual orientation under the now-repealed Don’t Ask, Don’t Tell policy.

The clinic has been able to continue to expand its work in this area since the arrival of fellow Dana Montalto in 2014. In addition to providing representation to more veterans, she has established the Veterans Justice Pro Bono Partnership, which trains and supports private attorneys to represent veterans in discharge-upgrade petitions. Montalto has also spearheaded systemic reform initiatives, including writing the report “Underserved”.

Other key findings of the report:

  • 3 out of 4 veterans with bad-paper discharge who served in combat and have post-traumatic stress disorder are denied recognition as “veterans” by the Board of Veterans’ Appeals.
  • There are wide disparities in eligibility rates among the VA Regional Offices and among Veterans Law Judges at the Board of Veterans’ Appeals.
  • Marine Corps veterans are nearly 10 times more likely to be excluded from the VA as Air Force veterans.

Based on these findings, the Veterans Legal Clinic filed a Petition for Rulemaking on behalf of Swords to Plowshares and NVLSP, with Latham & Watkins LLP. The petition asks the VA to adopt new regulations that accord with Congress’s law and sound policy. The proposed regulations would comply with the statutory standard by denying benefits only to those veterans who received or should have received a dishonorable discharge, and by taking into consideration whether positive or mitigating factors, such as combat service, hardship, or mental health conditions, outweigh any misconduct. The petition further asks the VA to cease requiring pre-eligibility reviews for most veterans who were administratively discharged so that veterans in need can quickly obtain health care and supportive services.

In response to the clinic’s report, Deputy Secretary of Veterans Affairs Sloan Gibson told the New York Times, “Where we can better advocate for and serve veterans within the law and regulation, we will look to do so as much as possible.” He added, “I believe the report provides us, as a department, an opportunity to do a thorough review, take a fresh look this issue and make changes to help veterans.”

The VA recently informed the petitioners that it will initiate rulemaking proceedings to update and clarify its regulations. “We appreciate the VA’s positive response to the petition,” said Montalto. “We look forward to continuing to work with the VA in the coming months to develop regulations that better serve our veterans.”

According to Nagin, “This report grows out of our individual representation and has the potential to impact hundreds of thousands veterans across the country. The VA’s adoption of the Petition for Rulemaking’s proposed regulations would help to ensure that no veterans are denied the care and support that our nation owes them.”