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VA should already care for veterans with bad-paper discharges, experts say

Getting out of the military with any type of discharge less than “honorable” has been a black mark on veterans, not least of all because it hampers access to post-service benefits. But a bad-conduct or an other-than-honorable discharge does not disqualify veterans from Veterans Affairs Department health care, veteran advocates say, despite what some have been told ― sometimes by the VA itself.

Congress has been looking into the issue of whether the VA is wrongfully denying services to eligible veterans, and during a hearing Wednesday, they heard testimony from experts who say that the 1944 law that created the GI Bill and cemented the modern VA was meant to cover health care for all types of discharges other than dishonorable, but that VA policy has been excluding those veterans for decades.

“They may have walked into the VA, sat down with a benefits counselor and been told, ‘Sorry you’re not a vet,' ” said Kristofer Goldsmith, founder of High Ground Vets. “Doesn’t matter if they have a Purple Heart, doesn’t matter if they served two or three tours – doesn’t matter if they watched their buddy get their head blown off. They say, ‘You’re not a vet.‘ ”

Goldsmith, a former Army forward observer, received a general discharge in 2007, after attempting suicide. His chain of command charged him with malingering and missing movement as the attempt came the night before his unit deployed.

Since then, he has become an advocate for veterans struggling with benefits, particularly those whose bad paper discharge is the result of undiagnosed or untreated post-traumatic stress.

“The VA already has the statutory authority to care for veterans with bad paper, and more than enough reason to comply with the congressional intent of the authors of the original GI Bill of Rights,” he said. “So I beg of you: do something big.”

The House Veterans Affairs Committee brought together VA officials, along with experts, to drill down to the issue at the organization and gather suggestions for how to fix it.

“VA’s regulations and policies need reform to make sure any veteran with a less-than-honorable discharge receives fair consideration at the VA,” Rep. Elaine Luria, D-Va., said. “Unfortunately, today we see that many veterans assume that without an honorable discharge they aren’t eligible for any VA benefits.”

And for many with bad paper, she added, the misconduct that got them there is a result of post-traumatic stress and military sexual trauma, which should be considered mitigating factors for their behavior.

The language in 1944 GI Bill of Rights reflects intent that all other-than-dishonoably charged vets receive VA care, according to Dana Montanto, an instructor at Harvard’s Veterans Legal Clinic.

Congress went against the wishes of the services at the time, she said, in being that inclusive ― likely because more than half of them were veterans at the time, and they understood the complications of service.

“Over time this history has been forgotten and agency rule and practices have overtaken the words and spirit of Congress’s law,” she said.

Current reality

While there are nearly 500,000 current veterans with bad paper — 125,000 from the post-9/11 era — only 35,000 of them have applied for VA to review their characterizations of discharge, Luria said. Of those, 3,500 were deemed eligible, just 0.07 percent.

“We have a legal and moral obligation to look sympathetically at the circumstances behind less than honorable discharge,” she said.

And in some cases, it does, according to Laurine Carson, VA’s deputy executive director of policies and procedures, told lawmakers.

VA will review the circumstances of bad-conduct and other-than-honorable discharges, when a veteran files a form apply for benefits. However, experts testified, there are many stories of veterans being turned away by staff before getting that far or of overly strict policy disqualifying many less-than-honorable discharges.

“VA is looking to improve the characterization-of-discharge process through regulation,” Carson said. “We have to continue to look at regulations often. We have to look at them more frequently.”

In 2017, as a stop-gap to the issue, the VA began allowing bad-paper veterans to access emergency mental health care through VA.

“I invite you to work with VA’s legislative staff to be able to determine what type of legislation might be necessary,” Carson said.

Studies have shown that veterans with bad paper, as a result of underlying, untreated issues or because of their lack of access to benefits, are far more likely to suffer from substance abuse, homelessness, unemployment and suicidal ideations than those with honorable discharges.

“While there are services regardless of their discharge status, we want our veterans to be receiving all the care that they’re eligible for,” Rep. Lauren Underwood, D-Ill., said. “And at this point in time, we know that they are not.”

Recommendations

Advocates universally agreed that VA policy guidance should be updated to specifically require reviews for bad-paper discharges, and to leave as little up to interpretation as possible when it comes to denying claims.

Further, all veterans who come into the VA looking to apply for benefits should be encouraged to fill out a Form 21-526EZ, suggested Maureen Siedor, the legal director of advocacy group Swords to Plowshares ― even the dishonorables.

That way, every veteran would be able to make a case for benefits eligibility, particularly if they were discharged without having post-traumatic stress acknowledged.

For example, she said, she has had clients denied benefits because the characterization of discharge reflected they had gone absent-without-leave for a week or a month.

“The statute says 180 days minimum,” she said, and that is after reviewing mitigating circumstances.

Goldsmith suggested a new form entirely, created specifically with bad-paper discharges in mind. That way, rather than be discouraged from filing at all, veterans would know there is a specific procedure for apply for benefits with a less-than-honorable discharge.

Goldsmith’s general discharge qualified him for health care, but not GI Bill college benefits. Twelve years later, he graduated from Columbia University and has had his discharge upgraded.

“There are major systemic flaws that allow patriots like me to serve and sacrifice for this country, only to be discarded like trash,” Goldsmith said.

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