National Coalition for Homeless Veterans Conference, May 29, 2014 - - PDF document

5/29/14 1

Discharge Upgrades, and Where to Go for Services until the Upgrade

James Richardson Homeless Veterans Representation Project; Mid-Shore Pro Bono, Inc. richjk2@verizon.net (301) 535-8527

National Coalition for Homeless Veterans Conference, May 29, 2014

Teresa Panepinto Swords to Plowshares tpanepinto@stp-sf.org (415) 252-4788

• 1. Introductions
• 2. Video
• 3. Scope of Problem
• 4. Types of Discharges, Benefits Eligibility
• 5. Basics of Discharge Review
• 6. Basic of VA Character of Discharge

Determinations (alternative to discharge review)

• 7. Q&A

Swords to Plowshares is a veterans service organization in San Francisco We provide the following services:

– Legal assistance with VA claims and discharge upgrades – Health and Social Services case management – Employment and Training assistance – Rapid Re-housing and Homeless Prevention via SSVF – Transitional housing for veterans with mental illnesses and veterans undergoing treatment for substance abuse – Permanent supportive housing for formerly homeless veterans

We also operate the Institute for Veteran Policy (IVP), which researches issues important to veterans and raises public awareness

5/29/14 2

Significance of “Bad Paper”

• 692,000 less than fully Honorable Discharges during

Vietnam era

• 115,000 Other Than Honorable discharges since 2001
• at least 14,000 current homeless veterans w/ bad paper
• Multiple deployments, higher survival rates but increase

in medical conditions/disabilities, & “signature wounds”

• f PTSD & TBI all contribute to possibility of bad paper.
• Increase in bad paper predicted as a result of shrinking

military (going to smallest force since pre WWII)

• Bad paper vets deprived of access to:
• Grant Per Diem
• SSVF
• HUD-VASH
• Service-connected disability compensation
• Non service-connected pension

Most Important Civil Legal Need

• f Homeless Veterans

– For veterans with disabilities that prevent them from working, or diminish their earning potential, VA benefits are the most important.

• Veterans generally cannot properly

address other civil legal needs without stable housing (i.e. cannot win custody of children if no place to house them)

• Often only way to get stable housing is via

VA benefits (HUD-VASH, income supports) Who is a Veteran?

According to VA, “Veteran” status requires discharge “under conditions other than dishonorable”

• Automatically qualified:
• Honorable
• General (Under Honorable Conditions)
• Uncharacterized (if for Entry Level Separation)
• Automatically disqualified:
• Bad Conduct by general court-martial
• Dishonorable
• Subject to VA discretion:
• Uncharacterized (if for Void Enlistment or Induction, or Dropped from the Rolls)
• Other than Honorable
• Bad Conduct by special court-martial

5/29/14 3

Often those veterans with less than fully honorable discharges are those most in need of VA benefits.

– Example: veteran who self-medicates with marijuana to relieve symptoms of PTSD – Example: veteran who, due to physical injury, cannot perform up to par but is accused of malingering instead of receiving proper medical treatment

What is a VA Character of Discharge (or Character of Service) Determination?

A determination by the VA that a servicemember’s discharge was “honorable” or “dishonorable” for VA purposes. If granted favorable COD: – Eligible for all benefits except GI Bill – Does not constitute a discharge upgrade – Does not change discharge certificate (DD 214) Governing Regulation: 38 C.F.R. §3.12

Statutory bars: 38 CFR § 3.12 – AWOL > 180 days unless mitigated; general court martial; discharge in lieu of court martial; resignation by officer; deserter. Discretionary factors: 38 CFR § 3.12(d) – Offense involving moral turpitude – Willful and persistent misconduct – Length of service and other periods of service – Mitigating circumstances Insanity exception

5/29/14 4

Bar to “Veteran” Status: AWOL

AWOL most common of these bars; luckily, it is conditional bar. Factors considered w/ AWOL: “compelling circumstances to warrant the prolonged unauthorized absence” – Length & character of service – was it generally “honest, faithful, and meritorious”? – Reasons for going AWOL – take into account “age, cultural background, educational level and judgmental maturity”. Also look at “hardship or suffering” caused by overseas/combat service.

Bar to “Veteran” Status: Moral Turpitude

What constitutes moral turpitude?

• “includes, generally, conviction of a

felony” (38 CFR 3.12(d)(3)) Bar to “Veteran” Status: Willful and Persistent Misconduct Willful Misconduct "an act involving conscious wrongdoing or known prohibited action," and "will not be determinative unless it is the proximate cause of injury…or death." Mere reckless behavior is not willful misconduct

5/29/14 5

Bar to “Veteran” Status: Willful and Persistent Misconduct (2) What constitutes willful & persistent misconduct?

• Answer is somewhat nebulous. VA

lacks clear guidance here.

Will not be found W&P if:

– minor offense – otherwise meritorious service (38 USC §5303)

Mitigation

Mitigating circumstances:

– Family problems? – Health problems? – Maturity of client?

Re: length of service – how much of contract was fulfilled? Prior periods of hon. service?

Character of Discharge Determination Procedures

• Same procedures as other VA claims, worse delays
• COD determinations not considered a “rating activity,” so takes even

longer now (as most ROs have pulled staff to focus primarily on “rating activities” in order to clear out backlog)

• Submit a separate brief
• Generally easier to get a favorable character of discharge determination

than to upgrade a discharge.

5/29/14 6

COD Procedures (2) Legal work required for COD almost identical to work required for DU

– Evidence required is the same

• Minus need for positive post-service

history

– Some veterans have loser upgrade cases, but excellent COD cases (i.e. vet w/ criminal record post-service)

– Great cases for lawyers, because they can be two-for-one!

• Briefs almost identical

How to Get in the Door Accessing VA Services

If not granted favorable COD, retain eligibility for:

– Health care for service-connected disabilities – Counseling at Vet Center

• Combat veterans

5/29/14 7

Accessing VA Health Care

If “bad paper” + no favorable COD, may receive health care for service- connected conditions only! What’s supposed to happen:

• VA admissions & eligibility staff to fill out VA Form 7131 (Exchange
• f Beneficiary Information and Request for Administrative and

Adjudicative Action), forward to RO to request determination – put in pending verification status

• See VA Fact Sheet IB 10-448

What actually happens (often):

• VA admissions & eligibility staff turn away veterans with “bad paper”
• Vets are simply told they are ineligible--unacceptable response!
• Why? Because they may be unaware of proper procedure and legal

requirements. Remedy?

• Advocate and educate!
• Instruct veteran to bring copy of VA Fact Sheet with her/him when

seeking medical services.

• Accompany vet to medical center to advocate

Resources

• Self-help Memos on DU & VA

matters: www.stp-sf.org/guides

• Free CLEs in discharge review and

veterans benefits law: www.pli.edu

• search for “advocating for veterans” in

pro bono section

• Includes sample briefs and other training

materials

• Learn more about Swords’ Bad

Paper campaign: www.stp- sf.org/bad-paper/