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Intersections between Mental Health and Law among Veterans pp 155–194Cite as

Military Discipline and the Incarcerated Veteran

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Abstract

A primary reason for the success of Veterans Treatment Courts is their ability to link justice-involved veterans to countless benefits provided by the Department of Veterans Affairs. Veterans who were discharged under honorable conditions may enjoy healthcare, disability compensation, vouchers for rent, the G.I. Bill, or vocational rehabilitation that includes college tuition. However, veterans who have other-than honorable or punitive discharges based upon offenses while in the military have far fewer options. Many times, military offenses are linked to untreated symptoms related to honest and faithful military service. The comparative lack of federal resources for “bad paper” veterans is particularly concerning in the criminal justice system because research is increasingly demonstrating that these veterans are at far greater risk of arrest, incarceration, and the other factors that contribute to criminal involvement, such as homelessness and substance dependence. This chapter describes recent developments in the Department of Defense (DoD) that offer new hope to incarcerated bad paper veterans. Beginning in 2014, the DoD took a bold and long overdue step of explicitly recognizing the connection between military trauma and military misconduct. By 2017, DoD articulated factors to consider in evaluating a “bad paper” discharge with allowances for Posttraumatic Stress Disorder, Traumatic Brain Injury, other mental health conditions, military sexual assault, and sexual harassment. These new standards apply equally to veterans who have never requested discharge upgrades and those denied upgrades in years prior. With knowledge of these new standards, corrections professionals can offer new opportunities for veterans to improve their lives upon release.

Evidence of misconduct, including any misconduct underlying a veteran’s discharge, may be evidence of a mental health condition, including PTSD; TBI; or of behavior consistent with experiencing sexual assault or sexual harassment.

– A. M. Kurta (2017, ¶ 6)

U.S. Department of Defense

The positions in this chapter are solely those of the author based upon his experience in the military and providing legal services for veterans. These positions do not represent and are not endorsed by any federal organization to include the Department of Defense or the Department of Veterans Affairs. The author extends special thanks to Dana Montal to of the Legal Services Center for reviewing and providing excellent suggestions on earlier versions of this chapter.

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Notes

  1. 1.

    In 2013, through the 2014 National Defense Authorization Act, Congress fundamentally altered the commander’s clemency powers in the face of outrage over an Air Force General’s decision to reverse a military jury’s conviction of an officer for the crime of rape (Simms, 2014). Scrutiny over command discretion led to new standards mandating special procedures in sexual assault cases and stripping commanders of post-conviction clemency in serious cases (National Defense Authorization Act of 2014, 2013).

  2. 2.

    The severity of punishment depends on the level of NJP and the recipient’s rank, with a summary court-martial imposing the least punishment and a General Officer Article 15 imposing the greatest punishment (Article 15, Uniform Code of Military Justice).

  3. 3.

    The U.S. Supreme Court has observed that the Summary Court-Martial “occupies a position between informal nonjudicial disposition under Article 15 and the courtroom type procedure of the general and special courts-martial” (Middendorf v. Henry, 1976, p. 32).

References

  • Adams, B., & Montalto, D. (2017). With malice toward none: Revisiting the historical and legal basis for excluding veterans from “veterans” services. Penn State Law Review, 122(1), 69–139.

    Google Scholar 

  • American Psychiatric Association. (2013, November 11). Military mental health infographic. Reprinted in Veterans Day and military mental health: The startling facts. Psychiatric Times. Retrieved from http://www.psychiatrictimes.com/military-mental-health/veterans-day-and-military-mental-health-startling-facts

  • Army Writer. (n.d.). Magic bullet counseling. Retrieved March 7, 2018 from http://www.armywriter.com/magic-statement.htm

  • Baker, J. E. (2014). Is military justice sentencing on the march? Should it be? And if so, where should it head? Court-martial sentencing process, practice, and issues. Federal Sentencing Reporter, 27(2), 72–87.

    Article  Google Scholar 

  • Baldwin, J. M. (2016). Investigating the programmatic attack: A national survey of veterans treatment courts. Journal of Criminal Law and Criminology, 105(3), 705–752.

    Google Scholar 

  • Bland v. Connally, 293 F.2d 852 (D.C. Cir. 1961).

    Google Scholar 

  • Blue-Howells, J. H., Clark, S. C., van den Berk-Clark, C., & McGuire, J. F. (2012). The U.S. Department of Veterans Affairs Veterans Justice Programs and the sequential intercept model: Case examples in national dissemination of intervention for justice-involved veterans. Psychological Services, 10(1), 48–53.

    Article  Google Scholar 

  • Bojan, M. E. (2016). Bad paper: Reforming the Army reprimand process. Military Law Review, 224, 1149–1209.

    Google Scholar 

  • Brignone, E., Fargo, J. D., Blais, R. K., Carter, M., Samore, M., & Gundlapalli, A. (2017). Non-routine discharge from military service: Mental illness, substance use disorders, and suicidality. American Journal of Preventive Medicine, 52(5), 557–565.

    Article  Google Scholar 

  • Brooker, J. W., Seamone, E. R., & Rogall, L. C. (2012). Beyond “T.B.D.”: Understanding VA’s evaluation of a former servicemember’s benefit eligibility following involuntary or punitive discharge from the armed forces. Military Law Review, 214, 1–328.

    Google Scholar 

  • Carson, B. (2016, February 4). Memorandum for secretaries of the military departments, Subject: Consideration of discharge upgrade requests pursuant to supplemental guidance to military boards for correction of military/naval records (BCMRs/BCNR) by veterans claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI). Washington, DC: Office of Principal Deputy Under Secretary of Defense.

    Google Scholar 

  • Connecticut Veterans Legal Center. (2011). Veterans discharge upgrade manual. Retrieved from https://law.yale.edu/system/files/documents/pdf/Clinics/wirac_CTdischargeUpgradeManual.pdf

  • Cuthbert, R. (2017a, November 3). An injustice in the Berghdal sentence. New York Times.

    Google Scholar 

  • Cuthbert, R. (2017b, November 11). Mental health help for all who serve. New York Daily News.

    Google Scholar 

  • Department of Defense. (2012). Manual for courts-martial. Washington, DC: Government Printing Office.

    Google Scholar 

  • Doan, R. (1976). Civilian conviction—Basis of administrative military discharge. Capital University Law Review, 5, 33–61.

    Google Scholar 

  • Editorial. (1977, January–February). Undesirable discharge dead. Infantry Magazine, 67(1), 52.

    Google Scholar 

  • Effron, A. (1974). Comment, Punishment of enlisted personnel outside the UCMJ: A statutory and equal protection analysis of military discharge certificates. Harvard Civil Rights-Civil Liberties Law Review, 9, 227–324.

    Google Scholar 

  • Egeland, A. M. (1977). Developments in airman administrative separations. Air Force Law Review, 18, 166–198.

    Google Scholar 

  • Gabriel, R. A. (1987). No more heroes: Madness and psychiatry in war. New York, NY: Hill and Wang.

    Google Scholar 

  • Gilligan, F. A., & Lederer, F. (2017). Court-martial procedure. New York, NY: LexisNexis Matthew Bender.

    Google Scholar 

  • Hagel, C. (2014, September 3). Memorandum for secretaries of the military departments, Subject: Supplemental guidance to military boards for correction of military/naval records considering discharge upgrade requests by veterans claiming Post Traumatic Stress Disorder. Washington, DC: Office of Secretary of Defense.

    Google Scholar 

  • Irwin, L. (2017). Justice in enlisted administrative separations. Military Law Review, 225, 35–83.

    Google Scholar 

  • Jones, B. K. (1973). The gravity of administrative discharges: A legal and empirical investigation. Military Law Review, 59, 1–25.

    Google Scholar 

  • Kurta, A. M. (2017, August 25). Memorandum for secretaries of the military departments, Subject: Clarifying guidance to military discharge review boards and boards of correction of military/naval records concerning requests by veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment. Washington, DC: Office of the Undersecretary of Defense.

    Google Scholar 

  • McLoed, A. M. (2012). Decarceration courts: Possibilities and perils of a shifting criminal law. Georgetown Law Journal, 100, 1587–1674.

    Google Scholar 

  • Middendorf v. Henry, 425 U.S. 25 (1976).

    Google Scholar 

  • Murphy, C. S., Kane, T., Markey, E. J., Boxer, B., Tester, T., Baldwin, T., …, Wyden, R. (2015, November 4). Letter to Secretary of the Army Eric Fanning and General Mark A. Milley. Retrieved from https://www.npr.org/sections/thetwo-way/2015/11/04/454675053/lawmakers-call-for-army-to-investigate-misconduct-discharges-of-service-members

  • National Defense Authorization Act of 2014. (2013). Public Law No. 113-66 § 1702, 127 Stat. 672, 954-58 (amending 10 U.S.C. § 860).

    Google Scholar 

  • Oppel, R. A., Jr. (2017, November 3). Bowe Bergdahl avoids prison for desertion; Trump calls sentence “disgrace”. New York Times.

    Google Scholar 

  • Pentland, B. (1979, July 11). Prepared statement as Coordinator, Veterans in Prison Project, Veterans Administration Medical Center (Brentwood), Los Angeles, CA. Oversight on Issues Related to Incarcerated Veterans. Hearing Before the Comm. on Veterans’ Affairs, United States Senate (pp. 523–528). 96th Cong. 1st Sess. Washington, DC: Government Printing Office.

    Google Scholar 

  • Pentland, B., & Scurfield, R. (1982). Inreach counseling and advocacy with veterans in prison. Federal Probation, 46, 21–28.

    Google Scholar 

  • Press Release. (2018, March 22). Murphy’s “Honor Our Commitment Act” included in FY18 Omnibus Appropriations Bill. Retrieved from https://www.murphy.senate.gov/newsroom/press-releases/murphys-honor-our-commitment-act-included-in-fy18-omnibus-appropriations-bill

  • Rosenblatt, F. D. (2010, September). Non-deployable: The court-martial system in combat from 2001-2009. Army Lawyer, 12–34.

    Google Scholar 

  • Rosenthal, J., & McGuire, J. F. (2013). Incarcerated veterans. In L. Gideon (Ed.), Special needs offenders in correctional institutions (pp. 345–376). Thousand Oaks, CA: Sage.

    Chapter  Google Scholar 

  • Sandel, C. P. (1984). Other-than-honorable military administrative discharges: Time for confrontation. San Diego Law Review, 21, 839–859.

    Google Scholar 

  • Schwartz, S., & Levitas, L. (2011). Restorative justice for veterans: The San Francisco Sheriff’s Department’s Community of Veterans Engaged in Restoration (COVER). Washington University Journal of Law and Policy, 36, 47–63.

    Google Scholar 

  • Seamone, E. R. (2011). Reclaiming the rehabilitative ethic in military justice: The suspended punitive discharge as a method to treat military offenders with PTSD and TBI and reduce recidivism. Military Law Review, 208, 1–212.

    Google Scholar 

  • Seamone, E. R. (2013). Dismantling America’s largest sleeper cell: The imperative to treat, rather than merely punish, active duty offenders with PTSD prior to discharge from the armed forces. Nova Law Review, 37, 479–522.

    Google Scholar 

  • Seamone, E. R., Mcguire, J. F., Sreenivasan, S., Clark, S., Smee, D., & Dow, D. (2014). Moving upstream: Why rehabilitative justice in military discharge proceedings serves a public health interest. American Journal of Public Health, 104(10), 1805–1811.

    Article  Google Scholar 

  • Seamone, E. R., Sreenivasan, S., McGuire, J. F., Smee, D., Clark, S., & Dow, D. (2017). A rehabilitative justice pathway for war-traumatized offenders caught in the military misconduct Catch-22. Armed Forces & Society, 44(1), 1–17.

    Google Scholar 

  • Simms, S. (2014). Comment, Revision of Article 60 and the military clemency authority’s clemency power: An alternative to enacted Legislation. National Security Law Journal, 2, 301–330.

    Google Scholar 

  • U.S. Court of Appeals for the Armed Forces. (2003). Annual report submitted to the Committees on Armed Services of the United States Senate and the House of Representatives and to the Secretary of Defense, Secretary of Homeland Security, and Secretaries of the Army, Navy, and Air Force Pursuant to the Uniform Code of Military Justice for the Period October 1, 2002 to September 30, 2003. Washington, DC: U.S. Court of Appeals for the Armed Forces.

    Google Scholar 

  • U.S. Court of Appeals for the Armed Forces. (2011). Annual report submitted to the Committees on Armed Services of the United States Senate and the House of Representatives and to the Secretary of Defense, Secretary of Homeland Security, and Secretaries of the Army, Navy, and Air Force Pursuant to the Uniform Code of Military Justice for the Period October 1, 2010 to September 30, 2011. Washington, DC: U.S. Court of Appeals for the Armed Forces.

    Google Scholar 

  • U.S. Department of Army. (2010, January 1). Department of the Army Pamphlet 27-9: Legal services, military judges’ benchbook. Washington, DC: Headquarters, Department of the Army.

    Google Scholar 

  • U.S. Department of Army. (2014, July). Army Technical Publication 6-22.1: The counseling process. Washington, DC: Headquarters, Department of the Army.

    Google Scholar 

  • U.S. Department of Defense. (2017, February 27). Directive No. 1332.14, Subject: Enlisted administrative separation. Washington, DC: Government Printing Office.

    Google Scholar 

  • U.S. Department of Veterans Affairs. (2017, June 27). VA Secretary formalizes expansion of emergency mental health care to former service members with Other-Than-Honorable discharges. Retrieved from https://www.va.gov/opa/pressrel/pressrelease.cfm?id=2923

  • U.S. Department of Veterans Affairs. (n.d.). Vet Centers, eligibility. Retrieved June 25, 2018 from https://www.vetcenter.va.gov/eligibility.asp

  • U.S. Government Accountability Office. (2017, May). Report to congressional committees: DoD health, actions needed to ensure Post-Traumatic Stress Disorder and Traumatic Brain Injury are considered in misconduct separations (GAO-17-260). Washington, DC: Government Printing Office.

    Google Scholar 

  • United States v. Smart, 21 M.J. 15 (C.M.A. 1985).

    Google Scholar 

  • Veterans Legal Services Clinic. (2015). Unfinished business: Correcting “bad paper” for veterans with PTSD: The Defense Department’s adjudication of discharge upgrade applications one year since its September 2014 PTSD directive. New Haven, CT: Yale Law School.

    Google Scholar 

  • Veterans Legal Clinic. (2016). Underserved: How the VA wrongfully excludes veterans with bad paper. Jamaica Plain, MA: Harvard Legal Services Center.

    Google Scholar 

  • Wilkie, R. L. (2018, July 25). Memorandum for secretaries of the military departments, Subject: Guidance to military discharge review boards and boards for correction of military/naval records regarding equity, injustice, or clemency determinations. Washington, DC: Office of the Undersecretary of Defense.

    Google Scholar 

  • Winthrop, W. (1920). Military law and precedents (2nd ed.). Washington, DC: U.S. Government Printing Office.

    Google Scholar 

  • Zwerdling, D., & De Yoanna, M. (2016, February 1). Senators want moratorium on dismissing soldiers during investigation. National Public Radio. Retrieved from https://www.npr.org/2016/02/01/464907342/senators-want-moratorium-on-dismissing-soldiers-during-investigation

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Author information

Authors and Affiliations

  1. Veterans Benefits Attorney, Loxley Services, and Major, U.S. Army Reserve, Gainesville, FL, USA

    Evan R. Seamone

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  1. Evan R. Seamone
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Editor information

Editors and Affiliations

  1. Veterans Affairs National Center on Homelessness Among Veterans, Tampa, FL, USA, Department of Psychiatry, Yale University School of Medicine, New Haven, CT, USA

    Jack Tsai

  2. Veterans Benefits Attorney, Loxley Services, and Major U.S. Army Reserve, Gainesville, FL, USA

    Evan R. Seamone

Appendices

Appendix 1: A.M. Kurta Memorandum

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Appendix 2: Robert L. Wilkie Memorandum

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Appendix 3: DD Form 293

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Appendix 4: DD Form 149

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Appendix 5: Resources for Discharge Upgrading Assistance

  1. 1.

    Connecticut Veterans Legal Center (2011). Veterans Discharge Upgrade Manual. Retrieved from https://law.yale.edu/system/files/documents/pdf/Clinics/wirac_CTdischargeUpgradeManual.pdf

  2. 2.

    Connecticut Veterans Legal Center (2014). Applying for a Discharge Upgrade When you Have PTSD: A Supplemental Guide to the Connecticut Veterans Legal Center’s Veterans Discharge Upgrade Manual. Retrieved from https://ctveteranslegal.org/wp-content/uploads/2014/12/DU-Manual-Supplement.pdf

  3. 3.

    Yale Law School Veterans Legal Services Clinic (2017). Discharge Upgrade Application Guide. Retrieved from https://www.vetsprobono.org/library/attachment.312763

  4. 4.

    Swords to Plowshares (n.d.). Upgrading Your Discharge AND Changing the Reason for Your Discharge. Retrieved on March 19, 2018 from https://www.swords-to-plowshares.org/guides/upgrading-your-military-discharge-and-changing-the-reason-for-your-discharge/

  5. 5.

    Military Law Task Force of the National Lawyers Guild (2017). Discharge Upgrades: Introductory Material and Resources for Attorneys and Counselors. Retrieved from http://nlgmltf.org/military-law-library/publications/memos/discharge-upgrades/

  6. 6.

    Michael Ettlinger & David F. Addlestone (1990). Military Discharge Upgrading and Introduction to Veterans Administration Law. Washington, DC: National Veterans Legal Services Project). Retrieved from https://ctveteranslegal.org/wp-content/uploads/2012/12/MilitaryDischargeUpgrading_lr.pdf

  7. 7.

    Boston Bar Association (2015, June 2). Representing Veterans in Discharge Upgrade Cases. Boston, MA: Boston Bar Association Continuing Legal Education. Retrieved from http://www.legalservicescenter.org/wp-content/uploads/2012/10/Resource-Binder-Materials.pdf

  8. 8.

    John W. Brooker, Evan R. Seamone & Leslie C. Rogall (2012). Beyond “T.B.D.”: Understanding VA’s evaluation of a former servicemember’s benefit eligibility following involuntary or punitive discharge from the armed forces. Military Law Review, 214, 1–328.

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Seamone, E.R. (2019). Military Discipline and the Incarcerated Veteran. In: Tsai, J., Seamone, E. (eds) Intersections between Mental Health and Law among Veterans. Springer, Cham. https://doi.org/10.1007/978-3-030-31664-8_8

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