WASHINGTON—While most servicemembers receive honorable discharges, as many as 7% discharged since 1980 have what are commonly known as “bad paper” discharges.
Since 1980, 575,000 servicemembers have received bad paper discharges, many of which relate to minor infractions that are never proven in court.
While VA presumptively accepts any veteran with an honorable discharge, veterans with bad paper discharges are presumptively denied but are not immediately excluded from receiving care.
VA is required to conduct individual reviews of bad paper veterans’ claims to determine whether there were mitigating circumstances, such as family issues or mental health conditions, that led to the discharge. If such mitigating circumstances are found, the veteran might still be able to receive treatment at a VAMC for conditions VA determines to be service-connected.
Yet, according to a report released in March by the Veterans Legal Clinic at the Legal Services Center of Harvard Law School, the staff at individual VA facilities frequently do not understand VA policy. The result is that veterans with bad paper discharges are regularly turned away without being informed they have the right to a review of their discharge circumstances.
“Numerous veterans reported presenting at VA medical facilities to seek care and being told by frontline staff that they were ineligible because of their discharge status,” the report states. “Most were not given any written decision but instead told orally that they were ineligible. Some were handed a denial letter that had incorrect information and that lacked information about their right to appeal the denial. Many were erroneously told that the only way to gain access to VA services to was obtain a discharge upgrade from the military review boards.”
Even when VHA staff filled out a form to refer the veteran to VBA for a Character of Discharge (COD) eligibility review, action was not always taken on the referral and the veteran was not told how to follow up.
The House VA Committee held a hearing last month on the department’s handling of bad paper discharges. VA officials told legislators that healthcare facility staff should never make the determination as to whether a veteran’s discharge prevents them from receiving care.
“It breaks my heart that any veteran who is eligible was turned away by a healthcare facility,” declared Garth Miller, VHA’s director of member services. “Since 2017 our organization has worked hard … to provide robust standardization training for VA staff to enroll veterans. This includes an entire module specific to other than honorable discharges.”
Regulations state that the veteran be referred to VBA to receive a COD review. During the review, the veteran will have the opportunity to present evidence such as post-discharge medical records showing diagnoses for conditions such as post-traumatic stress disorder or traumatic brain injury that could have contributed to the discharge.
A 2010 study of Marine Corps veterans documented that those with PTSD were 11 times more likely to be discharged for misconduct than those without PTSD diagnoses. A 2017 Government Accountability Office report found that, of the servicemembers discharged for misconduct between 2011 and 2015, 62% had been diagnosed with a mental health condition.
Mental Health Issue
“When we can see in the records that there’s a mental health issue—that’s a mitigating factor. That’s an easy one,” explained Laurine Carson, VBA’s deputy executive director of policy and procedure for compensation services. “That would make them eligible for VA healthcare. The law allows us to do that.”
When the evidence is unclear and a decision could go either way, VBA errs on the side of the veteran, she explained.
According to Carson, VBA has conducted approximately 35,000 COD determinations in the last 10 years. Of those requests, 25,000 were found to be eligible for medical treatment, and 3,500 were found honorable for VA purposes, meaning those veterans were eligible for the full range of VA benefits.
Many more veterans may benefit from a COD review, however, the Veterans Legal Clinic report states.
The report also notes that bad paper discharges are handed out disproportionately and that veterans most affected are younger, less affluent and members of groups that are already face discrimination.
Since 1980, the vast majority of bad paper discharges (99.8%) were given to enlisted servicemembers rather than officers. Also, the number of bad paper discharges has steadily risen since World War II. Following World War II, 98.1% of discharges were honorable. Today that number is at 84.8%. Of the approximately 500,000 bad paper veterans, it’s estimated that 125,000 are from the post-9/11 era.
In a 2017 report, Black airmen were much more likely to receive disciplinary action than their white peers, and Black soldiers are twice as likely to face court martial. Soldiers who report sexual harassment or assault are also more likely to receive bad paper discharges.
During the years of “don’t ask, don’t tell”, the policy in effect from 1994 to 2001 that barred openly gay people from military service, more than 100,000 servicemembers were discharged because of their LGBT status.
The mere fact of having a bad paper discharge makes a veteran more likely to have higher rates of mental health conditions, unemployment, homelessness and suicide, explained Dana Montalto, attorney and clinical instructor for the Veterans Legal Clinic. “One recent study found that they are at three times the risk of experiencing suicidal ideations.”
A law passed in 2017 and extended a year later allows veterans with bad paper to use VA services in a mental health emergency.
VA still has a responsibility to better train its staff and ensure veterans with bad paper discharges are provided a COD review, Montalto declared.
“There’s a huge amount of misinformation out there about eligibility,” she explained. “Most veterans with less than honorable discharges are under the misimpression that they are categorically ineligible for VA benefits. VA needs to take the lead on that—to counter that misimpression.”