Wrongful Discharge for Alleged Personality or Adjustment Disorder
In the clinic’s first semester, Vietnam Veterans of America (VVA) asked for assistance in its campaign to assist the tens of thousands of former service members improperly discharged since 2001 based on an alleged personality or adjustment disorder. On behalf of VVA, the clinic submitted multiple Freedom of Information Act (FOIA) requests seeking to better understand these practices. When the U.S. Department of Defense refused to release responsive records, the clinic filed two federal lawsuits on behalf of VVA, eventually overcoming in large part government motions to dismiss and for summary judgment and securing a favorable settlement. Vietnam Veterans of Am. v. U.S. Dep’t of Def., 10 F. Supp. 3d 245 (D. Conn. 2014) (denying motion to dismiss); Vietnam Veterans of Am. v. U.S. Dep’t of Def., 8 F. Supp. 3d 188 (D. Conn. 2014) (granting in part and denying in part motion for summary judgment).
Clinic students analyzed records obtained in the FOIA litigation and wrote two reports for VVA. See Casting Troops Aside: The United States Military’s Illegal Personality Disorder Discharge Problem (VVA 2012); Disorder in the Coast Guard: The United States Coast Guard’s Illegal Personality and Adjustment Disorder Discharges (VVA 2014). Students also drafted proposed congressional legislation and regulatory reforms to address these tens of thousands of illegal discharges.
Clinic students have represented several individual Connecticut veterans who suffered from these policies. In fall 2013, for instance, clinic students represented two former Connecticut service members recently discharged for an alleged personality disorder in hearings before the Navy Discharge Review Board in Washington, D.C. In both cases, following testimony and argument, the clinic students persuaded the board that their clients had been improperly discharged, and the board ordered correction of their records.
In a third individual case involving a Connecticut veteran, William Cowles, a U.S. Army National Guard veteran wrongfully discharged on the alleged ground that he had adjustment disorder, applied unsuccessfully to the Army Board for Correction of Military Records. Clinic students sought judicial review in federal district court. After students briefed cross-motions and argued the case, Chief Judge Janet Hall agreed that the Army had violated its own discharge regulations and erroneously diagnosed Cowles. Cowles v. McHugh, 2014 WL 584 7915 (D. Conn. Sept. 30, 2014), motion to reconsider denied, 2014 WL 5668543 (D. Conn. Nov. 4, 2014).
Bad Discharges for Veterans with Post-Traumatic Stress Disorder
The clinic has also fought for the rights of Vietnam veterans who developed post-traumatic stress disorder (PTSD) before the condition was a recognized medical diagnosis, and then received an other-than-honorable discharge (OTH) for misconduct attributable to undiagnosed PTSD. The clinic has represented several individual Connecticut veterans in administrative applications to upgrade their discharge status, including John W. Shepherd, Jr., a Vietnam combat veteran who had received a Bronze Star with Valor Device, one of the Army’s highest combat awards. Mr. Shepherd later developed PTSD, however, and after engaging in minor misconduct, he received an OTH. For 40 years, Mr. Shepherd struggled with his undiagnosed, untreated condition, receiving no support from the VA due to his discharge status, and enduring periods of unemployment, homelessness, and great personal difficulty. His pro se administrative application to upgrade his discharge status was denied, but clinic students brought suit in U.S. district court, and in 2013 the Army settled by agreeing to upgrade his discharge status and pay the clinic $37,000 in attorney fees. Mr. Shepherd now receives the VA disability benefits that his service earned him.
Recognizing the systemic problems faced by some 75,000 Vietnam veterans like Mr. Shepherd, the clinic filed a proposed nationwide class action on behalf of five individual plaintiffs and three veterans’ organizations, including the VVA. See Monk v. Mabus, No. 3:14-cv-260-WWE (D. Conn.). The lead plaintiff, Conley Monk, is a former Marine whose administrative applications were repeatedly denied and who also struggled for decades to cope with undiagnosed, untreated PTSD resulting from his combat service.
Clinic students have also represented the VVA in legislative and media advocacy on behalf of Vietnam veterans with PTSD and bad discharges. This work has led to significant media attention. In addition, working closely with Senator Richard Blumenthal (D-CT), clinic students helped draft a “Sense of the Senate” provision and accompanying committee report language in the Senate version of the 2015 National Defense Authorization Act directing the relevant military boards to give “due consideration” to applications from Vietnam veterans with PTSD. In September 2014, the clinic’s litigation, media work, and political advocacy contributed to the issuance by Secretary of Defense Chuck Hagel of new guidance to all military record correction boards, requiring that upgrade applications by veterans with PTSD receive “liberal consideration.” Based on this guidance, in November 2014 the U.S. district court remanded the claims of all Monk plaintiffs for reconsideration in light of the new Pentagon policy, ordered the boards to review the cases on an expedited basis, and dismissed the class action without prejudice to refiling.
Military Sexual Trauma
Military sexual trauma (MST)—rape, sexual assault, and sexual harassment in the military—is pervasive in the military and devastating in its consequences. The clinic has represented a number of male and female Connecticut veterans who have survived MST in their claims for VA disability benefits, litigating these claims in the Hartford VA Regional Office, before the Board of Veterans’ Appeals, and before the U.S. Court of Appeals for Veterans Claims.
In addition, the clinic has worked to further systemic reform on MST issues. On behalf of the Service Women’s Action Network (SWAN), the American Civil Liberties Union (ACLU) Women’s Rights Project, and the ACLU of Connecticut, the clinic submitted and then litigated a number of FOIA requests. See Serv. Women’s Action Network v. U.S. Dep’t of Def., 888 F. Supp. 2d 282 (D. Conn. 2012); Ser. Women’s Action Network v. U.S. Dep’t of Def., 888 F. Supp. 2d 231 (D. Conn. 2012). Records released as a result of the FOIA litigation revealed widespread discrimination by the VA against veterans suffering from PTSD as a result of MST, as well as radical geographic variation in the outcome of MST claims depending on the happenstance of the veteran’s state of residence. Students analyzed the data and wrote a report presenting their findings for SWAN and the ACLU. Battle for Benefits: VA Discrimination Against Survivors of Military Sexual Trauma (SWAN & ACLU 2013).
Furthermore, in 2013, students prepared and filed a petition for rulemaking on behalf of SWAN and the VA, requesting that the VA issue revised regulations for the adjudication of MST-based claims. When the VA ignored the rulemaking petition, students filed suit in the U.S. Court of Appeals for the Federal Circuit. This suit prompted the VA to deny the rulemaking petition, prompting the clinic to file a second suit in the Federal Circuit challenging the denial as a violation of the Administrative Procedure Act and Fifth Amendment equal protection principles. SWAN v. McDonald, No. 14-7115 (Fed. Cir. filed Aug. 7, 2014). Students also recruited public interest law organizations and private firms to organize and file four amicus briefs in support of SWAN and the VVA.
Fighting for Marriage Equality
The clinic helped disabled Navy veteran Carmen Cardona gain a landmark change in policy that had repercussions all the way to the White House.
In 2011, Cardona’s application for spousal benefits was denied by the Hartford VA Regional Office because she had married a woman. The office cited the federal statute defining a spouse as a member of the opposite sex. In response, students from the clinic filed an appeal on her behalf to the Board of Veterans’ Appeals, and then to the U.S. Court of Appeals for Veterans Claims.
When General Eric Shinseki, secretary of the VA, announced that the VA agreed the discriminatory statute at issue in the Cardona case violated equal protection, the Bipartisan Legal Advisory Group of the U.S. House of Representatives intervened to defend the statute, represented by former Solicitor General Paul Clement. In response, clinic students mobilized a wide array of amici. Clinic students briefed and argued a collection of procedural motions, Cardona v. Shinseki, 2012 WL 3264497, No. 11-3083 (Vet. App. Aug. 13, 2012), and briefed the merits. On the eve of argument, however, the court stayed argument pending disposition of the Windsor litigation in the Supreme Court of the United States.
Following the Supreme Court’s decision in Windsor, Senator Richard Blumenthal (’73) called for immediate action to grant equal rights and spousal benefits to all veteran couples.
In September 2013, the Obama administration announced that the Department of Veteran Affairs would begin providing spousal benefits to same-sex veteran couples. The change in policy will allow same-sex spouses of service members to receive health care benefits and will allow widows and widowers to receive survivor benefits.
Promoting Employment of Veterans
In spring 2013, the Connecticut General Assembly established the 2013 Task Force to Study the Use of MOS Specialty Training as a Substitute for State Licensing Requirements to examine ways in which the state might promote veteran employment by better crediting military training and experience in professional and occupational licensing. “MOS” stands for military occupational specialty, or military job classification.
The MOS Task Force held multiple public meetings, at which clinic students presented their analysis of the various state agency licensing regimes, as well as best practices from other recent state reforms. Students then drafted the MOS Task Force’s detailed final report, which was unanimously adopted by the task force members. The final report recommended extensive reforms to state licensing procedures to credit military training and experience more fully, as well as to grant temporary licenses to spouses of active-duty military personnel stationed in Connecticut and award additional academic credit at Connecticut public colleges and universities.
At the same time, a different group of clinic students completed an analysis of state records for the Connecticut Veterans Legal Center (CVLC) and released Denying Credit: The Failure to Transition Troops to Civilian Employment (CVLC 2013). This report was the first analysis of the military job classifications of the veteran residents of any state.
The report, based on data obtained from the Connecticut Department of Veterans Affairs, identifies the most common MOSs for veterans residing in Connecticut who separated from the Air Force, Army, Marines, or Navy since September 11, 2001, known collectively as “Gulf War II veterans.” Denying Credit finds that the military training of many Connecticut veterans could satisfy state requirements for occupational and professional licenses. The report also finds that veterans in many of the largest MOS groups in Connecticut face some combination of steep labor market competition, low wages, and anemic growth in the fields for which their military training has prepared them.
Following their work on the MOS Task Force and the CVLC report, in spring 2014, clinic students represented the CVLC in a legislative campaign to enact the reforms detailed in the MOS Task Force report and supported by the CVLC’s own data analysis. Students researched, drafted, negotiated, testified on behalf of, and advocated for passage of comprehensive legislation. In June 2014, Connecticut Governor Dannel Malloy signed into law House Bill 5299, a sweeping piece of veterans employment legislation that enacts many of the reforms recommended by the task force and that will ease the transition from war to the workforce for Connecticut’s 250,000 veterans.
Two years earlier, in a prior state legislative initiative, the clinic also represented the CVLC and succeeded in getting a bill passed to help state veterans charged with low-level criminal offenses avoid incarceration and get back on the right track.
Deportation of U.S. Veterans
Clinic students represented Arnold Giammarco, who moved to the United States in 1960, when he was four years old, served honorably in the U.S. Army and Connecticut National Guard, and was deported to Italy in 2012 after living lawfully in Connecticut for more than fifty years. In 1982, Giammarco filed a naturalization application, which the government never finished processing. In 2011, while his application was pending, U.S. Immigration and Customs Enforcement arrested Giammarco, illegally detained him without bond for nearly a year and a half, and then deported him to Italy based on old shoplifting and possessory drug convictions.
In November 2013, the clinic filed a federal lawsuit to compel the government to decide his 1982 citizenship application. In June 2014, it submitted a pardon application to the Connecticut Board of Pardons and Paroles and an application for humanitarian parole to the U.S. Department of Homeland Security.
The Veterans Legal Services Clinic continues to work for veterans’ rights, buoyed by the cases won and laws passed, and motivated by goals not yet reached.
The clinic has inspired career paths in its students. “Learning by doing in the Vets Clinic has been, by far, the most important, transformative, and fun part of my law school experience,” said V Prentice (’15). “My three semesters of work in the Vets Clinic taught me that I not only have what it takes but also a strong desire to build a career centered around impact litigation and related advocacy.” Emma Kaufman was equally passionate about her experiences with the clinic: “The Veterans Legal Services Clinic has been the highlight of my law school experience. In under a year, I have represented a client before a military tribunal, compiled a benefits application, filed motions in a national class action lawsuit, testified in a legislative hearing, and drafted a statute that became law.”
The work of the clinic has brought veterans’ rights out of the shadows and will continue to help bring justice to those who fought for our country.
Keywords: litigation, access to justice, Veterans Legal Services Clinic, Yale Law School, VA
Michael Wishnie is the Deputy Dean for Experiential Education and William O. Douglas Clinical Professor of Law at Yale Law School.