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Servicemember Discharge Characterizations, Why They Matter, and How You Can Help

David F Addlestone

Servicemember Discharge Characterizations, Why They Matter, and How You Can Help Productions

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The Military Discharge Upgrade Legal Practice Manual, written by attorneys from the Legal Services Center of Harvard Law School’s Veterans Legal Clinic and Connecticut Veterans Legal Center, is a comprehensive guide to representing veterans with less-than-honorable or otherwise stigmatizing discharges before military review boards. This landmark publication—the first of its kind in 30 years—serves as a desktop reference for anyone interested in advocating for veterans, restoring honor to those who have served, and opening doors to life-altering support.

The Manual is intended to equip and inspire attorneys to commit to pro bono work on behalf of veterans facing these unfair discharges, which disproportionately affect veterans who experienced trauma (such as combat trauma and military sexual trauma), mental health conditions or medical conditions (such as post-traumatic stress disorder and traumatic brain injury), or discrimination (such as discrimination based on race, sex, and LGBTQ+ status). 

The following is an edited and abridged excerpt from the preface of the Military Discharge Upgrade Legal Practice Manual.

Since its inception, the US armed forces have been assigning characterizations to servicemembers’ discharges when they are separated from the service, but only since World War II have so many servicemembers received stigmatizing and sometimes unjust, less-than-honorable discharges with such severe consequences. The rate of veterans with less-than-honorable discharges has been climbing since World War II, through the Vietnam War, and to the present day. In the post-9/11 era, the armed forces discharged servicemembers with less-than-honorable discharges at higher rates than ever before.

A Less-Than-Honorable Discharge Inflicts Harm

A less-than-honorable discharge imposes actual harm on veterans. Not only is there shame and stigma associated with a less-than-honorable status, but the status also may be a real or presumptive barrier to access needed veteran services. Currently, 6.5 percent of veterans who have served since 2001 are denied access to primary benefits offered by the Department of Veterans Affairs (VA) because of Other Than Honorable or other less-than-honorable discharge characterizations. This means that numerous recent veterans—including many who have served in combat operations or endured hardship deployments—are cut off from critical VA services, such as medical and mental health care, housing support, and educational benefits.

Significant Long-Term Effects

The reasons for this dramatic increase in less-than-honorable discharge rates are varied, but there is no denying that less-than-honorable discharges have significant, long-term effects on a population of veterans greatly in need of support. In the post-9/11 era, a more significant percentage of servicemembers have deployed multiple times, with fewer and shorter breaks between deployments, than previous generations. This has contributed to high rates of Post-Traumatic Stress Disorder, Traumatic Brain Injury, and mental health conditions that are known to contribute to conduct leading to a less-than-honorable discharge. With an increased understanding of these conditions, it has become clear that many servicemembers—both in this era and prior eras—have been discharged less than honorably due to circumstances related to unresolved and untreated mental health conditions incurred during service.

Denial of Benefits

These veterans are often denied access to benefits and services from the VA and face significant challenges transitioning back to civilian life. In addition to the personal and social shame of a less-than-honorable discharge, veterans with less-than-honorable discharges are more likely to be unemployed or underemployed, lack access to appropriate health care, experience isolation from peers and family, develop substance abuse and mental health challenges, and suffer poor physical health. Veterans with less-than-honorable discharges are more likely to have mental health conditions and are twice as likely to commit suicide. They are more likely to be homeless and involved with the criminal justice system. In short, veterans with less-than-honorable discharges are especially in need of the benefits often denied to them.

Correction of Unjust Discharges Remains Low

Despite the high rates of less-than-honorable discharges, the rates at which the military review boards charged with correcting unjust or unlawful discharges grant relief have remained low. The overall rate is usually in the single digits and has been for the past few decades. One reason for this low rate is the lack of available and reliable information about the discharge upgrade process. Veterans and their advocates do not know how to properly present a case to the military review boards to convince them to act favorably. Many applicants are not even sure to whom to address their applications or that more is needed than to fill out the small boxes on the one-page application forms for the board. Moreover, very few practitioners know discharge upgrade law, and even fewer are willing to offer pro bono representation to the disproportionately low-income population of less-than-honorably discharged veterans.

There is much that we, as advocates, can do to correct these issues.

Discharge Upgrade Advocacy Today

We are now in a renaissance of discharge upgrade advocacy. In this post-9/11 era, there is renewed attention on the needs of returning servicemembers, including those who have less-than-fully honorable discharges. This attention to our newest generation of veterans has forced a reconsideration of how our nation treated—or failed to treat—earlier generations of veterans, especially those who served during the Vietnam war. New organizations have been formed, and new resources made available to meet veterans’ needs. Legal aid organizations, law school clinics, and private pro bono attorneys have all stepped up to address the pressing need for discharge upgrade advocacy and have already achieved some stunning victories for veterans’ rights.

One Step Forward . . .

As in all social justice endeavors, there’s no progress without significant setbacks. But, through relentless advocacy and stubborn hope, we can ensure that the arc continues to bend toward justice.

At the beginning of my career, during the Vietnam era, if I had asked someone what types of military discharges there were, the answer would likely have been “honorable or dishonorable.” In today’s all-volunteer force, when fewer than 1 percent of the US population serves in uniform, that answer is all the more likely—despite decades of litigation, legislative advocacy, and public outreach to increase understanding.

There has been significant progress since my early days despite the continued shroud of secrecy and misunderstanding regarding the military and discharge upgrades. New DoD policies have (sometimes only in theory) created more veteran-friendly Discharge Review Board and Boards for Correction of Military Records review standards; advances in medical knowledge have delivered a new understanding of—and life-saving treatments for—the psychological impacts of service; and the slow erosion of prejudice has produced a more inclusive military.

A Few Shocking Facts

  • Approximately three million less-than-fully honorable discharges were issued from 1941 to today.
  • From 1962 to 1975, more than 750,000 less-than-fully honorable discharges were issued.
  • In World War II, one out of eight servicemembers were defendants at a court-martial.
  • In the first years of the post-9/11 era, “bad paper” was issued to one out of seven servicemembers. It has been at a rate of 15.2 percent for the past several years.
  • Disparate and arbitrary discharge characterization across the various service branches and commands persists.

Veterans Need Volunteer Advocates

In such a climate, I cannot overly stress the need for volunteer advocates to aggressively represent bad paper veterans saddled with a lifetime of economic, social, and self-worth stigmas. These are real people—many of whom endured the horrors of war and all of whom bore the burdens of military service. We must work together to ensure that every veteran wrongfully assigned a less-than-fully honorable discharge obtains a full and fair review before the boards and the upgraded discharge that fully recognizes what was earned by service to our country.

This is an edited and abridged excerpt from the Military Discharge Upgrade Legal Practice Manual by Margaret Kuzma, Dana Montalto, Elizabeth R Gwin, and Daniel L Nagin. Reprinted with permission. Copyright 2021 by the American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The ABA Military Pro Bono Project—managed by the ABA Standing Committee on Legal Assistance for Military Personnel (LAMP)—accepts case referrals from military attorneys on behalf of junior-enlisted, active-duty military personnel facing civil legal issues, and it works to place these cases with pro bono attorneys. The Project is also the platform for Operation Stand-By, through which military attorneys and other pro bono attorneys may seek attorney-to-attorney guidance.