Military Law Archives - Columbia Law Review

Introduction Mr. Gonzalez served in the U.S. Army from 2000 to 2014 as a motor transport operator, or truck driver.[footnote]See Memorandum from Mr. Gonzalez to the Convening Gen. of the U.S. Army Recruiting Command 1 (Mar. 5, 2013) (on file with the Columbia Law Review ). The author supervised students representing Mr. Gonzalez (an actual client whose name has been changed to protect confidentiality) while serving as the Director of the Bob Parsons Veterans Advocacy Clinic at the University of Baltimore School of Law. Prior to founding the clinic, the author served as an officer in the U.S. Air Force Judge Advocate General’s Corps for more than ten years, where he litigated military discharge cases both for and against the Air Force.[/footnote] During his first deployment to Iraq, Mr. Gonzalez led multiple convoys that were struck by improvised explosive devices (IED), mortars, and small arms fire.[footnote]Id.[/footnote] After witnessing the deaths and injuries of fellow soldiers in these attacks, he returned from Iraq and began experiencing symptoms of depression, anxiety, and sleep disturbances, and he sought counseling from the Army.[footnote]Id.[/footnote] He was diagnosed with major depressive disorder and referred to a psychotherapy program.[footnote]Memorandum from an Attending Psychiatrist, Trauma Recovery Program, Walter Reed Nat’l Mil. Med. Ctr., to the Record 1 (Feb. 24, 2014) (on file with the Columbia Law Review ).[/footnote] His symptoms worsened, and he was subsequently diagnosed with post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) and was prescribed antidepressants.[footnote]See Memorandum from Mr. Gonzalez, supra note 1, at 1. Mr. Gonzalez began experiencing increased nightmares, startle response, and irritability. Memorandum from an Attending Psychiatrist, supra note 4, at 2.[/footnote] Despite knowing that Mr. Gonzalez suffered from depression and alcohol dependence related to his PTSD and TBI, the Army deployed Mr. Gonzalez twice more during his career, exposing him to additional IED blasts and trauma.[footnote]Memorandum from Mr. Gonzalez, supra note 1, at 1.[/footnote] The incident that led to Mr. Gonzalez’s discharge occurred three years after his last deployment. He was arrested on post for driving while intoxicated with his son in the vehicle and was charged under the Uniform Code of Military Justice (UCMJ).[footnote]See id. The UCMJ is a federal law that codifies military criminal offenses. 10 U.S.C. §§ 801–946 (2018). Mr. Gonzalez was charged with various UCMJ offenses, including (1) driving while under the influence of alcohol; (2) driving while under the influence of alcohol while transporting a minor; (3) failure to transport a child under age sixteen in a seat belt; and (4) operating a motor vehicle with the operator not restrained by a seat belt. See id. § 913.[/footnote] Mr. Gonzalez accepted an “Article 15,” an administrative forum for addressing violations of the UCMJ, and was found guilty by his unit commander.[footnote]10 U.S.C. § 815. Article 15 of the UCMJ authorizes commanders to hear evidence, make findings of guilt, and punish servicemembers without a trial by court-martial. Servicemembers have the right to decline Article 15 adjudication and demand trial by court-martial.[/footnote] The Army subsequently discharged him for the misconduct and issued an other-than-honorable (OTH) discharge, despite his severe history of PTSD and TBI and his successful completion of three deployments.[footnote]Certificate of Release or Discharge from Active Duty, U.S. Dep’t of the Army (Aug. 2009) (on file with the Columbia Law Review ).[/footnote] The criminalization of Mr. Gonzalez’s mental health condition effectively terminated his chances of receiving medical treatment in service for his PTSD or TBI and reduced his chances of obtaining Department of Veterans Affairs (VA) healthcare after service.[footnote]Letter from U.S. Dep’t of Veterans Affs. to Mr. Gonzalez (Mar. 7, 2015) (on file with the Columbia Law Review); see also 38 C.F.R. § 3.12(c)(6) (2020) (“However, if a person was discharged or released by reason of the sentence of a general court-martial, only a finding of insanity . . . or a decision of a board of correction of records established under 10 U.S.C. 1552 can establish basic eligibility to receive Department of Veterans Affairs benefits.”).[/footnote] More importantly, it discounted his medical condition and characterized his service such that it would create lasting barriers to employment, education, housing, healthcare, and other critical aspects of civilian life. Unfortunately, Mr. Gonzalez’s case is not unique. In 2017, the Government Accountability Office (GAO) reported that 62% of servicemembers discharged from service for misconduct between 2011 and 2015 had been diagnosed with PTSD, TBI, or some other mental health disorder within the two years preceding their discharges.[footnote]Randall B. Williamson, U.S. Gov’t Accountability Off., GAO-17-260, DOD Health: Actions Needed to Ensure Post-Traumatic Stress Disorder and Traumatic Brain Injury Are Considered in Misconduct Separations 12 (2017) [hereinafter GAO Discharge Report]. According to the report, the military separated the servicemembers for minor misconduct including drug use, absenteeism, and insubordination. Id. at 6.[/footnote] Of those who were discharged, 23% received an OTH discharge and 70% received a “general” discharge.[footnote]Id. at 14. A general discharge signifies separation with a lesser degree of honor than an honorable discharge. The discharge is given when “faithful service is marred by negative aspects of a person’s duty performance or personal conduct, but the negative aspects definitely outweigh the good.” U.S. Dep’t of the Air Force, Instr. 36-3208, Administrative Separation of Airmen, para. A3.3. (2019) [hereinafter AFI 36-3208].[/footnote] The GAO concluded that servicemembers with mental health issues were being disproportionately discharged with OTH or general discharges, collectively referred to as “less-than-honorable (LTH) discharges,” without due consideration of their mental health statuses.[footnote]See GAO Discharge Report, supra note 11, at 31.[/footnote] Statistically, Mr. Gonzalez’s skin color also likely played a role in his discharge. In June 2020, the House Armed Services Committee Military Personnel Subcommittee held a hearing where a GAO official testified that servicemembers of color were twice as likely to face courts-martial as white servicemembers and were more likely to face nonjudicial punishment.[footnote]Racial Disparity in the Military Justice System—How to Fix the Culture: Hearing Before the Subcomm. on Mil. Pers. of the H. Armed Servs. Comm., 116th Cong. (2020), (statement of Brenda Farrell, Dir., Def. Capabilities and Mgmt. Team, U.S. Gov’t Accountability Off.); U.S. Gov’t Accountability Off., GAO-20-648T, Testimony Before the Subcomm. on Mil. Pers., Comm. on Armed Servs., H.R., Military Justice: DOD and the Coast Guard Need to Improve Their Capabilities to Assess Racial Disparities 19 (2020) [hereinafter GAO Racial Disparity Report] (statement of Brenda S. Farrell, Dir., Def. Capabilities and Mgmt.); see also National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, § 540I, 133 Stat. 1198, 1369–71 (2019) (directing the Secretary of Defense to report the race, ethnicity, and gender of the victim and the accused in courts-martial, to establish criteria to determine when data indicating racial disparity should be further reviewed, and to take action to remedy racial inequality in the military legal system).[/footnote] In response to these statistics, top officials in the Air Force and Army testified that determining the causes of the racial disparities would require further exploration.[footnote]See Barry K. Robinson & Edgar Chen, Déjà Vu All Over Again: Racial Disparity in the Military Justice System, Just Sec. (Sept. 14, 2020), https://www.justsecurity.org/72424/ deja-vu-all-over-again-racial-disparity-in-the-military-justice-system/ [https://perma.cc/EV4 6-BMZ4] (“Despite these jarring statistics, the GAO testified that it was not in a position to determine whether these figures were the result of unlawful discrimination.”).[/footnote] The tone-deaf responses from senior Department of Defense (DOD) officials echoed a DOD study that had reached the same conclusion some fifty years earlier.[footnote]See id. (noting that, in 1972, a task force commissioned by President Richard Nixon found that inadequate educational advancement opportunities and lack of diversity in the leadership corps drove racial disparities in the military justice system). Recent events, too, underscore the problem of institutionalized racism in the military. On January 6, 2021, a mob of President Donald Trump’s supporters invaded the U.S. Capitol, resulting in the death of five Americans. Among the mob of violent and armed protesters were military veterans with training and expertise, some in full tactical gear, who played an instrumental role in the attack on elected officials, including the Vice President, while Congress was engaged in carrying out its constitutional duties. See, e.g., Air Force Vet Photographed in Capitol Riot Arrest in Texas, Mil. Times (Jan. 10, 2021), https://www.militarytimes.com/ news/your-military/2021/01/11/air-force-vet-photographed-in-capitol-riot-arrested-in-texas/ [https://perma.cc/L8YL-Z7Y9] (reporting that retired Air Force Lt. Col. Larry Randall Brock, Jr. was charged in the District of Columbia on one count of entering or remaining in a restricted building without lawful authority and one count of violent entry on Capitol grounds); Michael Biesecker, Jake Bleiberg & James Laporta, Capitol Rioters Included Highly Trained Ex-Military and Cops, AP News (Jan. 15, 2021), https://apnews.com/article /ex-military-cops-us-capitol-riot-a1cb17201dfddc98291edead5badc257 [https://perma.cc/ LQ4D-5CGN]; Rob Kuznia & Ashley Fantz, They Swore to Protect America. Some Also Joined the Riot, CNN (Jan. 15, 2021), https://www.cnn.com/2021/01/12/us/military-extremism-capitol-riot-invs/index.html [https://perma.cc/PY6L-2J5Q]. A 2019 Military Times survey of its readers found that more than one-third of active-duty troops and half of servicemembers of color had personally witnessed examples of white nationalism or racism in recent months. See Leo Shane III, Signs of White Supremacy, Extremism Up Again in Poll of Active-Duty Troops, Mil. Times (Feb. 6, 2020), https://www.militarytimes.com/ news/pentagon-congress/2020/02/06/signs-of-white-supremacy-extremism-up-again-in-poll-of-active-duty-troops/ [https://perma.cc/MSC2-M5NX] (describing examples of white nationalist or ideologically driven racism such as swastikas drawn on servicemembers’ cars, stickers supporting the Ku Klux Klan, and Nazi-style salutes between individuals); see also Kim Hjelmgaard, Secret Audio Recordings Detail How White Supremacists Seek Recruits From Military, Police, USA Today (Oct. 15, 2020), https://www.usatoday.com/story/news/ 2020/10/15/splc-releases-audio-how-neo-nazi-group-recruits-military-police/3661460001/ [https://perma.cc/9F2R-NCC4]; Military, Veterans, and Society Program, Virtual Roundtable: A Conversation on Race in the Military, Ctr. for a New Am. Sec. (Sept. 23, 2020), https://www.cnas.org/events/virtual-roundtable-a-conversation-on-race-in-the-military [https://perma.cc/TF64-Y4NP].[/footnote] The cycle of injustice, then, is that servicemembers are promised benefits and, once enlisted, exposed to serious health hazards such as PTSD, TBI, and other mental health disorders.[footnote]See generally Lisa K. Richardson, B. Christopher Frueh & Ronald Acierno, Prevalence Estimates of Combat-Related Post-Traumatic Stress Disorder: A Critical Review, 44 Austl. & N.Z. J. Psychiatry 4, 5, 15 (2010) (reporting that the prevalence of combat-related PTSD in U.S. military veterans since the Vietnam War ranges from about 2% to 17%). The prevalence of PTSD among servicemembers and veterans is difficult to determine due to underreporting and differences in diagnosing, sampling, and measurement strategies. See id. at 12 (attributing the considerable variability in the results of the study to differences in sampling strategies and measurement strategies). Generally, the rate of PTSD among veterans varies by military conflict. Id. at 2 (listing findings of PTSD prevalence rates among veterans of the Vietnam War, Gulf War, and conflict in the Middle East). According to one major study of Vietnam veterans, 15.2% of male veterans and 8.5% of female veterans suffered from PTSD at the time of the 1988 study. Richard A. Kulka, William E. Schlenger, John A. Fairbank, Richard L. Hough, B. Kathleen Jordan, Charles R. Marmar & Daniel S. Weiss, Trauma and the Vietnam War Generation: Report of Findings From the National Vietnam Veterans Readjustment Study 52 (Routledge 2013) (1990). Researchers estimated 30.9% of males and 26.9% of females had suffered from PTSD at some time in their lives. Id. at 53. According to the VA, in any given year, about 11% to 20% of veterans from Operation Iraqi Freedom, Operation Enduring Freedom, and Operation Desert Storm (the Gulf War) receive a PTSD diagnosis. How Common is PTSD in Veterans?, PTSD: Nat’l Ctr. for PTSD, U.S. Dep’t of Veteran Affs., https://www.ptsd.va.gov/understand/common/common_ veterans.asp [https://perma.cc/UN9T-K989] (last visited July 27, 2021). Moreover, PTSD is more prevalent in the military population than in the general population. See Posttraumatic Stress Disorder, Nat’l All. on Mental Illness, https://www.nami.org/About-Mental-Illness/ Mental-Health-Conditions/Posttraumatic-Stress-Disorder/ [https://perma.cc/2BAF-BFSJ] (last visited July 27, 2021) (noting that PTSD affects about 3.6% of the U.S. adult population).[/footnote] When they exhibit symptoms related to these illnesses in the form of misconduct, they are drawn into the military legal system. Statistics show that this is twice as likely to happen to servicemembers of color than to white servicemembers.[footnote]GAO Racial Disparity Report, supra note 14, at 15.[/footnote] Involvement in the military legal system is then used as a basis for discharge and recorded as an LTH discharge in official records, creating a lifelong stigma of dishonorable service for the veterans.[footnote]See Dana Montalto, Bradford Adams, Barton Stichman & Drew Ensign, Veterans Legal Clinic, Legal Servs. Ctr. of Harvard L. Sch., Underserved: How the VA Wrongfully Excludes Veterans With Bad Paper 2–3 (2016), https://uploads-ssl.webflow.com/5ddda3d7 ad8b1151b5d16cff/5e67da6782e5f4e6b19760b0_Underserved.pdf [https://perma.cc/6R UB-TG49] [hereinafter Veterans Legal Clinic, Underserved] (“In 2013, VA Regional Offices labeled 90% of veterans with bad paper discharges as ‘Dishonorable’—even though the military chose not to Dishonorably discharge them.”). PTSD receives much media attention, though veterans suffer from other war-related mental health disorders as well. PTSD symptoms often coexist with depression, anxiety, and substance use. Symptoms usually begin within three months after experiencing a traumatic event, but symptoms may occasionally emerge years later. Posttraumatic Stress Disorder, supra note 17. Because of the potential latency of PTSD symptoms, a servicemember could be diagnosed with depression and anxiety during service but not develop or manifest the full symptoms of PTSD until after discharge. A related but separate problem involves the discharge of servicemembers for “personality disorders,” which do not qualify for VA disability compensation. Between 2001 and 2015, more than 31,000 servicemembers were separated with a personality disorder designation. See Joshua Kors, Investigative Reporter Alissa Figueroa Exposes Stunning Flaws in Veterans’ Benefits System, HuffPost (Dec. 29, 2014), https://www.huffpost.com/entry/ investigative-reporter-al_b_6382880 [https://perma.cc/4QS2-93TU] (last updated Dec. 6, 2017).[/footnote] Much has been written about the collateral consequences of criminal convictions that prevent individuals with criminal histories from becoming productive members of society.[footnote]See, e.g., James B. Jacobs, The Eternal Criminal Record 226 (2015) (“Employment discrimination has always made it especially difficult for an ex-convict to avoid resorting to crime as a necessary means of survival.”); Margaret Colgate Love, Jenny Roberts & Wayne A. Logan, Collateral Consequences of Criminal Convictions: Law, Policy and Practice §§ 1.11–1.12 (2018–2019 ed.) [hereinafter Love et al., Collateral Consequences] (describing the legal and reputational collateral consequences of criminal convictions); Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Incarceration, 160 U. Pa. L. Rev. 1789, 1818 (2012) [hereinafter Chin, The New Civil Death] (arguing that civil death, an obsolete form of civil punishment, has reemerged in the form of a change in legal status of persons involved in the criminal legal system); Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. Rev. 457, 459 (2010) [hereinafter Pinard, Collateral Consequences] (stating that individuals with criminal histories are confronted with a range of collateral consequences including ineligibility for public housing, welfare benefits, student loans, and employment opportunities).[/footnote] Less well understood, however, are the collateral consequences of LTH discharges that create barriers to obtaining healthcare, disability compensation, education, housing, employment, and other transitional necessities for veterans.[footnote]See John W. Brooker, Evan R. Seamone & Leslie C. Rogall, Beyond “T.B.D.”: Understanding VA’s Evaluation of a Former Servicemember’s Benefit Eligibility Following Involuntary or Punitive Discharge From the Armed Forces, 214 Mil. L. Rev. 1, 11–12 (2012) (“The military, through its discharge process, is creating huge handicaps to readjustment and reintegration into society by limiting the possibility of care and failing to at the least stabilize these warriors before their rough ejection.”); Liam Brennan, How Veterans Affairs Denies Care to Many of the People It’s Supposed to Serve, Wash. Post (Nov. 8, 2019), https://www.washingtonpost.com/outlook/how-veterans-affairs-denies-care-to-many-of-the- people-its-supposed-to-serve/2019/11/08/2c105b48-0183-11ea-9518-1e76abc088b6_story.html [https://perma.cc/sn7f-755d] (“These former service members [discharged as other than honorable] are often excluded from VA health care, from VA housing if they are homeless, from VA benefits payments even if they’re disabled by their service and from the educational supports provided to other veterans.”).[/footnote] This Essay adds to the discourse on military discharges by examining the collateral consequences of discharge characterizations through a criminal law lens.[footnote]Recent scholarship on discharge review has focused on the service departments’ failure to apply favorable standards of review for veterans with PTSD and TBI who are seeking discharge upgrades. See, e.g., Jessica Lynn Wherry, Kicked Out, Kicked Again: The Discharge Review Boards’ Illiberal Application of Liberal Consideration for Veterans With Post-Traumatic Stress Disorder, 108 Calif. L. Rev. 1357, 1387 (2019). Scholars have also criticized VA’s exclusionary eligibility criteria for receipt of veterans’ benefits. See, e.g., Bradford Adams & Dana Montalto, With Malice Toward None: Revisiting the Historical and Legal Basis for Excluding Veterans From “Veteran” Services, 122 Penn St. L. Rev. 69, 134 (2017).[/footnote] This Essay argues that while discharges are technically administrative actions, they have been doing the work of criminal convictions in the military for some time. Since World War II, the lines between administrative action and criminal punishment have become increasingly blurred.[footnote]See Stephanie Smith Ledesma, PTSD and Bad Paper Discharges: Why the Fairness to Soldiers Act Is Too Little, Too Late, 10 Elon L. Rev. 189, 227 (2018) (noting that commanders commonly circumvent constitutional protections of servicemembers by using administrative discharges to remove troops from service).[/footnote] Today, veterans who are disciplined through either process continue to be punished long after service through the collateral consequences of their military service.[footnote]See Brooker et al., supra note 21, at 40 (describing the story of a veteran who was denied access to medical care more than five years after receiving an other-than-honorable discharge).[/footnote] In this way, they share a hardship experienced by people involved in the criminal legal system. The movement to limit the collateral consequences of criminal arrests and convictions has much to offer military justice. Part I of this Essay provides an overview of the current law, regulations, and policy governing the military discharge system. It also discusses the military’s increasing use of administrative discharges in lieu of courts-martial to address minor misconduct. Part II examines the collateral consequences of criminal convictions, their disproportionate effects on communities of color, and their invisible role in the criminal legal system.[footnote]See Gabriel J. Chin, Collateral Consequences, in 4 Reforming Criminal Justice: Punishment, Incarceration, and Release 371, 372 (Erik Luna ed., 2017) (explaining that the negative consequences for people convicted of a crime are perpetuated by being labeled as a criminal and subjected to collateral consequences even after release from incarceration).[/footnote] It examines recent advances at the state and local level to ease the undue weight and burden that criminal convictions place on individuals. It then draws lessons from these advances to argue that the collateral consequences of military discharges, which are strikingly similar to those of criminal convictions, must be addressed, and their disproportionate effect on disabled veterans eliminated. Part III explores solutions to the military’s collateral consequences problem, analyzing efforts by DOD to adopt a clemency approach to discharge review, and examines other proposals to adopt a more redemptive approach to collateral consequences. This Essay concludes that a multifaceted approach is necessary, and it must include the codification of DOD’s clemency guidance, broader access to VA benefits for veterans with LTH discharges, and statewide efforts to reduce the effects of discharge characterizations on employment.

Military Law

DISCHARGED AND DISCARDED: THE COLLATERAL CONSEQUENCES OF A LESS-THAN-HONORABLE MILITARY DISCHARGE

ORTIZ AND THE PROBLEM OF INTRABRANCH LITIGATION