The Many Small Victories of the #Fairness4Vets Coalition in 2016

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Senator Peters (podium) introduced the Senate version of the Fairness for Veterans Act in May 2015, with Senators Tillis and Daines. In September 2016 he speaks in front of the Capitol about the importance of including the Fairness for Veterans Act into the next Defense Bill.

“You’re going to need an act of congress to fix that.” It’s one of those sayings that people in the military and veterans communities have casually used to describe the monumental task of fixing that which they perceive to be broken in the Department of Defense. For veterans suffering from something like PTSD, TBI or MST, who are being discharged without access to benefits like mental healthcare, moving that mountain can feel impossible. But in 2016, a tremendous coalition of military and veteran service organizations combined forces to help these forgotten veterans start to find justice. Thanks to that “Fairness for Veterans Coalition,” these veterans have one act of congress that’s going to help.

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A group of veterans, led by Kristofer Goldsmith, on Capitol Hill in January. He received a less-than-honorable discharge. When he petitioned for an upgrade of it because of undiagnosed PTSD, the Army rejected his appeal. Credit: Stephen Crowley/The New York Times

Earlier this year, five veterans from across the country descended on Washington with a mission: to share the human cost of bad-paper discharges for veterans suffering from the invisible wounds of war. Two of them had been issued bad-paper after being diagnosed with PTSD after returning home from combat, the other three had lost friends to suicide who had suffered the same fate.

These veterans came to bring back to life a forgotten provision of the Suicide Prevention for American Veterans Act first introduced by Congressman Tim Walz, years earlier. The provision that would become known as the Fairness for Veterans Act had been shaved out of the original suicide bill because of Congress’ concerns about the financial cost of providing care and benefits to its most vulnerable warriors. Senator Peters, these veterans discovered, had attempted to get the provision into last year’s defense bill — but struggled to gain traction.

These veterans found allies both on the Hill and around the country. Military and Veterans Service Organizations committed early to lending support behind the Fairness for Veterans movement, helping to educate members of congress and the general public about the tens of thousands of veterans who had been stripped of honorable discharges despite suffering from the wounds of war:

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March 2, 2016: Veteran Service Organizations informing congress that they are united behind the issue of helping veterans with PTSD who have been denied benefits.

A coalition led by the Post-9/11 Veterans who had been elected to congress soon formed, and the Fairness for Veterans Act was introduced to the House with 11 original cosponsors:

When Swords to Plowshares and Human Rights Watch unveiled detailed reports about the human cost of denying veterans who have suffered from PTSD, TBI and MST from the honorable discharges that they deserve, the support for the Fairness for Veterans Act grew even greater. Booted told the stories of men and women who were raped while in the military, and the horrifying statistics revealing that many were retaliated against for reporting sexual assault. Underserved showed that the Department of Veterans Affairs had been denying healthcare to veterans who by law should be eligible, and that nearly 10% of Marines serving since 9/11 had been discharged with bad-paper.

Thanks to the dedicated efforts of this entire coalition, we’ve achieved many small victories this year. But more must be done to help those who have already been left behind.

That’s why Vietnam Veterans of America is calling on Congress to hold hearings on bad-paper discharges, so that they can fully explore the issue.

Here are the reforms that are on President Obama’s desk, waiting to be signed, according to Sara Darehshori of Human Rights Watch:

1) Sexual assault victims will now have to get a medical exam to check for PTSD or mental health issues before an administrative separation. (This protection was given to combat veterans earlier so that people whose misconduct might be related to a mental health condition are not administratively separated with no access to benefits instead of medically separated when appropriate) (Sec. 524)

2) Whistleblower protections (sec. 531):

a. Prohibited personnel actions (actions considered reprisals) now include failure of a superior to respond to retaliatory action or harassment (of which the superior had actual knowledge) taken by one or more subordinates against a member and conducting a retaliatory investigation. (These were added to place the burden on supervisors to stop peer harassment of victims and also because we had heard about command initiated investigations after a report of sexual assault that seemed to be retaliatory. The language was watered down a bit in the next section to allow commanders to consult with their superiors on disposition of collateral misconduct — but that would be a defense against a retaliatory investigation so it seems a commander may have to seek approval for an investigation from a superior before doing it which will hopefully be discouraging.)

b. If the IG finds a proposed personnel action is likely retaliation and will cause immediate hardship to the service member, the IG will promptly notify the secretary who will take appropriate action (the idea of this action was to provide protections to service members during the investigation — so for example if they were reassigned inappropriately, they don’t have to wait two years for a determination that the assignment was retaliation)

c. Every 180 days, the IG has to tell the complainant how the investigation is progressing and how much time is left

d. BCMRs when looking at whistleblower cases “shall consider a request for a hearing”

e. Within a year the IG has to develop uniform standards for investigating reprisal claims and then has 180 days to implement the standards

3) The Secretaries can no longer overrule an IG determination that reprisals occurred, need to send IG reports to the BCMR, report to the IG on personnel action taken on complaints (which will then be included in the IG report to Congress) (Sec. 532)

4) BCMR reporting: BCMRs are required to report quarterly on line the number of claims considered, including the number of PTSD cases considered, whether applicants served in a contingency operation, and the number of records corrected, including upgrade requests. The Discharge Review Boards are also required to publicly make available each quarter the number of motions or requests for review considered (including mental health/PTSD/TBI cases), the number of applicants who were deployed and the number of upgrades granted. (Sec. 533)

5) BCMR improvements (Sec. 534)

a. BCMRs must notify applicants if they have supplied insufficient documentation and also make efforts to obtain records for the claimant if they have not been able to get them. (This is because veterans have had a hard time getting records and have had their cases closed as a result.)

b. BCMRs must accept any applications for reconsideration no matter when filed if they contain new information (The Army had a one year limit on requests for reconsideration).

c. Final BCMR decisions must be made public on a website

d. Board members must be trained under a uniform curricula addressing areas of administrative law applicable to their duties. They must be trained every five years. New and existing members must be trained within 90 days of the development of a curricula. The secretaries must report back to congress about implementation of training (we have talked to the services informally about training on sexual assault and were told that would be included).

6) Fairness for veterans (Sec. 535) — The Discharge Review Boards must give liberal consideration to upgrade requests in cases where an applicant claims misconduct was a result of PTSD or TBI stemming from sexual assault or combat.

7) The Government Accountability Office has been asked to assess the DOD IG to see if it is effective (Sec. 536). (Unfortunately the change in burden of proof did not happen, though Congress says “they intend to remain seized” of this matter so hopefully this report will open the door to a later change)

8) Retaliation

a. The Sexual Assault Prevention and Response Office (SAPRO) is now required to report on complaints of retaliation and the status of investigation into those complaints (Sec. 543)

b. SAPRO must also establish metrics to evaluate efforts by the services to respond to retaliation and develop best practices to be used in to prevent and respond to retaliation against those who report sexual assault (Sec. 545)

c. DOD personnel who investigate retaliation have to be trained on nature and consequences of retaliation and the nature and consequences of sexual assault trauma (Sec. 546)

d. Complainants must be notified of the results of investigation into retaliation (Sec. 547)

e. Retaliation is criminalized in the UCMJ (Sec. 5450)

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