In the last 10 years, around 100,000 veterans have received characterizations of service that are not honorable. These characterizations range from General Under Honorable Conditions to Dishonorable, which is a characterization for serious crimes. This is a characterization from a courts-martial judge. Many of these veterans with bad paper have a characterization of service of Other Than Honorable. This characterization bars the veteran from GI Bill benefits to health care. The VA can perform its own administrative review and determination. The Department of Defense and the VA are separate agencies, and in many cases – not all cases, but most – the VA can make an independent determination and declare that veteran eligible for benefits. So, there are two tracks for addressing the problem. The first is through the Department of Defense (DOD) administrative process at the respective service discharge review board or the service’s board of correction for military records. The second track is to file an application with the VA and appeal an adverse decision. There are some statutory bars to benefits, and the VA does not have any discretion to award benefits when a statutory bar applies.
But, in a lot of cases, the VA can use its administrative authority to help. In a four part series last week, National Public Radio broadcasted reports about this problem. One Iraq-Afghanistan veteran went to a Michigan VA medical facility seeking treatment; but, he was turned away without any kind of formal process. There was no written denial or rejection. This is frustrating for veterans advocates. A process exists to appeal VA benefits claim rejections, but without a written denial, there is no record upon which to base an appeal. This is an important point, because it is a matter of due process.
The four part series did a great job by identifying the fundamental issue: does the country owe this class of vets something for just having gone to war in the first place? A lot of people can reasonably disagree on the answer to this question; but, it seems that due process (enshrined in the Constitution) is something we can all agree upon. No matter how an individual decides to answer that question (whether yes or no) it seems fair that a veteran with bad paper should have some venue, that does not have a foregone conclusion, available to make his or her argument. Every case is different, and important decisions deserve due process — decisions like denying very important health care or vocational rehabilitation services. The decisions should be made on a case by case basis, but the problem with large government agencies – whether Army, Navy, Air Force, Marines, DOD, or VA – is that these agencies operate under federal administrative law. Federal administrative law is based on regulations, often poorly written. Common law, on the other hand, is a kind of system that develops doctrines over the course of time in which case by case decisions are made. It is better at making normative decisions about individuals than a regulatory based system with has too many gaps into which individuals can fall.
At our firm, we see this all the time with veterans who have bad paper. Their service history has facts that created a set of circumstances that simply did not neatly fit neatly into a regulatory category for discharge. So, the command decided to take the expedient and effective way out – discharge for the convenience of government, discharge for a personality disorder, discharge in lieu of courts-martial (this happens when the service has a particularly aggressive prosecutor), misconduct discharge. Many times the veteran was young (very young, sometimes not even 20 years old), and may have received bad advice. Different circumstances and situations are – literally – in the magnitude of tens of thousands.
In any event, everyone can probably agree (no matter how they answer the question posed by the four part series) that a process that is flexible enough to account for differences should exist in lieu of the arguably too rigid system that operates today. Additionally, the VA should – arguably – provide each veteran who is denied health care or other benefits a written determination. This happens pretty regularly with some lines of VA benefits – compensation and vocational rehabilitation especially – but in the health care arena, a written denial is rare. The best guess is that the healthcare community is not prepared to issue decisions because its mission is medical, not legal or administrative.
Legal Assistance for Veterans’ Claims and Appeals
At Bosley and Bratch, we routinely take the time to consult, without any charge, with veterans who have “bad paper.” If you need help supporting a claim or an appeal for VA disability compensation, call our lawyers for veterans at (800) 953-6224 or complete our free online veterans disability case evaluation form.
To read or listen to the four part series, feel free to visit the National Public Radio website, www.npr.org.