The Veterans Law and Benefits Blog

The Lewis B. Puller, Jr. Veterans Benefits Clinic

Author: veterans (page 2 of 8)

From the Barracks to the Bench: A Brief Look at the History of Veterans on the Supreme Court

Written by William & Mary Student Scott Krystiniak

With the recent passing of Justice Antonin Scalia,[1] the makeup of “the highest court in the land” became subject to considerable change. Unsurprisingly, most discussion on the topic of Justice Scalia’s replacement on the Court concerned which President would appoint the next justice and what ideological or political tendencies that next justice might have.

Merrick Garland is now in line to take up Justice Scalia’s seat; however, his nomination is still pending Senate confirmation. But no matter who ultimately fills the vacant position, one fact remains. The last six years marks the longest period in the history of the Supreme Court in which no sitting justice has any active, wartime military service.

When former Justice John Paul Stevens resigned from the Court in 2010, his retirement marked only the second time in history that no sitting United States Supreme Court justice had any active, wartime military service.[2] Moreover, the first time this phenomenon occurred was in 1937 and lasted only briefly.[3]

Despite a recent paucity of active, wartime military experience,[4] a look back through the history of the Court shows a significant military presence spanning four centuries.[5]

Military veterans who actively served have been a staple on the Court since its inception. After the American Revolution, military servicemembers who once led on the battlefield also found leadership roles on the Supreme Court. Associate Justice James Wilson, who served as a Brigadier General during the Revolution, was appointed to the Court by President George Washington after the Court came into existence under the Judiciary Act of 1789.

At the turn of the Nineteenth Century, John Marshall led the Court as Chief Justice and would hold the position for over three decades. Although he is mostly celebrated as the shepherd of judicial review,[6] John Marshall also served under the command of George Washington in the Continental Army.

Later in the Nineteenth Century, Civil War veterans also transitioned into roles with the Court.  For example, famed Associate Justice Oliver Wendell Holmes, Jr. fought in numerous battles for the Union forces, including Wilderness and Antietem. His theories on legal realism and legal positivism were said to be profoundly influenced by his experiences in the Civil War.[7]

Meanwhile, Associate Justice William Burnham Wood’s abolitionist views inspired him to leave a position with the Ohio state legislature to join the Union side as a lieutenant colonel. Stanley Mathews also left a public service position when he joined the Union Army after resigning from his position as a United States Attorney in Ohio.

The Twentieth Century continued the trend of servicemembers with active, wartime experience taking on positions with the Court. Prior to his career as an Associate Justice and a long tenure in executive positions, Frank Murphy fought in World War I as a Captain in the U.S. Army. Furthermore, former Chief Justices Fred Vinson and Earl Warren also served the Army during World War I.

The late Twentieth and early Twenty-First Century saw the rise of World War II veterans in the Court. Associate Justice Byron White received two Bronze Stars for his role as an intelligence officer in the United States Navy in the Pacific Theatre. His peer on the Court, Lewis F. Powell, Jr., also served as an intelligence officer in the Army and spent the wartime in England and North Africa. John Paul Stevens, meanwhile, received a Bronze Star for his service as a cryptographer with the Navy. His code-breaking team helped bring down the Japanese military leader responsible for the bombing of Pearl Harbor.

Altogether, over one third of all Supreme Court justices served in the military with the majority of those serving in times of war.[8]  Such ubiquity likely has many causes, including the simple fact that the United States has engaged in numerous conflicts both home and abroad.[9]

However, military servicemembers are also an important demographic that lends both great experience and diversity to any group or organization, including the highest court in the land. These individuals are known for their resilience, discipline, focus, strategic orientation, and motivation.[10] They can use their skills and diverse experience to add considerably, especially to a group of Supreme Court justices with otherwise startlingly similar credentials.[11]

In addition to these advantages, a wartime veteran justice would also fulfill a large void in the Court. Journalist Andrew Cohen wrote that the “The Court’s lack of any connection to military service is emblematic of the larger disconnect between our military personnel and the public officials who both send them off to war and then greet them when they return.”[12] Military leadership at the Supreme Court would do well to repair such a disconnect.[13]

With Merrick Garland’s nomination still pending and many of the other justices likely nearing retirement, the Supreme Court has ample room for change. A justice with considerable military experience would be a welcome addition. History tells us this much.

 

 

[1] Sincerest condolences are due to the family and friends of the late United States Supreme Court Justice Antonin Scalia. Looking beyond any ideological and political beliefs, Justice Scalia served the Court and this nation with unwavering ardor. His devotion to and time spent in public service is nothing short of admirable.

[2] Andrew Cohen, None of the Supreme Court Justices Has Battle Experience, The Atlantic (Aug. 13, 2012), http://www.theatlantic.com/national/archive/2012/08/none-of-the-supreme-court-justices-has-battle-experience/260973/.

[3] Id.

[4] Justice Anthony Kennedy briefly served in the California Army National Guard. Justice Samuel Alito, a ROTC candidate during college, enlisted in the Army Reserves in 1972. Justice Stephen Breyer also was briefly in the Army, as an undergraduate in 1957.

[5] This post does not provide a complete list of justices who served in the United States military. A complete report on Supreme Court Justices with military experience can be found in: Susan Navarro Smelcer, Cong. Research Serv., R40802, Supreme Court Justices: Demographic Characteristics, Professional Experience, and Legal Education, 1789-2009 (2009) available at http://fpc.state.gov/documents/organization/132310.pdf.

[6] See Marbury v. Madison, 5 U.S. 137 (1803).

[7] Oliver Wendell Holmes, Jr., The Common Law (Brown and Company, 1st ed. 1881).

[8] See Susan Navarro Smelcer, supra note 5, at 24-26.

[9] Id.

[10] Kerrie MacPherson, From the Battlefield to the Corner Office: Five Reasons Why Veterans Make Great Business Leaders, Huffpost Impact (Nov. 18, 2013, 10:48 AM), http://www.huffingtonpost.com/kerrie-macpherson/veterans-business-leaders_b_4296186.html; Drew Greenblatt, 10 Reasons to Hire a Veteran Today, Inc. (Nov. 11, 2014), http://www.inc.com/drew-greenblatt/ten-reasons-to-hire-a-veteran-today.html.

[11] Currently, all eight of the sitting justices were judges prior to their nomination to the Court. They also all attended either Harvard or Yale for Law School. Akhil Reed Amar, Clones on the Court, The Atlantic (Apr. 2015), http://www.theatlantic.com/magazine/archive/2015/04/clones-on-the-court/386252/.  Merrick Garland is no exception. He attended Harvard as both an undergraduate and a law student.

[12] Andrew Cohen, supra note 2.

[13] Id.

 

Battling Infertility: Reconsidering the VA’s In Vitro Fertilization Ban

Written by William & Mary Law Student Brooke Shaffer

Veterans are entitled to medical benefits necessary to restore “the quality of life . . . that has been lost due to illness or injury” during service. [1] But this promise rings empty for veterans with service-connected reproductive injuries hoping to start a family. In vitro fertilization (IVF) is one of the few procedures not covered by the VA, joining elective cosmetic surgery and spa memberships as one of the handful of explicit exclusions designated by federal regulation.[2]

Due to the nature of current military conflicts, particularly combatants’ reliance on improvised explosive devices (IEDs), the need for IVF assistance is greater than ever before.[3] Even if soldiers manage to avoid major external injuries, the force of IED blasts can damage testicles’ sperm production and the fallopian tubes.[4] Between 2000 and 2013, nearly 2,000 service members suffered debilitating injuries to their genitals.[5] An additional 307,000 experienced brain injuries that can render sex physically impossible or destroy one’s sex drive.[6] Thousands more have received spinal-cord injuries with a similar impact on reproductive ability.[7]

With nearly half of all enlisted personnel under the age of twenty-six, many of these injuries strike veterans in their reproductive prime.[8] The sudden inability to conceive can be a psychologically devastating blow for veterans already struggling to adapt to life-altering combat injuries.[9] This may be further compounded by marital strain as spouses cope with the realization that they may not be able to have the family they’d envisioned.

Unlike veterans, active-duty service members returning home from combat with genital injuries currently have access to IVF.[10] However, they must undergo the treatments before separating from the military.[11] For couples navigating the initial stages of recovery, it is often survival—not family planning—that is the priority. As a result, although the Department of Defense began covering IVF for wounded soldiers in 2012, only twenty service members have taken advantage of the policy. [12] By the time a couple is ready to try for children, the veteran has likely already been discharged and had his health care transferred to the VA. The narrow window to receive IVF treatment may close before a couple is even aware that a disparity between Tricare and VA coverage exists.

The VA’s ban was first adopted nearly a quarter of a century ago, when IVF was still a new treatment.[13] As fertility technology has improved and become more mainstream, many of the safety concerns behind the initial ban no longer hold true.[14] However, questions about affordability and effectiveness remain valid. The average cost of a single round of IVF is $12,400,[15] and less than half of these procedures are successful, even when performed on healthy women.[16] The price tag of covering fertility treatments through the VA would total more than $500 million over four years.[17] However, options for balancing the budget and veterans’ needs do exist, such as limiting the number of IVF attempts per couple.

In addition to budget concerns, abortion politics often underlie conservative opposition to reform in Congress. Because some unused embryos may be discarded after treatment, coverage of the procedure has become controversial.[18]

As a result, multiple bills to overhaul the VA fertility treatment policy have died in Congress, including the latest attempt last year.[19] The proposal would have covered IVF treatments, as well as adoption and surrogacy, and would have been funded through a reallocation of combat operations spending.[20] Conservatives in the Senate blocked the legislation, citing the need to first address other problems at the VA, such as the patient backlog.[21]

But treatment for these wounded veterans should not be politicized or trivialized. Tricare’s coverage of the procedure indicates a real need for the procedure, which cannot be automatically dismissed when an individual’s status changes from active-duty to veteran. Furthermore, veterans’ entitlement to medical care includes treatment for mental and emotional, as well as physical, wounds. If a service-connected injury has jeopardized a veteran’s dream of having a family, the government is obligated to offer the best treatment available to remedy this loss.

Currently the VA only covers fertility counseling and a few older, less advanced procedures such as intrauterine insemination, which uses a catheter to insert semen into the uterus.[22] While this method helps some veterans conceive, it is often physically impossible for those with IED-related injuries, such as damaged fallopian tubes.[23] IVF, which combines the egg and sperm in a laboratory before transfer to the uterus, is often the only way couples can bypass this obstacle to conception.[24]

For the next few months, private providers are helping partially close the gap in coverage. Fertility clinics across the country are offering discounted IVF services to wounded veterans in an effort to motivate Congress to take action.[25] The campaign will run until the VA ban on IVF is lifted or the 2016 legislative session ends.[26]

In the long term, the most effective solution absent Congressional action may be to improve proactive efforts to combat infertility. In January 2016, the Department of Defense unveiled a new initiative to offer sperm and egg freezing to active-duty service members preparing for deployment to combat zones.[27] Completing this initial step in the IVF process before any injury occurs could reduce the pressure to make immediate family planning decisions and lower costs of the procedure even after leaving the Tricare system. But with the average eighteen-year-old recruit lacking the foresight to plan for a future family, any long-term strategy to assist veterans with infertility must eventually address the VA’s IVF ban.

 

[1] 38 C.F.R. § 17.38 (2011).

[2] Id.

[3] Emily Wax-Thibodeaux, What Veterans Affairs Won’t Pay For: Chance For the Wounded to Have Kids, Washington Post (May 25, 2015), https://www.washingtonpost.com/politics/for-combat-veterans-va-ban-on-ivf-coverage-adds-insult-to-injury/2015/05/25/a5ae2940-fd8b-11e4-833c-a2de05b6b2a4_story.html.

[4] Senate Bill Would Expand Fertility Coverage for Veterans, Fox News (Aug. 18, 2012), http://www.foxnews.com/politics/2012/08/18/senate-bill-would-expand-fertility-coverage-for-veterans.html.

[5] Patrica Kime, D.C. Conference to Focus War Wounds’ Impact on Sex and Intimacy, Military Times (Dec. 8, 2014), http://www.militarytimes.com/story/veterans/2014/12/08/sex-intimacy-combat-injuries-war-wounds/20100725/.

[6] Id.

[7] Wax-Thibodeaux, supra note 2.

[8] Patricia Kime, Military’s New Fertility Benefit Will Let Troops Freeze Their Sperm and Eggs, Military Times (Jan. 29, 2016), http://www.militarytimes.com/story/military/benefits/health-care/2016/01/29/militarys-new-fertility-benefit-let-troops-freeze-their-sperm-and-eggs/79511918/.

[9] Supra note 3.

[10] Wax-Thibodeaux, supra note 2.

[11] Id.

[12] On Veterans Day Please Urge your Member of Congress to Co-Sponsor HR 2257, Ending the Ban on IVF at the Dept. of VA, Am. Soc’y for Reproductive Med. (last visited Feb. 28, 2016), http://capwiz.com/asrm/issues/alert/?alertid=68505626&queueid=%5Bcapwiz:queue_id%5D.

[13] Id.

[14] Id.

[15] Is In Vitro Fertilization Expensive?, Am. Soc’y for Reproductive Med. (last visited Feb. 28, 2016), https://www.asrm.org/detail.aspx?id=3023.

[16] Charlotte Alter, Pentagon Offers Egg-Freezing, But What If Women Are Drafted?, TIME (Feb. 5, 2016), http://time.com/4207779/egg-freezing-pentagon-army-draft-women/.

[17] Cong. Budget Office, S. 131, Women Veterans and Other Health Care Improvements Act of 2013, available at

https://www.cbo.gov/publication/44514.

[18] Quil Lawrence, For Fertility Treatment, Wounded Veterans Have To Pay The Bill, NPR (Feb. 17, 2016), http://www.npr.org/sections/health-shots/2016/02/17/467073198/for-fertility-treatment-wounded-veterans-have-to-foot-the-bill.

[19] Wax-Thibodeaux, supra note 2.

[20] Id.

[21] Lawrence, supra note 19.

[22] Alexandra Zavis, Badly Wounded Veterans Lobby for Fertility Treatment, L.A. Times (Dec. 14, 2012), http://articles.latimes.com/2012/dec/14/local/la-me-veterans-fertility-treatment-20121215.

[23] Id.

[24] Id.

[25] Serving Our Veterans: Discounted Fertility Treatments for Wounded Warriors, American Society for Reproductive Medicine (Nov. 10, 2015), http://www.asrm.org/IVF4VETS_Serving_Our_Veterans/.

[26] Id.

[27] Kime, supra note 7.

High Suicide Rates in Recent Non-deployed Veterans

Written by William & Mary Law Student Tom Sandbrink

It has become fairly well known that suicide rates are higher among recent veterans than the civilian population when other factors such as age, gender, etc. are controlled for.[1] Conventional wisdom has attributed this to differences in the length and number of deployments in comparison to prior wars.[2] In addition, improved medical treatment and better protective gear has allowed servicemembers to survive combat situations that previously would have resulted in death,[3] but these situations have still left mental scars which, if left untreated, can be just as devastating as the physical injuries.

A recently published study in the Annals of Epidemiology has called the conventionally believed causes of higher veteran suicide rates into question.[4] The study analyzed the records of 1,282,074 veterans who served in active-duty units between 2001 and 2007 and then left the military during that period.[5] The study found that deployment to war zones by itself did not correlate with higher suicide rates in veterans.[6] In fact, it found that rates were just as high if not higher in non-deployed veterans.[7]

In an article covering the study, Michael Schoenbaum, an epidemiologist with the National Institute of Mental Health, was quoted, “People’s natural instinct is to explain military suicide by the war-is-hell theory of the world, but it’s more complicated.”[8] Unfortunately, the study was unable to pinpoint the exact causes behind the higher suicide rates of non-deployed veterans. However, its authors speculated that contributing factors could include the greater medical screening, counseling, and treatment programs available to deployed servicemembers.[9] Similarly, another factor could be that servicemembers who are exhibiting psychological problems are held back from deployment.[10] In 1996 the military began screening soldiers who were deploying and returning from combat zones.[11] As a result, servicemembers who deploy to combat zones are less likely to have a preexisting mental health issue and when they return there is a greater likelihood that mental disorders incurred during deployment will be identified and treated.

Whatever the cause, the study shows that mental health issues are not limited to combat veterans. While exposure to combat increases the risk of PTSD,[12] veterans who do not serve in war zones are still susceptible to mental health issues. Because suicide affects non-deployed servicemembers at similarly high rates, perhaps extending screening policies to non-combat units to better identify individuals suffering from serious mental health issues would help reduce suicide.

 

[1] E.g., Alan Zarembo, Detailed Study Confirms High Suicide Rate among Recent Veterans, L.A. Times (January 14, 2015), http://www.latimes.com/nation/la-na-veteran-suicide-20150115-story.html.

[2] Han K. Kang et al., Suicide Risk among 1.3 million Veterans who were on Active Duty

During the Iraq and Afghanistan Wars, 25 Annals of Epidemiology 96, 96 (2015).

[3] Id.

[4] Id.

[5] Id., at 97.

[6] Id., at 99.

[7] Id.

[8] Zarembo, supra note 1.

[9] Kang, supra note 2, at 99.

[10] Zarembo, supra note 1.

[11] Paul Bliese, et al., Post-Deployment Mental Health Screening Instruments: How Good are They? (2004), www.dtic.mil/cgi-bin/GetTRDoc?AD=ada433073.

[12] U.S. Dep’t of Veterans Affairs, Mental Health Effects of Serving in Afghanistan and Iraq, http://www.ptsd.va.gov/public/PTSD-overview/reintegration/overview-mental-health-effects.asp.

Delayed Care: Colorado VA hospital construction

Written by William & Mary Student Toren Elsen

Currently veterans in Denver are served by a hospital named the Department of Veterans Affairs (VA) Eastern Colorado Health Care System. This facility dates from 1950 and has become dated with age. Replacing this facility with a more state of the art hospital, to better serve the more than 400,000 veterans in Colorado and surrounding states, has been in the works since 2004. However, building this replacement hospital has run into numerous budgetary and timeline overruns. The most current estimate is that the new VA hospital in Aurora will open on January 23, 2018 and cost around $1.67 billion.[1]

This is a far cry from initial plans. At first, in 2004, the new VA hospital was planned to, at least partially, share facilities with the new University of Colorado Hospital being built on the site of the former Fitzsimons Army Medical Center. This hospital had an initial estimated cost of $328 million. However, the American Legion took a hard line stance against shared facilities. Based in large part on this opposition, Colorado’s delegation to Congress also demanded a separate facility.[2] This separate version of the VA hospital was initially forecast to cost $582.8 million and open in February 2014. However, it quickly became apparent that there would be cost overruns. After some tense negotiations the VA and Kiewit-Turner, the contractor building the hospital, agreed to a $604 million budget in a short hand written agreement in 2011.[3] Importantly, though, the agreement required the VA, somewhat vaguely, to “produce a design” that could be built for the $604 million price.[4] Ultimately Kiewit-Turner ended up suing the VA in July 2013, saying that they had breached the contract by failing to produce a design that could be built for the set amount. In December 2014, the U.S. Civilian Board of Contract Appeals agreed with Kiewit-Turner and found that the VA had breached the contract.[5]

The delay caused by this litigation not only extended the timeline and increased the cost of the project, it also hampered efforts to oversee the VA’s handling of the project. In communicating with Congress, the VA routinely refused to answer questions relating to the project due to ongoing litigation. Additionally, efforts by both Representative Mike Coffman (R-CO) and Senator Michael Bennet (D-CO) to get the Office of Inspector General to investigate were refused because of the litigation.[6] Congress was eventually convinced in the Fall of 2015 to provide $625 million additional dollars to complete the project.[7] However, as part of providing these additional funds, Congress mandated that the Army Corps of Engineers replace the VA in overseeing the project.[8] Now under the Corps guidance, it is hoped that the hospital will open four years behind schedule and over a billion dollars over budget. Given the history of this project, it seems far from certain that even these targets will be met.

Hopefully, once it is completed, the hospital will be able to put the problems of its creation in the past, and will provide excellent care for the veterans of Colorado. In the meantime, though, these veterans are forced to use outdated facilities or potentially even travel out of state for services not yet available in Colorado.[9] After securing the additional funding to complete the project, Senator Cory Gardner (R-CO) promised that once open, the hospital will be “the crown jewel of the VA system.”[10] While this will be a great resource for Colorado veterans, it is glosses over the difficulties such a lengthy construction delay burdens Colorado’s veterans with. If the current 2018 opening date is met, that will be a four year overrun. Four years that veterans in Colorado have had it more difficult day to day to get the care they need.

It is also important to note that the VA’s mishandling of this Colorado project is not a singular event. A 2013 report by the U.S. Government Accountability Office found similar problems at VA projects in Las Vegas, Nevada; New Orleans, Louisiana; and Orlando, Florida.[11] Congress is also taking steps to limit the VA’s role in large construction projects that may be beyond their capacity to effectively manage. Just two weeks ago, on February 9th, the House passed the Construction Reform Act of 2016. This Act will make the Army Corps of Engineers play a larger role in any project larger than $100 million and also requires an external audit of the VA’s handling of the Aurora Hospital.[12] In order to provide the best service it can to veterans, the VA needs to have up to date facilities. Hopefully lessons have been learned from the Colorado construction process and new oversight steps will lead to more timely and cost effective VA hospital construction in the future.

[1] Mark Matthews, VA Hospital Delayed Until Early 2018, But New Contract in Place to Finish Facility, Denver Post (Oct. 30, 2015), http://www.denverpost.com/politics/ci_29048377/new-contract-moves-va-hospital-closer-completion.

[2] Mark Matthews, David Olinger & David Migoya, Anatomy of a Calamity, Denver Post (Aug. 9, 2015), http://extras.denverpost.com/aurora-va-hospital.

[3] November 9, 2011 Agreement, https://www.documentcloud.org/documents/2189928-handwritten-agreement.html.

[4] Id.

[5] Electra Draper & Mark Matthews, Contractor Walking Away From VA Hospital in Aurora, Denver Post (Dec. 9, 2014), http://www.denverpost.com/news/ci_27103393/contractor-kiewit-walking-away-from-va-hospital-aurora.

[6] Anatomy of a Calamity, supra note 2.

[7] VA Hospital Delayed, supra note 1.

[8] Id.

[9] Anatomy of a Calamity, supra note 2.

[10] Mark Matthews, Congress agrees to deal to fund VA hospital in Aurora, Denver Post (Sept. 30, 2015), http://www.denverpost.com/politics/ci_28900686/congress-agrees-deal-va-hospital-aurora?source=pkg.

[11] U.S. Gov’t Accountability Office, GAO-13-302, VA Construction: Additional Actions Needed to Decrease Delays and Lower Costs of Major Medical-Facility Projects (2013), available at http://www.gao.gov/products/GAO-13-302.

[12] Construction Reform Act of 2016, H.R. 3106, 114th Cong. (2016).

Remembering FDR’s Forgotten Promise is One Thing; Keeping it is Another

Connor Curran is a 3L and member of the Veterans Clinic at the University of Missouri School of Law

 

Most readers should know that the Court of Appeals for the Federal Circuit (“CAFC”) hears patent appeals, but some readers may be surprised when told that the CAFC also hears, inter alia, appeals from the Court of Appeals for Veterans Claims (“CAVC”).[1]

Palomer v. McDonald, 27 Vet. App. 245 (2015) is a case that was recently decided by the CAVC, which held 2-1 in favor of the Secretary of Veterans Affairs (“VA”).[2]   Mr. Palomer appealed that decision to the CAFC, and the oral argument is scheduled for March 7, 2016. Professor Angela Drake – who runs the Veterans’ Appeals Clinic at the University of Missouri School of Law – will tell Mr. Palomer’s story at oral argument, but I wish to tell you his story today. Before that story can be fully understood though, we must first revisit some of our nation’s history.

On December 7th, 1941, the Japanese Navy initiated the Battle of Pearl Harbor – a battle that resulted in the deaths of 2,403 U.S. soldiers, the injury of another thousand-plus soldiers, and the sinking of 4 out of the 8 battleships operated by the U.S. at the time.[3] December 7th, 1941 was, in fact, a date which would live “in infamy,” as President Roosevelt prophetically proclaimed to Congress the very next day. But if December 7th is infamous because it marks the date that Japan broke the international rules of engagement, then the next day, December 8th, 1941, is infamous as well because it marks the date that Filipino soldiers put their lives on the line in reliance on a promise that, for many, remains unfulfilled to this day.

On December 8th, 1941, only hours after bombing Pearl Harbor, the Japanese commenced an invasion of the Philippines, then a U.S. territory. The Japanese met resistance from active infantry[4] and from guerrilla soldiers; and from 1942-1945, among those guerrillas was one Emilio Palomer, who served in the Walter Cushing Guerrillas.

In 1941, but prior to December 8th, President Roosevelt promised Philippine soldiers U.S. citizenship and full veteran’s benefits should they serve in the United States Army Forces Far East (“USAFFE”). This promise was wildly successful as a recruiting mechanism, although it would later become known as Roosevelt’s forgotten promise to Filipino soldiers, going unfulfilled for over half a century.

After WWII was over, Congress passed the Rescission Act of 1946, defining service by Filipino soldiers serving the USAFFE prior to 1946 as “not . . . active . . . for the purposes of . . . conferring rights, privileges, or benefits upon any person.”[5] It was not until 2009 – over 60 years later – that Filipino soldiers, pursuant to the creation of the Filipino Veterans Equity Compensation Fund (“FVECF”), were allowed to lay claim to the benefits they had been promised and had earned.[6] But, at least for Mr. Palomer, Congress remembering Roosevelt’s broken promise in 2009 is not the same as keeping that promise – equating the two will depend upon the willingness of the CAFC to use its equitable powers to see to it that justice prevails.

Here’s how Mr. Palomer ended up before the CAFC. Mr. Palomer filed a claim to receive benefits under the FVECF between 2009 and 2010, and submitted as proof of his service the following: his certificate of service from the Walter Cushing Guerrillas, his Pledge Form, his Oath of Office, and a Confirmation of Officers and Enlisted Men Record. The Manila Regional Office (“RO”) denied his claim in 2010, relying solely upon the finding of the National Records Personnel Center (“NPRC”) concluding that he did not establish that his service in the Walter Cushing Guerrillas was in the service of the United States Armed Forces.

Mr. Palomer appealed to the Board of Veterans Appeals (“BVA”), who affirmed in 2013. Then, in Tagupa v. McDonald, 27 Vet. App. 95, 98 (2014), the CAVC held that an RO has to check with both the NPRC and the Department of the Army in verifying active service, thus an RO cannot rely on the conclusion of only one of those entities in denying a claim for lack of proof of active service in the United States Armed Forces. Accordingly, Mr. Palomer filed a Motion for Reconsideration, but it was sent 13 days late,[7] and ultimately denied. Mr. Palomer then filed a timely Notice of Appeal with the CAVC.

Before the CAVC, the VA moved to dismiss due to the Motion for Reconsideration being 13 days late. Mr. Palomer argued that equitable tolling should apply because, inter alia, he lives in the Philippines and experiences a mail delay of 2-3 weeks; thus, he received his denial notice at least 13 days late which should make up for the fact that he filed his Motion for Reconsideration 13 days late. Additionally, Mr. Palomer is over 90 years of age and in deteriorating health when it comes to his eyesight and hearing; as such, he relies upon the translation of written communications via a third party.

The CAVC acknowledged that equitable tolling could apply, but found that Mr. Palomer’s circumstances did not allow for it. Specifically, they found that Mr. Palomer failed to show that an “extraordinary circumstance” was present, even though veterans who live in the United States do not ordinarily experience mail delays of 2-3 weeks and even though Mr. Palomer is an elderly WWII veteran who does not speak English and who cannot read without the aid of a translator. On top of that, the CAVC noted that:

[a]lthough the inefficiencies in the delivery of mail between the United States and the Philippines may be a circumstance beyond Mr. Palomer’s control, he fails to assert, let alone demonstrate, that he had an inadequate amount of time to consider his options and timely mail his request for reconsideration.[8]

This language is notable for two reasons. First, the CAVC admits that the mail delay is beyond Mr. Palomer’s control, which matters because the CAVC has held previously that a “common factor in all decisions adopting extraordinary circumstances as a basis for equitable tolling is the requirement that the extraordinary circumstance be beyond the claimant’s control.”[9] Second, the CAVC seems to reason that, even if an extraordinary circumstance was present, Mr. Palomer still lost because he could have overcome the extraordinary circumstance with diligence after the mailing delay.

Now that Mr. Palomer is before the CAFC, he asserts, inter alia, that the CAVC erred as to a matter of law in that the CAVC applied an improper standard of diligence. As Mr. Palomer contends, the CAVC, instead of requiring only that Mr. Palomer show that he was diligent during the period seeking to be tolled – the 2-3 week mailing delay – required that he show that he was diligent throughout the entire 120 day time limit. And indeed, the CAFC has held that the former approach, known as the “stop-clock” approach, is the correct standard of diligence.[11] So it seems as though the CAVC did err but, of course, we will have to wait and see whether the CAFC agrees.

For now, all there is to do is hope that the CAFC chooses justice over deference, because after 60 years of broken promises, it would certainly be unjust and inequitable for Mr. Palomer’s claim to the compensation he earned to be dismissed on a non-jurisdictional technicality of a filing being 13 days late – especially considering his extraordinary circumstances such as his age, deteriorating health, dependence upon a third party for translation of written communications, and the 14 day mailing delay that he experienced but that no veteran living in the United States would have encountered.

After all, it was because of where Mr. Palomer lived – in the Philippines during the Japanese invasion – that the promise of benefits compensation was first made to him; therefore, it should not be because of where he lives that said promise is allowed to continue to remain the very worst kind of promise, broken and unfulfilled.

 

= = = = = = = = = = =

 

[1] The CAVC is an Article I tribunal created by Congress in 1988 to provide judicial review of the Board of Veterans’ Appeals (“BVA”), which is part of the Department of Veterans Affairs (“VA”).

[2] Judge Greenberg dissented against Chief Judge Kasold and Judge Shoelen.

[3] See http://www.nps.gov/nr/twhp/wwwlps/lessons/18arizona/18charts1.htm.

[4] Five months prior to the Japanese invasion of the Philippines, on July 26, 1941, President Roosevelt, suspicious of imminent war with Japan, created the United States Army Forces Far East (“USAFFE”) and issued a Presidential Order calling the Philippine Commonwealth Army into the service of the Armed Forces of the United States. See 6 Fed. Reg. 3825.

[5] See 38 U.S.C. § 107.

[6] See American Recovery and Reinvestment Act § 1002.

[7] 38 U.S.C. § 7266(a) allows a person adversely affected by a decision of the BVA 120 days to file a notice of appeal with the CAVC.

[8] Palomer v. McDonald, 27 Vet. App. 245, 252 (2015).

[9] McCreary v. Nicholson, 19 Vet.App 324, 331 (2005).

[10] Mr. Palomer also contends that the CAVC erred in that it failed to find the mailing delay to be an extraordinary circumstance in contradiction of its precedent and that the CAVC erred in that it failed to find his deteriorating health to be an extraordinary circumstance in contradiction of its precedent.

[11] See Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014).

Murky Waters: VA Updates Policy for Blue Water Veterans of Vietnam

Written by William & Mary student Austin Swink

Many readers of this blog are likely aware that the Blue Water Navy Veterans of the Vietnam War, those who served on ships offshore, have been arguing for a presumption of service-connection for certain diseases and health conditions related to exposure to the herbicide commonly known as Agent Orange.[1] There was some positive change in April 2015, when the U.S. Court of Appeals for Veterans Claims held that the Department of Veterans Affairs’ definitions for what constituted a blue or brown (read offshore or inland) body of water was arbitrary.[2] The court further required the VA to explain how this policy distinction was related to the likelihood that veterans were exposed to herbicides. This month, VA has responded by further supporting its policy of denying a presumption of exposure to Blue Water Veterans. They have also launched a new study of Blue Water Veterans’ Health, and ended the adding of ships and dates to a presumptive list.

VA Denies Blue Water Veteran Exposure

On February 5th, 2016, the VA released a Fact Sheet justifying its policy denying a presumption of Agent Orange exposure for many Blue Water Veterans in the wake of Gray v. McDonald.[4] The Fact Sheet states that VA policy regarding Blue Water Veterans is“[c]onsistent with the decision in Gray.”[5] The Fact Sheet supports the VA’s denial of presumption with the oft cited to Institute of Medicine (IOM) report Blue Water Navy Vietnam Veterans and Agent Orange Exposure (2011).[6] Further, in a FAQ section, the Fact Sheet addresses a number of issues that will be familiar to advocates working with Blue Water Veterans.[7] For instance, The VA counters an Australian study that suggested Blue Water Vets were possibly exposed to Agent Orange. VA reports that, although the IOM validated the methodology of the Australian study, IOM found there was a “lack of evidence regarding the extent of any herbicides in the seawater” that would lead to exposure through the desalination processes aboard Blue Water Navy ships. [9] This was followed in the Fact Sheet FAQ with a rebuttal to the claim that there is new scientific evidence supporting Blue Water Veteran exposure.[10] VA reported that “environmental health experts in VA’s Veterans Health Administration have reviewed the available scientific information and concluded that it is not sufficient to support a presumption.”[11]

New Study of Blue Water Veterans’ Health

Despite the negative news for Blue Water Veterans, there may be something to keep an eye on in 2017. The Fact Sheet reports that VA will conduct a “groundbreaking study” that will collect data and publish analyses, hopefully next year, on the health of Blue Water Veterans.[12] This study is conducted in partnership with Veterans of Foreign Wars, the Vietnam Veterans of America, and Blue Water Navy Vietnam Veterans.[13] In the meantime, all Agent Orange related claims for Blue Water Veterans will continue to be evaluated by VA on a case-by-case basis.[14]

VA Will No Longer Add Ships or Dates to Presumptive List

Recently, VA had been updating a list of ships that VA considers to have served in Vietnam for purposes of extending a presumption of herbicide exposure.[15] However, the February 5th Fact Sheet also presented a change in this policy. This policy change was reflected in a statement at the top of the list of ships on the VA website, and in the VA’s internal adjudication manual, the M-21. The M-21 now states, “VA will no longer add new vessels to the ships list, or new dates for vessels currently on the list, based on entering Qui Nhon Bay Harbor or Ganh Rai Bay or any other offshore waters.”[18] Additionally, the M-21 changed in that a required “criteria of the ship having ‘operated on close coastal waters for extended periods of time’ was changed to ‘sent crew ashore.’”[19] Such a policy change will certainly require advocates to do more investigation into ship histories in order to build a factual record supporting each Blue Water Veterans Agent Orange related claim.

While February 5th was disappointing for Blue Water Veterans, 2017 will hopefully hold more answers if the VA study is published. At present, the best course of action for advocates is to investigate further and press harder for service connection for the Agent Orange related claims of Blue Water Veterans.

 

[1] See Rachel Strubel, Blue Water versus Brown Water Veterans: A long continued debate ripe for resolution, The Veterans Law And Benefits Blog, Oct 16, 2015 at 11:23 AM, http://vetlawandbenefits.org/2015/10/16/blue-water-versus-brown-water-veterans-a-long-continued-debate-ripe-for-resolution/.

[2] Id. (citing Gray v. McDonald, 27 Vet.App. 313 (Vet. App. 2015)).

[3] Id.

[4] Charles Ornstein and Terry Parris, Jr., Veterans Affairs again denies Agent Orange benefits to Navy vets, The Virginian-Pilot, Feb 8, 2016, http://pilotonline.com/news/military/veterans/veterans-affairs-again-denies-agent-orange-benefits-to-navy-vets/article_55e837f4-0607-5bed-aabf-7232b9bd43d0.html.

[5] Office of Public Affairs Media Relations, Fact Sheet: Agent Orange and Presumption of Service Connection: Inland Waterways and “Blue Water” Navy Veterans, Dep’t of Veteran Affairs, Feb 5, 2016, https://assets.documentcloud.org/documents/2706057/Blue-Water-Navy-Fact-Sheet.pdf.

[6] Id. at 1 (citing Institute of Medicine, Blue Water Navy Vietnam Veterans and Agent Orange Exposure, National Academy of Sciences, May 20, 2011, http://iom.nationalacademies.org/Reports/2011/Blue-Water-Navy-Vietnam-Veterans-and-Agent-Orange-Exposure.aspx).

[7] Id. at 3.

[8] Id.

[9] Id.

[10] Id. at 4.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Agent Orange: Alphabetized Ships List, Dep’t of Veteran Affairs, (2016), http://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp.

[16] Fact Sheet supra note 5 at 5.

[17] VA: No new dates, ships for Blue Water Veterans, vetsHQ.com, (2016), https://www.vetshq.com/2016/02/va-new-dates-ships-blue-water-veterans/ (citing http://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp; and M-21, Part IV, Subpart ii, Chapter 1, Section H, Topic 2, http://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#2f).

[18] M-21, Part IV, Subpart ii, Chapter 1, Section H, Topic 2, http://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#2f.

[19] VA: No new dates, ships for Blue Water Veterans, vetsHQ.com, (2016), https://www.vetshq.com/2016/02/va-new-dates-ships-blue-water-veterans/ (citing M-21, Part IV, Subpart ii, Chapter 1, Section H, Topic 2, http://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#2f).

To Eliminate Discrimination, the VA Must Address Female Veterans’ Needs

Written by William & Mary law student Sarah Kowalkowski

In recent decades, The United States Armed Forces and Department of Veterans Affairs have tried to remedy their history of discriminating against serve members that are not white males. Most recently in 2015, Defense Secretary Ashton B. Carter announced that all combat roles will be open to women, and United States Army First Lt. Shaye Haver and Capt. Kristen Griest became the first female graduates of the Army’s competitive and challenging Ranger School.[1] In 2011, President Obama formally ended the “don’t ask, don’t tell” policy that banned openly non-heterosexual individuals from joining the military.[2] Although these policy changes are important and will likely have significant positive effects, minorities still often experience discrimination during and after their period of service. As the Armed Forces continue to implement policies intended to reduce the discrimination faced by women, who make up approximately 15.3% of active-duty service members ,[3] and 11% of veterans,[4] the VA needs to do more for women when they return to civilian life.

In my two semesters as a clinic student, I have heard female veterans express frustration because they felt like they were treated differently than men. In a quote to the New York Times, Kathryn Wirkus, the founder of Women Veterans of Colorado, said, “We are invisible. Women vets come home and we blend back in. . . . We aren’t easily identified by our haircuts or the clothing that we wear. If I walked into a room, nobody would think I was a veteran.”[5] Organizations that work with female veterans, such as the advocacy and assistance group Disabled American Veterans, have also noted that female veterans often do not receive the same levels of care and appreciation as men.[6] Research and statistics indicate that women sometimes require different treatment than men and have different needs as they reintegrate to their lives back home.[7] Although the VA recognizes some of these problems, as its new “I’m One” campaign intended to foster identity and respect for female veterans and encourage more women to self identify as veterans indicates,[8] there is still significant opportunity for progress. In striving to create a system in which all veterans feel equally valued, the VA should pay close attention to and respond to struggles that female veterans face.

The number of homeless female veterans has been growing in part because women face different challenges than men. Many veterans that become homeless face substance abuse or mental illness.[9] Factors such as lack of family housing, difficulty finding well-paying jobs, and military sexual trauma leading to post-traumatic stress disorder are more likely to affect the ability of female veterans to find housing upon their return.[10] Female veterans are more likely to be single parents, but many short-term housing options do not allow families.[11] Although VA statistics indicate that homelessness among veterans has decreased by 36% since 2010,[12] the VA cannot ignore the needs of the female veterans, who are fastest growing group of veterans treated by the VA[13] and the fastest growing segment of the homeless population.[14] To achieve equality among veterans, the VA must ensure that female veterans have the resources they need to thrive.

[1] Matthew Rosenberg & Dave Phillips, All Combat Roles Now Open to Women, Defense Secretary Says, N.Y. Times (Dec. 3, 2015), http://www.nytimes.com/2015/12/04/us/politics/combat-military-women-ash-carter.html.

[2] Elisabeth Bumiller, Obama Ends ‘Don’t Ask, Don’t Tell’ Policy, N.Y. Times (July 22, 2011), http://www.nytimes.com/2011/07/23/us/23military.html.

[3] David Johnson & Bronson Stamp, See Women’s Process In The U.S. Military, Time (Sept. 8, 2015), http://labs.time.com/story/women-in-military/.

[4] Helen Thorpe, The V.A.’s Woman Problem, N.Y. Times (Aug. 15, 2015), http://www.nytimes.com/2015/08/16/opinion/sunday/the-vas-woman-problem.html.

[5] Id.

[6] See generally Women Veterans: The Long Journey Home, Disabled American Veterans (Sept. 24, 2014), https://www.dav.org/wp-content/uploads/women-veterans-study.pdf.

[7] Thorpe, supra note 4.

[8] Elisa Basnight & Patricia Hayes, VA Expanding the Services it Offers to Women, Philadelphia Media Network (Digital), LLC (Sept. 28, 2015, 1:08 AM), http://www.philly.com/philly/opinion/20150928_VA_expanding_the_services_it_offers_to_women.html.

[9] Patricia Leigh Brown, Trauma Sets Female Veterans Adrift Back Home, N.Y. Times (Feb. 27, 2013), http://www.nytimes.com/2013/02/28/us/female-veterans-face-limbo-in-lives-on-the-street.html?pagewanted=all.

[10] Id.

[11] Id.

[12] Homeless Veterans: VA Is Working to End Homelessness Among Veterans, U.S. Dep’t of Veterans Affairs (Jan. 26, 2016), http://www.va.gov/homeless/about_the_initiative.asp.

[13] Thorpe, supra note 4.

[14] Brown, supra note 8.

Serving Those Who Serve: More to be Done to Ease the Transition From Armed Service to Civilian Life for Post-9/11 Veterans

Written by William & Mary Student Mikayla Pentecost

Approximately 2.4 million members of the armed forces have transitioned from military to civilian life between 2001 and 2014 and another million are expected to make the transition within the next 5 years.[i] Among other things necessary to function in civilian life, most of these millions of service members are tasked with the process of entering the civilian labor force and sustaining jobs on their own. Recent federal initiatives have highlighted the need to ease the transition from service to civilian life as a means of combatting many of the problems faced by veterans today such as mental health issues, poverty, and homelessness.[ii] While it is true that the federal government has made strides in helping veterans transition to civilian life in recent years, there is more to be done in that arena to better serve those who have served our

The federal government has responded to the needs of post 9/11 veterans transferring back to civilian life in several ways. The post 9/11 GI Bill has increased the access to education for thousands of veterans.[iii] Additionally, the VA has increased veterans’ access to health care and veteran homelessness has been reduced by a third nationwide.[iv] To help reduce the struggles associated with the transition, the Obama administration oversaw the first redesign of the Military Transition Assistance Program in twenty years.[v] Part of the redesign includes the implementation of professional skills training on certain military bases.[vi] Finally, federal government jobs have been created and opened up for veterans. Between 2009 and 2014, the percentage of veterans in the federal workforce rose from 25.8 to 31 percent.[vii]

Despite the progress made in recent years, veterans are still reporting difficulties transitioning to civilian life. In a 2014 poll of veterans who served in Iraq and Afghanistan, half the veterans surveyed reported that the transition to civilian life was difficult.[viii] Fifty-six percent of the polled veterans reported that the federal government was doing a not so good or a poor job meeting the needs of their generation of veterans.[ix] Despite a high percentage of veterans reporting that they believe they have the skills and education necessary to be competitive in the job market, the unemployment rate of veterans who have served since September 11 exceeds the national unemployment rate. In fact, at the end of 2014, the unemployment rate for post-9/11 veterans was 7.2 percent while the national unemployment rate was 6.2 percent.[x] The fact that veterans made up thirty-three percent of the homeless population in 2010 and there were 200,000 veterans in the prison system at that time is also indicative of the shortfalls in the process of preparing veterans to transition out of military life.[xi]

The higher than average unemployment rate and difficult transition for post-9/11 veterans can be attributed to the conditions and circumstances that exist in the military at the end of their service as well as to the attitudes of the current job market. Veterans leaving military service are speaking a different language than the business managers and leaders who are doing most of the hiring.[xii] There are also misconceptions held in the business world that the military trains veterans only to take orders, not to become leaders, thus, creating less of a willingness to hire veterans for upper level positions.[xiii] Adding to the difficulties in translating their military experience into terms that the civilian marketplace can understand skilled veterans with specialized training and licensing from the military often must become re-certified and licensed at their own expense to do the same or similar jobs in the civilian world.[xiv] There are agencies and a federal task force working to make the licensing process easier for veterans; however, the States that need to adopt legislation and procedures in line with the task force recommendations are slowing the process of change.[xv] For unskilled veterans, the prospects in the civilian workforce are even more daunting because there is a lack of career guidance and transition services available to veterans who do not hold “high-skilled” positions and wish to work in a field outside of policing or security.[xvi] The limited areas of employment assumed to be a good match for veterans often pigeon holes them into fields of work they may not desire, or that have the potential to bring back memories of negative experiences they endured while serving. This is especially so with jobs that often give a preference to veterans, like government agencies such as the TSA hiring veterans for security positions.

It is clear that there needs to be more training for veterans on how to translate the skills and expertise they gained while in the military into lucrative job skills that civilian employers will covet.[xvii] For example, teaching veterans how to construct their resumes to reflect leadership skills that are unique to individuals who have served in the military may help shake the misconceptions that veterans are followers rather than leaders. Additionally, there need to be more career counselors and advisors available to military members at the end of their term of service to offer guidance tailored to the veterans’ interests and career goals. Compared to college students of similar age, young people serving in the military and preparing for transition have a mere fraction of the career services available to them to enable them to conduct an effective job search and transition to civilian life.[xviii] In addition, veteran transition programs are often limited to the end of a service member’s term of service, rather than incorporated earlier in order to give veterans more time to prepare for the civilian marketplace.

There is still more that the government can do for transitioning veterans as well. The federal government should partner more effectively with private institutions that are likely to hire veterans and do more to make a case for veterans being specially qualified in the business sector.[xix] Adding a higher percentage of private sector veteran employees to the already increased numbers of veterans employed in the federal workforce will help reduce the percentage of unemployed post-9/11 veterans bringing the rate more in line with the national unemployment rate. The federal government should also partner more effectively with state and local governments that are geographically closer to the veterans and can do more on a smaller and more personal level to assist veterans with the transition process, to include matching veterans up with civilian employers in their states and localities.[xx] Finally, state governments should become involved in implementing the Obama administration’s Military Credentialing and Licensing Task Force recommendations to streamline the certification process for skilled veterans to secure employment in specialized fields.[xxi] Continuing to reform the processes by which veterans make the transition from military to civilian life will benefit the country by allowing our labor market to tap into the unique and beneficial skillset held by veterans, and will enable our country to continue to improve post-service transition for the men and women who volunteered to serve us.

 

[i] Michele Flourney. We aren’t doing enough to help veterans transition to civilian life. The Washington Post. April 2, 2014, https://www.washingtonpost.com/opinions/we-arent-doing-enough-to-help-veterans-transition-to-civilian-life/2014/04/02/d43189e2-b52a-11e3-b899-20667de76985_story.html.

[ii] Id.

[iii] Id.

[iv] Id.

[v] Gene Sperling. States Step Up to Help Veterans Get Back to Work. https://www.whitehouse.gov/joiningforces/veterans-back-to-work

[vi] Andrew Soergel. Is Enough Being Done to Prepare Veterans for Civilian Jobs? US News. March 20, 2015, http://www.usnews.com/news/articles/2015/03/20/is-enough-being-done-to-prepare-veterans-for-civilian-jobs.

[vii] Beth Cobert. Helping Veterans Transition to Civilian Life. The OPM Director’s Blog. January 14, 2016. https://www.opm.gov/blogs/Director/2016/1/14/Helping-Veterans-Transition-to-Civilian-Life/.

[viii] Michele Flourney. We aren’t doing enough to help veterans transition to civilian life.

[ix] Id.

[x] Andrew Soergel. Is Enough Being Done to Prepare Veterans for Civilian Jobs?

[xi] Lindsay Schmidt, Gaelle Simmonds, and Heather Sulfaro. Problems of Combat Veterans Transitioning to Civilian Life. NCRP eJournal. http://www.ejournalncrp.org/problems-of-combat-veterans-transitioning-to-civilian-life/.

[xii] Derek Turner. Vets Facing Difficult Transition to Civilian jobs. http://www.military.com/veteran-jobs/career-advice/job-hunting/vets-facing-difficult-transition-to-civilian-jobs.html.

[xiii] Michele Flourney. We aren’t doing enough to help veterans transition to civilian life.

[xiv] Gene Sperling. States Step Up to Help Veterans Get Back to Work.

[xv] Id.

[xvi] Andrew Soergel. Is Enough Being Done to Prepare Veterans for Civilian Jobs?

[xvii] Derek Turner. Vets Facing Difficult Transition to Civilian jobs.

[xviii] Andrew Soergel. Is Enough Being Done to Prepare Veterans for Civilian Jobs?

[xix] Michele Flourney. We aren’t doing enough to help veterans transition to civilian life

[xx] Id.

[xxi] Gene Sperling. States Step Up to Help Veterans Get Back to Work.

The first intra-service Veterans Treatment Court is the Army’s Veterans Endeavor for Treatment Support (VETS Court)

Written by William & Mary Law Student Kendall Kemelek

Many military veterans suffer from a number of injuries that are physical, mental, and emotional in nature.[1] These injuries can be either directly or tangentially related to military service.[2] Our society recognizes this correlation in organizations like the Department of Veterans Affairs (VA), which provides proactive care to veterans toward the goal of a better quality of life following the personal sacrifices and at times, the physical, mental, and emotional harms that can be concomitant to military service.[3]

Some issues pertinent to veterans, however, may require a special kind of retroactive attention and assistance from organizations other than the VA. Within the spectrum of illnesses affecting a significant number of veterans are substance abuse and addiction.[4] Generally speaking, persons who use recreational drugs or abuse prescription drugs are more likely to commit crimes.[5] Because military bases are federal property, civilians who commit crimes on a military installation are subject to federal prosecution and penalties.[6] If a veteran were to commit a crime anywhere, including on base, it seems proper that any military service and injury nexus that exists and might have enhanced the likelihood of criminal behavior should receive some judicial consideration when a veteran becomes involved with the justice system.

Civilian entities have long recognized circumstance-based treatment of criminal behavior in other categories. Examples include juvenile courts, existing in many states throughout the U.S. where crimes committed by juveniles are tried separate from the adult court system,[7] and more recently, drug treatment courts purposed for rehabilitation of substance abusers in lieu of or in addition to traditional criminal punishment, such as fees, probation and imprisonment.[8]

The most recent iteration of special courts is the Veterans Treatment Court (VTC).[9] Like juvenile courts and drug treatment courts, veterans courts are specialty tribunals. VTCs are deployed to adjudicate matters involving veterans suspected of criminal conduct who may have acted illegally, but whose physical, mental, and emotional ailments, caused or made worse by reason of military service, may warrant a court’s consideration of extenuating circumstances warranting rehabilitation.[10]

The first Veterans Treatment Court was created in Buffalo, New York in 2008 as “a hybrid drug and mental health court” to “serve[] veterans who are struggling with addiction and / or mental illness by diverting them from the traditional criminal justice system into a specialized veterans court.”[11] Today, jurisdictions throughout the U.S. including Nevada, Texas, California, Minnesota, and New Hampshire employ the Veterans Treatment Court concept.[12]

In this same spirit of supporting veterans, the military itself – specifically, the Army – recently stood up its own Veterans Treatment Court at Fort Hood, Texas.[13] Fort Hood is the second largest Army installation in the world, and outside its gates lives a substantial number of Army veterans who access the post and who could be subject to federal penalty for commission of crime therein.[14] The VETS Court was created so that veterans suspected of misdemeanor offenses on base “such as driving while intoxicated, various types of assaults, property crimes and theft crimes” may, at their own behest, apply for entry into the VETS program that “will work to divert veterans with service-connected mental health or substance abuse disorders out of the court system and into enduring treatment solutions.”[15] VETS “offer[s] community supervision and treatment provided by the Department of Veterans Affairs as a alternative to federal convictions,” and will also set up a mentor-based support group for veterans who suffer from mental health and/or drug abuse.[16]

The Army and Fort Hood’s VETS Court was created in cooperation with the VA and the Western District of Texas, namely Federal Magistrate Judge Jeffrey Manske and U.S attorney for the Western District of Texas, Richard Durbin Jr.[17] Though started just a few months ago, the Army and Fort Hood VETS Court’s efforts could set a precedential alternative on military bases, sending a message that veterans support services should exist in its hallways of justice, too.

The Army’s Judge Advocate General and top lawyer, Lieutenant General Flora Darpino proclaimed her appreciation to the Federal Magistrate Court Program and “Judge Advocates detailed as Special Assistant United States Attorneys” for their role in making possible “the preservation of justice and our commitment to military communities.”[18] The VETS Court, she added, is a “great example of innovation and partnership with local military communities to support our veterans.”[19]

According to the Army’s press release, more information on the Fort Hood VETS Court is available via the Fort Hood Magistrate Court and the Texas Veterans Commission Military Veteran Peer Network.[20]

[1] E.g., Veterans and Military Health, MedlinePlus.Com https://www.nlm.nih.gov/medlineplus/veteransandmilitaryhealth.html#cat79 (last visited Jan. 24, 2016).

[2] See id.

[3] See, e.g., U.S. Dep’t of Veterans Affairs, VA’s Mission, http://www.va.gov/icare (last visited Jan. 24, 2016).

[4] See Office of Nat’l Drug Control Policy, Veterans Treatment Courts Fact Sheet (Dec. 2010) https://www.whitehouse.gov/sites/default/files/ondcp/Facts_Sheets/veterans_treatment_courts_fact_sheet_12-13-10.pdf citing Office of Justice Programs/Bureau of Justice Statistics, Veterans in State and Federal Prison, 2004, U.S. Dep’t of Justice, May 2007. http://bjs.ojp.usdoj.gov/content/pub/pdf/vsfp04.pdf (“The Justice Department’s most recent survey of prison inmates found that an estimated 60% of the 140,000 veterans in federal and state prisons were struggling with a substance use disorder, while approximately 25% reported being under the influence of drugs at the time of their offense.”)

[5] Id.

[6] 18 U.S.C. § 1382.

[7] See, e.g., The History of Juvenile Justice, American Bar Assoc.Org http://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf (last visited Jan. 24, 2016).

[8] See Office of Nat’l Drug Control Policy, Veterans Treatment Courts Fact Sheet (Dec. 2010) https://www.whitehouse.gov/sites/default/files/ondcp/Facts_Sheets/veterans_treatment_courts_fact_sheet_12-13-10.pdf

[9] See id.

[10] Id.

[11] Buffalo Veterans Treatment Court, www.buffaloveterans court.org (last visited Jan. 24, 2016).

[12] Office of Nat’l Drug Control Policy, Veterans Treatment Courts Fact Sheet (Dec. 2010) https://www.whitehouse.gov/sites/default/files/ondcp/Facts_Sheets/veterans_treatment_courts_fact_sheet_12-13-10.pdf

[13] Marcus Floyd, Veterans Court pilot program to start on Fort Hood, Army.mil (Dec. 22, 2015), http://www.army.mil/article/160339/Veterans_Court_pilot_program_to_start_on_Fort_Hood/?from=RSS.

[14] Debbie Stevenson, Who’s the biggest of them all? Fort Hood, Killeen Daily Herald (Nov. 14, 2004, 12:00 PM), http://kdhnews.com/news/texas/who-s-the-biggest-of-them-all-fort-hood/article_10dac495-7183-56dc-ae32-e998d7687556.html.

[15] Marcus Floyd, Veterans Court pilot program to start on Fort Hood, Army.mil (Dec. 22, 2015), http://www.army.mil/article/160339/Veterans_Court_pilot_program_to_start_on_Fort_Hood/?from=RSS.

[16] Id.

[17] Id.

[18] Lieutenant General Flora D. Darpino, Facebook, https://www.facebook.com/39thTJAG (last visited Jan. 24, 2016).

[19] Id.

[20] Marcus Floyd, Veterans Court pilot program to start on Fort Hood, Army.mil (Dec. 22, 2015), http://www.army.mil/article/160339/Veterans_Court_pilot_program_to_start_on_Fort_Hood/?from=RSS.

Presidential Politics: Veterans, VA Reform, and the Campaign Trail

Written by 3rd year Law Student, Michael Collett

Presidential Politics:

Veterans, VA Reform, and the Campaign Trail

 

During the January 14, 2016, Republican presidential debate, Senator Ted Cruz (R- TX) stated “In any Republican primary, everyone is going to say they support the Second Amendment. Unless you are clinically insane, that’s what you say in a primary.”[1] Putting the Second Amendment issue aside, Senator Cruz could have made the exact same statement about Veterans Affairs [VA] issues. Few, if any, political issues are as universally embraced by both the Democrats and Republicans than VA reform and caring for military service members. To ignore this issue, or even worse, to actively campaign against VA reform would be, in the words of Senator Cruz, “clinically insane.”

If each presidential candidate campaigns on behalf of veterans and proposes VA reform, how are voters expected to differentiate between the candidates on this single issue? The following summaries (or lack thereof) are not intended to endorse any particular candidate, but rather to highlight the different methods by which presidential candidates seek to gain votes, and more importantly, assist veterans.

Jeb Bush. Bush unveiled his VA reform plan with “options for care outside the department without cutting funding for VA hospitals and medical staff.”[2] Bush claimed that money needed for such reforms would be appropriated though “cutting excess administrators (not caregivers)”[3] and by reducing “billions of dollars in waste, fraud, and abuse.”[4] This approach would include “more competitive bidding for department contracts and firing poorly performing employees.”[5] Bush expanded his proposal, stating “[a]mple resources exist within the VA budget to improve the quality and scope of care…In other government agencies, common-sense reforms have saved billions. The VA must get its house in order and send savings into improving veteran choice and veteran care.”[6]

Donald Trump. Trump outlined his VA reform plan with: “[t]he guiding principle of the Trump plan is ensuring veterans have convenient access to the best quality care.”[7] Trump makes several proposals, to include a provision that “all veterans eligible for VA health care can bring their veteran’s ID card to any doctor or care facility that accepts Medicare.”[8] Similar to Bush, Trump wants to fire any corrupt and incompetent VA executives while ending waste, fraud, and abuse.[9] Additionally, Trump plans to increase funding for post-traumatic stress disorder, traumatic brain injury, suicide prevention services, veteran job training and placement services, and veteran educational support and business loans.[10]

Hilary Clinton. In addressing VA reform, Clinton stated: “[VA] problems are serious, systemic and unacceptable…They need to be fixed, they need to be fixed now.”[11] However, Clinton took a hard stance against the Republican approach in offering privatized health care, “[a]s we work to improve the VA, I will fight as long and hard as it takes, to prevent Republicans from privatizing [VA health care]…Privatization is a betrayal, plain and simple, and I am not going to let it happen.”[12] Clinton proposes a fix to waitlist problems by combining medical evaluation boards from the Department of Defense and the VA.[13] Additionally, Clinton believes that the backlog of claims can be solved by approving overtime within the VA.[14] While Clinton does not support complete VA privatization, she would endorse a degree of coordination between the VA and insurance providers, allowing some degree privatized healthcare “when it makes sense to do so…[or]…when the VA cannot provide timely access to necessary care.”[15] Like Trump, Clinton plans to solve veteran issues outside of VA healthcare, in particular, an increase in funding for veteran homelessness and expanding the post-9/11 GI bill benefits to veterans and their families.[16]

Bernie Sanders. Clinton’s biggest rival, Sanders, may have the most VA experience of any candidate, as he served as the former Chairman and current member of the Senate Veterans’ Affairs Committee.[17] Through his position, Sanders passed the bipartisan Veterans Access, Choice and Accountability Act.[18] Sanders campaigns on five major points:

  1. Fully fund and expand the VA so that every veteran gets the care that he or she has earned and deserves.
  2. Substantially improve the processing of Veterans’ claims for compensation.
  3. Expand the VA’s Caregiver Program.
  4. Expand mental health service for Veterans.
  5. Make comprehensive dental care available to all Veterans at the VA.[19]

Presumably, Sanders’ plan would continue to expand on the Veterans Access, Choice and Accountability Act, through bipartisan support.

Although Republicans and Democrats may differ in their approach to privatizing (all or some) of VA healthcare, each of the candidates, to include those not listed above, agree that the current status quo cannot remain. Issues such as backlogged claims, appellate decision delays, and poor healthcare treatment threaten the welfare of generations of proud and patriotic veterans. As voters prepare for upcoming primary and general elections, veterans affairs should be one of the issues they consider when exercising their right to vote.

[1] William Saletan, Gun Nuts, Slate (January 15, 2016, 11:30AM), http://www.slate.com/articles/news_and_politics/politics/2016/01/gop_presidential_candidates_have_a_paranoid_fear_of_gun_laws_and_gun_confiscation.html.

[2] Leo Shane III, Jeb Bush unveils VA reform plan for presidential bid, Military Times (January 14, 2016, 1:15PM), http://www.militarytimes.com/story/veterans/2015/08/17/election-2016-bush-veterans/31840449/.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Veterans Administration Reforms That Will Make America Great Again, Donald J. Trump for President, Inc., https://www.donaldjtrump.com/positions/veterans-administration-reforms.

[8] Id.

[9] Id.

[10] Id.

[11] Dan Merica, Hilary Clinton rolls out plan to reform VA, CNN (November 10, 2015, 6:37PM), http://www.cnn.com/2015/11/10/politics/hillary-clinton-veterans-affairs-new-hampshire/.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Caring for our Veterans, Bernie 2016, https://berniesanders.com/issues/caring-for-our-veterans/.

[18] Id. (“The law written by Sanders strengthens the VA health care system by authorizing 27 new medical facilities and by providing $5 billion to hire more doctors and nurses to care for the surging number of veterans returning from wars in Iraq and Afghanistan. It provides incentives to attract young doctors to the VA. It makes it easier for some veterans to see private doctors or go to community health centers, Department of Defense facilities or Indian Health Centers. It expanded VA educational benefits and improved care for survivors of sexual trauma while serving in the military.”)

[19] Id.

Older posts Newer posts