Beyond 'T.B.D.': Understanding va's evaluation of a former servicemember's benefit eligibility following involuntary or punitive discharge from the Armed forces

Author:John W. Brooker - Evan R. Seamone - Leslie C. Rogall
Position:Judge Advocate, U.S. Army - Judge Advocate, U.S. Army - Deputy Assistant General Counsel, Office of General Counsel (OGC), Department of Veterans Affairs (VA), Washington, DC
Pages:8-328
 
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8 MILITARY LAW REVIEW [Vol. 214
I. Introduction
A. The Lost Legion—Wounded Warriors with Bad Paper
Discharges
The number of servicemembers with undiagnosed and untreated
psychological wounds of wars increases with each passing day.1
* Judge Advocate, U.S. Army. LL.M. 2010, The Judge Advocate General’s School, U.S.
Army, Charlottesville, Virginia; J.D., 2003, University of North Carolina at Chapel Hill;
B.A., 1998, Wake Forest University, Winston-Salem, North Carolina. Major Brooker
currently teaches a variety of wounded warrior and veterans law courses at The Judge
Advocate General’s School, U.S. Army. Prior to joining the faculty at The Judge
Advocate General’s School, U.S. Army, Major Brooker held numerous military justice
positions, to include trial counsel, senior defense counsel, and chief, military justice.
Judge Advocate, U.S. Army. LL.M., 2011, The Judge Advocate General’s School,
United States Army, Charlottesville, Virginia; J.D., 2002, University of Iowa College of
Law, Iowa City, Iowa; M.P.P., 1999, School of Public Policy and Social Research,
University of California, Los Angeles; B.A., 1997, University of California, Los Angeles.
Major Seamone writes from the perspective of ten years’ experience in primarily military
justice positions, with his most recent duty ending in 2013 as the Chief of Military Justice
for Fort Benning, Georgia and the U.S. Army Maneuver Center of Excellence.
‡ Deputy Assistant General Counsel, Office of General Counsel (OGC), Department of
Veterans Affairs (VA), Washington, DC. Also currently serving as Coordinator, VA
OGC Disability Counsel Assistance Program (DCAP). J.D., 1999, Rutgers University
School of Law – Newark; B.A., 1996, Rutgers College. Previously served with VA OGC
as Senior Appellate Attorney, 2006-2008, and Appellate Attorney, 2005-2006, and as
Appellate Counsel, Judicial Appeals Office, Disabled American Veterans, Washington,
DC, 2004-2005. Retired as a captain in the U.S. Army Judge Advocate General’s Corps,
and served in various billets with the XVIII Airborne Corps and Womack Army Medical
Center, Fort Bragg, NC, 1999-2004. Ms. Rogall has co-authored this piece in her
personal capacity. The views presented are solely those of the author and do not
represent the views of the Department of Veterans Affairs or the United States
Government.
This article is dedicated to F. Don Nidiffer, Ph.D., and his family. Dr. Nidiffer has
dedicated his life to the exceptional treatment of servicemembers, veterans, and their
families. In addition to forging unprecedented efforts to educate military attorneys about
the treatment needs of wounded warriors, Dr. Nidiffer has been a true friend to the
authors and many at The Judge Advocate General's Legal Center & School, U.S. Army.
We would like to recognize all of the dedicated professionals who made this article
possible, including many who are not listed below. While the content and
recommendations in this article may result in differing opinions, we sincerely thank them
for their guidance, their willingness to be interviewed, and their continued support. We
are grateful to The Honorable Paul J. Hutter, General Counsel, TRICARE Management
Activity and former General Counsel, Department of Veterans Affairs (VA), and Mr.
David Addlestone, Esq., for their assistance and guidance. From VA, Laura Eskenazi,
Esq., Tara L. Reynolds, Esq., R. Randall Campbell, Esq., and Leah Mazar, provided
2012] EVALUATING VA BENEFITS ELIGIBILITY 9
Associated with this general dilemma is the unconfirmed but highly
suspected and logical connection between untreated mental illness and
criminal offenses committed by combat veterans with specialized
training in the art of war.2 Following each combat campaign, some
much appreciated input and assistance. Garry J. Augustine, Joseph A. Violante, Esq., and
Shane L. Liermann from the Disabled American Veterans, and Jeremy Bedford from the
Vietnam Veterans of America, further contributed their valuable insights from the
Veterans Service Organization (VSO) perspective. We also thank Captain Joseph D.
Wilkinson, II and Mr. Charles J. Strong for their editorial assistance. Major Brooker
thanks his wife, Melissa Brooker, and their children, Anna Brooker, Leah Brooker, and
Matthew Brooker for their love, patience, and support. Ms. Rogall expresses love and
gratitude to her husband and the most important veteran in her life, Chad Moos, for his
unconditional support.
1 A RAND study estimates that the rate of “probable” post-traumatic stress disorder
(PTSD) or depression for servicemembers who had served in Operation Iraqi Freedom
(OIF) and Operation Enduring Freedom (OEF) was nearly 20 percent, and that more
than 30 percent of OIF and OEF servicemembers had probable PTSD, depression, or
Traumatic Brain Injury (TBI), or some combination thereof. See TERRI TANIELIAN ET AL.,
RAND CORPORATION, INVISIBLE WOUNDS OF WAR: SUMMARY AND RECOMMENDATIONS
FOR ADDRESSING PSYCHOLOGICAL AND COGNITIVE INJURIES, available at
http://www.rand.org/pubs/monographs/MG720z1. With the reality of delayed onset of
symptoms for many with invisible wounds of war, reported cases represent only the tip of
the proverbial iceberg. See, e.g., BARRY R. SCHALLER, VETERANS ON TRIAL: THE COMING
BATTLES OVER PTSD 17–18 (2012) (using studies to show that delayed onset of
symptoms could account for nearly 700,000 cases of PTSD or major depression
stemming from combat in Iraq and Afghanistan rather than the conservative projection of
400,000 cases).
2 It is not possible to identify a generalized scientifically-tested link, due to differences in
populations surveyed and testing methodologies. See, e.g., SCHALLER, supra note 1, at 4
(discussing difficulties interpreting existing studies because “the populations studied, the
subject of the studies, and the time periods vary among them”); JOANNA BOURKE, AN
INTIMATE HISTORY OF KILLING: FACE-TO-FACE KILLING IN TWENTIETH-CENTURY
WARFARE 145 (1999) (same). However, it is bey ond question that combat trauma has
contributed to later offending in a great many cases. This fact is recognized in official
military publications. Consider this explanation of “Combat Misconduct Stress” in the
Army’s Leader’s Manual for Combat Stress Control:
Positive combat stress behaviors and misconduct stress behaviors are
to some extent a double-edged sword or two sides of the same coin.
The same physiological and psychological processes that result in
heroic bravery in one situation can produce criminal acts such as
atrocities against enemy prisoners and civilians in another. Stress
may drag the sword down in the direction of the misconduct edge,
while sound, moral leadership and military training and discipline
must direct it upward toward positive behaviors.
U.S. DEPT OF ARMY, FIELD MANUAL 22-51, LEADERS MANUAL FOR COMBAT STRESS
CONTROL ¶ 3-12 & fig.3-1 (Sept. 29, 1994). See also U.S. DEPT OF DEF., DEFENSE
10 MILITARY LAW REVIEW [Vol. 214
former servicemembers who have been discharged from the service for
misconduct also suffer from psychological conditions brought about by
combat trauma.3 Despite pleas for immediate intervention to address this
subset of the larger population, rather than study of the issue,4 the
military and the VA continue to encounter difficulty responding to the
HEALTH BOARD, TASK FORCE ON MENTAL HEALTH, AN ACHIEVABLE VISION: REPORT OF
THE DEPARTMENT OF DEFENSE TASK FORCE ON MENTAL HEALTH 22 (June 2007) (citing
post-deployment “complex disinhibitory behaviors,” including, “[d]ifficulty controlling
one’s emotions, including irritability and anger . . ., [s]elf-medication with . . . illicit
drugs in an attempt to return to normalcy [and] reckless/high risk behaviors” as
consequences of “battlefield injury or trauma”). The connection has also become clear
for civilian law enforcement agencies that encounter veterans on a daily and increasing
basis. See, e.g., Major Evan R. Seamone, Reclaiming the Rehabilitative Ethic in Military
Justice: The Suspended Punitive Discharge as a Method to Treat Military Offenders with
PTSD and TBI and Reduce Recidivism, 208 MIL. L. REV. 1, 26 (2011) (discussing the
development of arrest and jail diversion programs in major cities that emerged because of
the link between untreated mental health conditions and their criminal behavior). As the
Army’s Vice Chief of Staff explained in the introduction to the recent “Goldbook
publication,
One of the most important lessons learned in recent years is that we
cannot simply deal with health or discipline in isolation; these issues
are interrelated and will require interdisciplinary solutions. For
example, a Soldier committing domestic violence may be suffering
from undiagnosed post-traumatic stress. He may also be abusing
alcohol in an attempt to self-medicate and relieve his symptoms. The
reality is there are a significant number of Soldiers with a foot in both
camps—health and discipline—who will require appropriate health
referrals and disciplinary accountability.
General Peter W. Chiarelli, VCSA Sends, in U.S. DEPT OF ARMY, ARMY 2020:
GENERATING HEALTH & DISCIPLINE IN THE FORCE AHEAD OF THE STRATEGIC RESET
(second introductory page) (2012).
3 See, e.g., Seamone, supra note 2, at 23–24 (recognizing historical connections in past
wars).
4 See, e.g., Viewpoints on Veterans Affairs and Related Issues: Hearing Before the
Subcomm. on Oversight and Investigations of the Comm. on Veterans’ Affairs, House of
Representatives, 103rd Cong., 2d Sess. 116 (May 4, 1994) (written testimony of Jonathan
Shay, M.D., Ph.D.) [hereinafter Shay Written Testimony]: “This problem does not call
for study or for an expansion of the existing case-by-case discharge upgrade program.
Today I ask Congress for a blanket upgrade of all veterans discharged under less than
honorable conditions who have any combat decoration . . . or obviously an award for
heroism, such as a Bronze Star.”); John Hoellwarth, Medical Officer Links Misconduct
and PTSD, MARINE CORPS TIMES, WWW.MARINECOPRSTIMES.COM, Jun. 23, 2007
(10:37:48 EDT) (discussing military mental health professionals’ calls for more
“aggressive screening” of offenders for PTSD and treatment-based alternatives rather
than simply punishment or involuntary separation with stigmatizing discharges) (citing
Navy Captain William Nash).

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