Leave No Soldier Behind: Ensuring Access to Health Care for PTSD-Afflicted Veterans

• Author: Tiffany M. Chapman
• Position: Judge Advocate, U.S. Army
• Pages: 1-50

MILITARY LAW REVIEW

Volume 204 Summer 2010

LEAVE NO SOLDIER BEHIND: ENSURING ACCESS TO

HEALTH CARE FOR PTSD-AFFLICTED VETERANS

MAJOR TIFFANY M. CHAPMAN*

[T]he detrimental effects of combat are deep and

enduring and follow a complex course, especially in

combat stress reaction casualties. PTSD, being the only

disorder that distinctly stems from exposure to an

external traumatic event, often entails medicolegal and

political implications for soldiers who are sent by their

nations to war.1

I. Introduction

Roadside bombs, snipers, ambushes: these events permeated

Sergeant (SGT) Smith’s daily life during his twelve-month deployment

to Iraq in support of Operation Iraqi Freedom (OIF).2 He faced heavy

* Judge Advocate, U.S. Army. Presently assigned as Chief, Administrative and Civil

Law, Office of the Staff Judge Advocate, United States Military Academy, West Point,

New York; LL.M., 2008, The Judge Advocate General’s Legal Center & School,

Charlottesville, Virginia; J.D., 2004, University of Texas at Austin; B.S., 1998, United

States Military Academy. Recent assignments include Chief, Operational Law, 1st

Cavalry Division, Fort Hood, Texas (2007–2008); Senior Trial Counsel, 1st Cavalry

Division, Fort Hood, Texas (2006–2007); Tort Claims Attorney, III Corps, Fort Hood,

Texas (2005–2006); and Legal Assistance Attorney, III Corps, Fort Hood, Texas (2005).

Member of the bars of Texas and the Supreme Court of the United States. This article

was submitted in partial completion of the Master of Laws requirements of the 57th

Judge Advocate Officer Graduate Course.

1 Zahava Solomon & Mario Mikulincer, Trajectories of PTSD: A 20-Year Longitudinal

Study, 163 AM. J. PSYCHIATRY 659, 665 (2006).

2 Matthew J. Friedman, Posttraumatic Stress Disorder Among Military Returnees from

Afghanistan and Iraq, 163 AM. J. PSYCHIATRY 586 (2006). Dr. Friedman poses the

typical scenario for today’s Reservist Soldier, upon which this account is loosely based.

Although the Soldier in the account is fictional, his experiences resemble those of many

deployed Soldiers.

2 MILITARY LAW REVIEW [Vol. 204

and extensive combat exposure on patrols and witnessed horrible scenes

of carnage. Haunted by intrusive visions of the deaths of civilians and

his fellow Soldiers, SGT Smith returned from Iraq tormented, changed,

and unable to leave the combat zone behind. Today, his preoccupation

with personal safety and constant anticipation of a hostile act prevent

him from reintegrating into normal life. He vividly relives combat

experiences in his nightmares, particularly those in which his fellow

Soldiers were wounded, and alternately feels emotionally dead and

overwhelmed by strong surges of emotions. Since his return, SGT Smith

drinks heavily, experiences suicidal thoughts, misses formations, and

engages in physical altercations with other Soldiers. SGT Smith, like so

many other Soldiers returning from Iraq and Afghanistan, is suffering

from Posttraumatic Stress Disorder (PTSD). He is now at risk of being

administratively separated and losing his veterans’ benefits.3

A discharge Under Other Than Honorable Conditions (OTH)4 is

extremely problematic for a Soldier afflicted with PTSD. Current

3 A strong correlation exists between PTSD and substance abuse, mental health problems,

and persistent misconduct. NAT’L CTR. FOR PTSD, U.S. DEP’T OF VETERANS AFF., IRAQ

WAR CLINICIAN GUIDE 24 (2d ed. 2004), available at http://www.ncptsd.va.gov/ncmain/

ncdocs/manuals/nc_ manual_iwcguide.html [hereinafter OIF CLINICAL GUIDE]; Erin M.

Gover, Iraq as a Psychological Quagmire: The Implications of Using Post-Traumatic

Stress Disorder as Defense for Iraq War Veterans, 28 PACE L. REV. 561, 566–67 (2008).

These behaviors and conditions usually conflict with the interests of the military.

Increased rates of attrition from military service, particularly involuntary administrative

separations, evidence this conflict between PTSD’s symptoms and the interests of the

military. Charles W. Hoge et al., Mental Health Problems, Use of Mental Health

Services, and Attrition from Military Service After Returning from Deployment to Iraq or

Afghanistan, 295 J. AM. MED. ASS’N 1023, 1025, 1029 (2006). Attrition is defined as

leaving military service for any reason. Id. at 1030. Among the 220,620 OIF veterans

screened, 82.7% remained in military service during the twelve months following the

deployment. Id. Of the remaining 17.3% that left military service within twelve months

after deployment, approximately one-fourth of the Soldiers reported a positive response

for a mental health issue on the Post-Deployment Health Assessment (PDHA). Id. Of

the Soldiers returning from OIF or Operation Enduring Freedom (OEF) in Afghanistan,

some 300,000 Soldiers expect to be discharged from the military even though they may

be afflicted with PTSD. Gover, supra, at 561. These numbers continue to rise. Matthew

J. Friedman, Acknowledging the Psychiatric Cost of War, 351 NEW ENG. J. MED. 75

(2004).

4 Administrative separations comprise a portion of these discharges and consist of

voluntary separations, generally initiated by the requesting Soldier, and involuntary

separations, which are initiated by the Soldier’s command. U.S. DEP’T OF ARMY, REG.

635-200, ACTIVE DUTY ENLISTED SEPARATIONS para. 3-7 (6 June 2005) [hereinafter AR

635-200]. Administrative separations are one of a commander’s tools for involuntarily

separating Soldiers in order to maintain the readiness and discipline of a unit. The

underlying policy of administrative separations is to ensure the readiness and competency

2010] HEALTH CARE OF PTSD-AFFLICTED VETERANS 3

legislation bars Soldiers who are administratively separated with an OTH

discharge for “willful and persistent” misconduct from receiving

Veterans’ Affairs (VA) compensation; in some instances, these Soldiers

are also barred from health care benefits.5 In 1977, Congress passed

Public Law 95-126,6 which permitted some—but not all—who were

discharged with an OTH for misconduct to receive health care benefits if

the VA determined that the Soldier did not otherwise meet one of the

statutory bars set forth in 38 U.S.C. § 5303(a).7 Consequently, even

Soldiers with service-connected disabilities8 incurred in combat

of the force. Id. para. 1-1. Since maintenance of high standards of conduct, discipline,

and performance promote this policy, commanders retain great discretion of the

administrative separation process, to include the determination of which individuals

should be separated, the basis for separation, and the characterization of the discharge.

Id. Although AR 635-200 provides factors for consideration when deciding between

retention and separation, commanders are not required to justify their decision beyond the

procedural requirements of the regulation. Id. para. 1-15. Since a commander may view

a PTSD-afflicted Soldier’s behavior as a detriment to the unit, a Soldier manifesting

symptoms of PTSD is at risk of being involuntarily separated on several primary bases:

substance abuse, personality disorders, and misconduct. Hoge et al., supra note 3, at

1030. These separations may be characterized as OTH conditions, particularly

separations for misconduct, without regard to the underlying anxiety disorder. AR 635-

200, supra, para. 1-15. An OTH discharge is the most adverse characterization of an

administrative separation and is normally issued for misconduct “that constitutes a

significant departure from the conduct expected of soldiers in the Army,” such as acts

involving use of force or violence to cause serious injury and deliberate acts or omissions

“that seriously endanger the health and safety of other persons.” Id. para. 3-7.

5 38 U.S.C. § 5303(a) (2006); 38 C.F.R. § 3.12(d) (2010). Soldiers who receive an OTH

discharge for willful and persistent misconduct are barred from receiving compensation

under 38 C.F.R. § 3.12(d), but may retain eligibility for health care unless they are

subject to the statutory bars set forth in 38 U.S.C. § 5303(a).

6 Pub. L. No. 95-126, 91 Stat. 1106 (1977) (codified as amended at 38 U.S.C. § 5303).

Congress passed Public Law 95-126 to deny eligibility of veterans’ benefits to “certain

persons who would otherwise become so entitled solely by virtue of the administrative

upgrading under temporarily revised standards of other than honorable discharges from

service during Vietnam . . . .” Id.

7 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(d). The statutory bars consist of discharge or

dismissal due to being a conscientious objector who refuses to wear a uniform, perform

military duties, or obey lawful orders; receiving a sentence at a general court-martial;

resigning as an officer for the good of the service; deserting; being discharged for

alienage; and absenting one’s self without leave (AWOL). U.S. DEP’T OF VETERANS

AFF., M21-1MR ADJUDICATION PROCEDURES, at 1-B-7 (Mar. 7, 2006), available at

http://www.warms.vba.va.gov/M21_1MR.html [hereinafter M21-1MR PROCEDURES].

8 See U.S. Dep’t of Veterans Affairs, Pub. & Intergovernmental Affairs, Federal Benefits

for Veterans, Dependents, and Survivors, available at http://www1.va.gov/opa/Is1/2.asp

(last visited Aug. 5, 2009). Disabilities incurred or aggravated during active service are

usually considered service-connected. Id. The type and degree of disability are main

factors in determining the amount of disability compensation a veteran will receive for

service-connected disabilities. Id.