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

AuthorTiffany M. Chapman
PositionJudge Advocate, U.S. Army
Volume 204 Summer 2010
[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.
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. NATL CTR. FOR PTSD, U.S. DEPT 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. ASSN 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
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. DEPT 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
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. DEPT 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.

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