A 'Catch-22' for Mentally-Ill Military Defendants: Plea-Bargaining away Mental Health Benefits

AuthorVanessa Baehr-Jones
PositionArticles Editor, UCLA Law Review
In an accompanying article, Major Tiffany Chapman describes issues
related to servicemembers administratively separated for acts of
misconduct.1 The instant article addresses separate issues facing
servicemembers who have been administratively discharged in lieu of
court-martial, whose numbers in the Army have amounted to 19,808,
from the period shortly after the inception of the Global War on Terror
through 23 July 2010.2 Of these discharged veterans, statistics reveal
that a good portion of them are likely to suffer from combat-related
mental conditions—to a greater extent than other veterans—given the
inescapable connection between mental illness and criminal behavior.3
While veterans who receive Other Than Honorable (OTH) conditions
discharges in lieu of court-martial may still be eligible for mental health
treatment under limited exceptions to the law, sanity board results from
Articles Editor, UCLA Law Review. Recent civilian positions include assignments at
the Joint Intelligence Operations Center, U.S. Pacific Command (2008–2009; 2006–
2007), the Joint Forces Command (2007), and the Defense Intelligence Agency (2004–
1 See generally Major Tiffany M. Chapman, Leave No Soldier Behind: Ensuring Access
to Health Care for PTSD-Afflicted Veterans, 204 MIL. L. REV. 1 (2010).
2 See E-mail from Homan Barzmehri, Mgmt. & Program Analyst, Office of the Clerk of
Court, U.S. Army Court of Criminal Appeals, to Amy Atchison, Research Librarian,
Univ. California, Los Angeles Law School (23 July 2010, 0754 EST) (summarizing
statistics for the number of discharges in lieu of Court-Martial within the U.S. Army for
the period 2002–2010). Between 2005 and 2 July 2010, the Navy separated 2326
personnel in lieu of court-martial. E-mail from Mike McLellan, External Media
Manager, Navy Personnel Command, Public Affairs Office, to Amy Atchison, Research
Librarian, Univ. California, Los Angeles Law School (28 July 2010, 1429 EST).
3 Psychological studies show a strong connection between symptoms of PTSD and
violence in veterans. A 1990 study of over 3000 Vietnam veterans, for instance, showed
PTSD sufferers committed, on average, 13.3 acts of violence in a year compared to a rate
of 3.5 for non-PTSD study participants. Almost half of the PTSD veterans also had been
arrested or jailed at least once. RICHARD A. KULKA ET AL., NATIONAL VIETNAM VETERAN
READJUSTMENT STUDY (1990). See also Thomas W. Freeman & Vincent Roca, Gun Use,
Attitudes Toward Violence, and Aggression Among Combat Veterans with Chronic
Posttraumatic Stress Disorder, 189 J. NERVOUS & MENTAL DISEASE 317 (2001) (showing
a link between chronic PTSD and higher rates of self-reported aggression); Andrew
Muskowitz, Dissociation and Violence: A Review of the Literature, 5 TRAUMA,
VIOLENCE, & ABUSE 22 (2004) (concluding that dissociative symptoms can predict

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