In need of correction: how the Army Board for Correction of Military Records is failing veterans with PTSD.

• Author: Izzo, Rebecca
• Position: Post-traumatic stress disorder

After completing two honorable tours of duty, fighting in four separate campaigns in Vietnam, and earning an Air Medal with Valor Device for heroism, John Doe (1) was given an Undesirable Discharge after he began threatening and striking other soldiers in 1973. (2) He was later diagnosed with Post-Traumatic Stress Disorder (PTSD). As a result of his Undesirable Discharge, he can be denied government employment and cut off from benefits, such as disability compensation, health benefits, education benefits, a military burial, and benefits for surviving family members. (3) Veterans like Mr. Doe have struggled to cope not only with their war wounds but also with the shame of a bad discharge. As one journalist observed, '"Bad paper' vets will not be honored on Veterans Day.... [They] have been largely forgotten and ignored by the military and veterans organizations." (4)

In 2009, Mr. Doe applied to the Army Board for Correction of Military Records (ABCMR) for a discharge upgraded. (5) He argued that his sudden violence had been caused by undiagnosed PTSD, the symptoms of which include "[i]rritable behavior and angry outbursts" and an "[exaggerated startle response." (6) Mr. Doe's VA clinical records from 1968 show that upon returning from his first tour of duty in Vietnam, he was admitted to a hospital for "transient stress reaction ... manifested by anxiety, insomnia and fear of death" and that a cause of these symptoms was "severe, combat duty in Vietnam." (7) Despite the fact that Mr. Doe had served honorably during two other tours, had been hospitalized for a stress reaction, and had a sudden change in behavior consistent with the symptoms of PTSD, the ABCMR denied his application for a discharge upgrade. (8)

Mr. Doe is not alone. At least 560,000 Vietnam veterans were given discharges under conditions that were less than Honorable. (9) Three hundred thousand of these were General Discharges, which have no effect on most benefits but carry a grave stigma and often have adverse effects on employment. (10) The remaining 260,000 were "bad paper" discharges--either Other than Honorable (also sometimes termed Undesirable), Bad Conduct, or Dishonorable Discharges. (11) These veterans "were simply cut off from any government help at all, and not even eligible for a civil service job." (12)

Many of these "bad paper" veterans suffer from PTSD. The 1990 National Vietnam Veterans Readjustment Study (NVVRS) found that "30.6 percent... of male Vietnam theater veterans (over 960,000 men) and over one-fourth (26.9 percent) of women serving in the Vietnam theater (over 1,900 women) had the full-blown disorder [PTSD] at some time during their lives." (13) NWRS reported that 15.2 percent of male veterans and 8.5 percent of female veterans were "current cases of PTSD," (14) but a later study found that in most cases, veterans' PTSD is chronic: "Among Vietnam veterans who had ever developed full or partial PTSD, only one in five reported no symptoms in the prior 3 months when assessed 20-25 years after their Vietnam service." (15)

Statistically, this would suggest that tens of thousands of veterans with bad discharges have suffered from PTSD. As Jonathan Shay, a psychiatrist with extensive experience working with Vietnam veterans with PTSD, wrote in a New York Times op-ed with Congresswoman Maxine Waters:

Many bad-paper veterans are among the 250,000 ex-combat soldiers who suffer from post-traumatic stress disorder. They have a higher incidence of unemployment, violent behavior, alcohol and drug abuse, family problems and homelessness than other veterans. Yet we won't give them the treatment that could help them heal. They served their country and deserve treatment for their war wounds, physical and mental.... These ex-soldiers fill prisons and homeless shelters in disproportionate numbers around the country. The New England Shelter for Homeless Veterans, a 225-bed treatment center in Boston, is typical: 25 percent of ... those who use it are bad-paper combat veterans. (16) Waters was the sponsor of a bill to "establish a procedure for combat veterans to automatically upgrade their bad-paper discharges," which she argued would be "a major step toward insuring that those who risked their lives in battle are not abandoned to the streets, prisons and margins of our society." (17) Almost twenty years later, the proposed bill has faded into history and nothing has changed. (18)

Over the last several decades, medical research has illuminated the causes and severe consequences of PTSD. In 1980, PTSD was for the first time recognized by the Diagnostic & Statistical Manual of Mental Disorders. (19) Today, before being given a discharge that is not Honorable, "[a] Service member must receive a medical examination to assess whether the effects of posttraumatic stress disorder ... or traumatic brain injury (TBI) constitute matters in extenuation that relate to the basis for administrative separation" if he or she "reasonably alleges the influence of PTSD or TBI based on deployed service to a contingency operation during the previous 24 months." (20)

Yet there is evidence that the military is still not appropriately diagnosing PTSD. In 2009, there were reports of thousands of veterans with PTSD getting bad discharges based on abuse of alcohol, which they used to self-medicate. (21) Around the same time, Salon published an article revealing that an Army psychologist had been recorded saying to a sergeant who came in for an evaluation: "Not only myself, but all the clinicians up here are being pressured to not diagnose PTSD and diagnose [A]nxiety [D]isorder [Not Otherwise Specified]" instead. (22) Similarly, a recently retired Army psychiatrist told Salon that "commanders at another Army hospital instructed him to misdiagnose soldiers suffering from war-related PTSD, recommending instead that he diagnose them with other disorders that would reduce their benefits." (23) Additionally, there have been numerous recent reports of the military wrongly diagnosing veterans with Personality Disorder rather than PTSD, preventing them from receiving benefits. (24)

The ABCMR's failure to take meaningful account of PTSD in applications by Vietnam veterans is the subject of recent litigation. (25) Army veteran and Bronze Star with Valor Device recipient John Shepherd, Jr., together with a proposed class of Vietnam veterans with Other than Honorable Discharges and PTSD, filed suit in 2012. The lawsuit claimed that "[t]he United States military has failed to correct the wrongful discharges of thousands of Vietnam War Era veterans suffering from Post-Traumatic Stress Disorder ... undiagnosed while they were in service." (26) Moreover, the lawsuit contends that "[s]ince 2003, of approximately 145 applications for upgrades of other-than-honorable discharges submitted by Vietnam veterans claiming PTSD, the ABCMR has approved two--a 1.4 percent approval rate," (27) a significantly lower rate than the 46% of all discharge upgrade applications granted by the ABCMR. (28) In November 2013, the Army agreed to upgrade Mr. Shepherd's discharge status and pay $37,000 in attorney's fees in exchange for the dismissal of the case. (29) "Good thing I'm a fighter," Mr. Shepherd said, "because it took years of fighting to receive recognition of my sacrifices and service in Vietnam. But there are thousands of guys like me who also deserve better from the DoD. Their fight is still going." (30)

The ABCMR has the power to change any Army record when it is "necessary to correct an error or remove an injustice." (31) However, the ABCMR's policies make it nearly impossible for a veteran with a bad discharge caused by undiagnosed PTSD to obtain a discharge upgrade. (32) The Board refuses to accept any evidence that a diagnosis or lack thereof at the time of discharge was incorrect, even when applicants present substantial later medical evidence.

This Comment will first explain the history and diagnostic criteria of PTSD. It will then detail the failures of the ABCMR in adjudicating the applications of veterans claiming PTSD as the reason for a discharge upgrade. Finally, it will offer suggestions for policy changes that would make it possible for applicants whose discharge was due to PTSD to attain discharge upgrades without opening the floodgates to fraudulent claims.

1. BACKGROUND ON PTSD

   1. History of PTSD

      The formal diagnosis of PTSD has only existed for a few decades, but the idea of combat stress is nothing new. Over time, there have been a number of different conceptions of the condition, and public and military support for those suffering from the condition has waxed and waned. (33) While traumatic stress from combat is as old as war itself, (34) the concept of combat neurosis or "shell shock" first came into focus during World War I. (35) One source estimates that forty percent of British casualties during the First World War were psychiatric. (36) Similarly, it is estimated that one-third of all World War II casualties were psychiatric. (37) However, when the first edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM-I) was published in 1952, it did not include combat neurosis. (38) PTSD did not become an official diagnosis until the publication of the third edition (DSM-IIT) in 1980. (39)

      In contrast to those reported in the First and Second World Wars, less than five percent of Vietnam War casualties were officially deemed psychiatric. (40) However, as psychiatrist Jonathan Shay explains, "[w]e now know that this low rate did not reflect the true incidence of major psychological injury, but instead reflected a multilayered institutional illusion, denial, and fiat." (41) The military assumed that "[s]omeone who broke down was damaged goods to begin with...