A Rehabilitative Justice Pathway for War-Traumatized Offenders Caught in the Military Misconduct Catch-22

• Published date: 01 January 2018
• Author: Evan Seamone,Dan Smee,Sean Clark,Shoba Sreenivasan,Daniel Dow,James McGuire
• Date: 01 January 2018
• DOI: 10.1177/0095327X17690852
• Subject Matter: Articles

Article

A Rehabilitative Justice

Pathway for War-

Traumatized Offenders

Caught in the Military

Misconduct Catch-22

Evan Seamone

1

, Shoba Sreenivasan

2

, James McGuire

3

,

Dan Smee

4

, Sean Clark

5

, and Daniel Dow

6

Abstract

The United States and Canada, among others, have recognized that “misconduct

stress behaviors” can be a “hidden” by-product of war-zone deployments. The

American military’s paradigm of punishment over treatment creates a “military

misconduct Catch-22,” in which the service member’s treatment need is identified

as a result of, or only after, violations of military law. Civilian society then bears the

justice, familial, and social costs of the military’s failure to address combat stress–

based misconduct. As an alternative to existing punitive military pathways, we

propose a rehabilitative justice pathway that builds on the successes of civilian

criminal justice mental health courts—to be implemented during active duty service,

before separation from the Armed Forces. The approach, predicated on the cir-

cumstances of each case, promotes resilience, honorable discharge, and successful

reintegration of service members into society.

1

Mississippi College School of Law, Jackson, MA, USA

2

GLA VA Healthcare System, Keck USC School of Medicine, Los Angeles, CA, USA

3

Justice Programs, Veterans Health Administration, Los Angeles, CA, USA

4

Social Work Services, GLA VA Healthcare System, Los Angeles, CA, USA

5

Veterans Justice Outreach Program, Veterans Health Administration, Washington, DC, USA

6

District Attorney, San Luis Obispo County, CA, USA

Corresponding Author:

Shoba Sreenivasan, GLA VA Healthcare System, Keck USC School of Medicine, 11301 Wilshire Blvd.,

Bldg. 258 Room 135, Los Angeles, CA 90073, USA.

Email: shoba1213@gmail.com

Armed Forces & Society

2018, Vol. 44(1) 139-155

ªThe Author(s) 2017

Reprints and permission:

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DOI: 10.1177/0095327X17690852

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Keywords

law, military organization, public policy, veterans, military effectiveness

Both the United States and Canada, among others, have recognized that “misconduct

stress behaviors” can be by-products of military combat operations (Canadian Army

Lessons Learned Centre, 2004; U.S. Department of Army, 2006, pp. 1–6). Criminal

offending in the military caused by combat-related emotional derailment raises an

important question of the manner in which the Armed Forces have responded to this

phenomenon. Contrary to a sea change in civilian criminal justice policy that targets

individuals with mental illness generally—and justice-involved veterans, specifi-

cally—for mental health treatment rather than punishment, military institutions have

largely prioritized harsh punishment of military offenders with a premium on swift

removal from the military and replacement with new recruits or conscripts (Seamone

et al., 2014). In the United States, the consequence of punitive ejection can result in

discharge characterizations that bar eligibility for health-care benefits administered

by the Department of Veterans Affairs (VA), regardless of one’s need for mental

health treatment (Seamone et al., 2014). Yet, even in countries that provide health

care regardless of discharge characterization, such as England and Wales, involun-

tary separation for misconduct with the label of dishonorable or other than honorable

(OTH) has tremendous shaming effects that often engender continuing mental health

consequences (Howard League on Penal Reform, 2011).

The occupational hazards unique to military service in harsh combat environ-

ments may increase the risk for emotional deregulation related to combat posttrau-

matic stress and mild brain injury (Tanielian & Jaycox, 2008) increasing the risk for

misconduct and criminal behavior. The pervasive failure to self-identify for mental

health assistance leads many afflicted service members not acknowledge or enun-

ciate the need for mental health treatment until after a precipitating crisis event,

which is all-too-often arrest and other law enforcement engagements. In a study of

five different nations’ military services, the major reason why service members did

not seek help for mental health conditions was the perception that they would be

perceived as weak (Gould et al., 2010).

The “military misconduct Catch-22” occurs when the war-zone mental health

effects are unrecognized and their sympt oms punished rather than treated; once

punished the nature of the discharge makes treatment impossible to obtain within

and once out of the military (Quill & Penaloza, 2013). In adopting a punitive model,

the U.S. military has in essence criminalized mental illness in that most untreated

mental health conditions stemming from combat can result in predictable type

declines in work performance. Irritability, poor attention, anger outbursts are typical

effects of post-traumatic stress disorder (PTSD) and mild traumatic brai n injury

(TBI) that result in failure to perform duties in a timely or accurate manner or may

lead to an outburst in the work setting; the result in the military is unique penalties

140 Armed Forces & Society 44(1)