By Ken Olsen
(Copyright 2016, All rights reserved)
Want to correct an unfair discharge or remove an erroneous mental health diagnosis from your service record? The Army or Navy board of last resort will spend five minutes on your case. Maybe less.
“The deck is really stacked against servicemembers at these boards,” says Thomas Moore, manager of the Lawyers Serving Warriors project at the National Veterans Legal Services Program and a former Army JAG officer.
“They go to great lengths to deny meritorious claims,” adds Raymond Toney, a former Army reservist and private attorney who specializes in these cases. “They see their role as defending the government.”
In other words, if a combat veteran with PTSD is wrongly discharged for a personality disorder, he or she has almost no chance of setting the record straight – a record that makes all the difference as to whether they receive medical care and retirement benefits or are able to make a career outside the military.
A personality disorder discharge is often also a significant blow to a servicemember’s personal pride. “They feel like they have served honorably, gone to war, and then have been improperly booted without acknowledging the wounds they received as a result of combat,” Moore says. “They feel like it’s an indelible stain on their military record.”
A Board for Correction of Military Records was established for each service branch following World War II. Board members are civilian volunteers who also often work full-time jobs. They consider a wide range of issues, from promotion and pay to whether a servicemember should have received a particular commendation such as a Purple Heart. The boards also decide whether a servicemember should have been medically retired for combat injuries such as PTSD and TBI, rather than simply declared unfit for duty due to developmental issues such as personality disorders and adjustment disorders and cut from the ranks. They are the board of last resort for discharge upgrades.
However, the correction boards are overwhelmed with cases and do not have the resources to do the job Congress charged them to do. Toney analyzed the work of three boards after noticing that the Army and Navy boards often avoided addressing potentially meritorious claims, or simply dismissed such claims on the grounds that “the applicant has presented no evidence” when it was clear the applicant had, he says. He discovered that the Army board spent fewer than five minutes reviewing each case. The Navy board, which also considers Marine Corps issues, spent an average of two minutes. Only members of the Air Force board take cases home a week in advance so they have ample time to review the record.
In other words, “these cases are predetermined by staff,” and board members are simply signing off on those decisions, Moore says.
Mistakes are common. If key documents are missing from the applicant’s military personnel file, the boards assume that the service branches properly followed procedures and did the right thing. In situations where a servicemember was discharged for a personality disorder, for example, the National Veterans Legal Services Program often discovers that the mental status evaluation was not done properly, or the document that shows the doctor actually diagnosed PTSD instead of a personality disorder is missing from the file.
Veterans can appeal corrections board decisions to the Court of Federal Claims or a U.S. district court. Yet only a small percentage of cases reach the federal courts – most former servicemembers don’t have the means to appeal, Toney says. And while the court has severely chastised the boards, little has changed.
What’s the solution? A 1996 DoD report to Congress outlined recommended that all service branches follow the example set by the Air Force corrections board, Toney says. “Twenty years later, none of the recommendations have been implemented.”
The boards also need more resources in order to be able to take the time to make thoughtful decisions, as well as more oversight.
“There’s no consequences to the board or the board staff for these decisions,” Toney says. “You have a system of impunity for bad decision-making. It’s going to take (action by) Congress and the secretary of defense. It’s going to take people getting pissed off about it.”
This story originally appeared in the June 2016 issue of The American Legion Magazine. Check out this related story on involuntary discharges: Booted After Battle: Thousands of combat veterans have been kicked out of the military for misconduct without regard for PTSD, TBI or their right to medical retirement
So what do we do now? My husband was discharged in ’09 after serving 4yrs in the brig for a misconduct that was clearly caused by his PTSD. He had been diagnosed one yr prior and was recieving numerous psychotropic drugs, as well as weekly counseling. He also just had back surgery for an injury incurred during his service. Both the physical, and mental injuries, we’re treated while on AD and continued to be treated throughout his incarceration up to the current date. How he was not referred to a MEB for injuries that required extensive ongoing care, is beyond me. If the Board Of Last Resort basically provides no real hope, what can be done? We’re in the process of a VA claim that has twice been denied; and apparently FOIA doesn’t really mean that anyone has to turn over medical records, instead they can just claim that they’re “lost”.
I am going through this battle now with the the Navy Department Records Board. They denied my relief and said there was no evidence that I don’t have Personality Disorder. I paid for an expensive Psychological Evaluation conducted by a Psychologist that works for the Veterans Affairs and conducted a MMPI-2 test and on her report concluded no diagnosis and clearly no long standing personality disorder. I found the phone number of the division psychiatrist that recommended my discharge and he said clearly they would not transfer me especially they were preparing for war (Iraq Invasion). I just hope unfair treatment to veterans stop. If anyone needs evidence I am more and happy to share. The Board is requesting me to appear and I am waiting for their response with a date, time and place. Thank you, Michael Tulipat
Wow, that’s rough. Wish I would’ve read this before joining the Navy. More people need to speak out about this. How did your in-person board turn out?