New rule qualifying veterans with ‘bad paper’ for VA benefits raises concerns about how it will be applied (2024)

New rule qualifying veterans with ‘bad paper’ for VA benefits raises concerns about how it will be applied (1)

The Department of Veterans Affairs headquarters in Washington, D.C., is shown in this undated photo. A new rule that makes tens of thousands of veterans eligible for benefits previously denied because of less than honorable discharges does not go far enough in providing a clear path for accessing disability assistance, health care and other Department of Veterans Affairs services, according to veterans’ advocacy groups. (Stars and Stripes)

WASHINGTON — A new rule that makes tens of thousands of veterans eligible for benefits previously denied because of less than honorable discharges does not go far enough in providing a clear path for accessing disability assistance, health care and other Department of Veterans Affairs services, according to veterans’ advocacy groups.

Under a rule published in the Federal Register that takes effect June 25, veterans who can show that mental illness, traumatic brain injury or other extenuating circ*mstances led to the misconduct will be considered for the first time for full VA benefits.

Veterans are excluded from VA services and benefits if their discharge was not honorable.

Dana Montalto, an attorney for the Veterans Legal Clinic at Harvard University Law School, said that the new rule still “imposes a significant burden on veterans” to undergo lengthy individualized reviews on the circ*mstances of their discharge that can take years before they are awarded access to VA services and health care.

Renee Burbank, director of litigation at the nonprofit National Veterans Legal Services Program, said the VA needs to ensure that staff knows about the change and the new rule is applied appropriately when reviewing claims for VA benefits.

“Given VA’s track record, in order for this new regulation to make any difference to service members who have long been denied their benefits, VA needs to outline specific efforts to educate their employees to ensure they properly serve any newly recognized veterans.”

Veterans who left the military with so-called bad papers may not even be aware of the rule change that will qualify them for VA services, advocates say.

Army veteran Adam Johnson, 41, of Tennessee is among an estimated 125,000 veterans who have left the military since 2001 with less than honorable discharges or by special court martial for minor offenses.

Johnson, who suffers from mental illness and is homeless, said he is hoping to seek the new exemption with the help of a county veterans service officer and qualify for VA services.

But he said that the VA has not informed him about the rule change, which becomes effective in a month, or next steps for seeking VA benefits.

In 2007, Johnson was ejected from the military with an other than honorable discharge in his final three months of duty.

Johnson said he had the “bright idea” after a night of excessive drinking to drive a motorcycle belonging to his commander without permission.

Johnson ran from the military police in a high-speed chase that was recorded on video before he was detained.

“I was given a choice to go to the brig or leave with an OTH,” said Johnson, who has experienced homelessness since discharge.

Johnson said that after leaving the military he was plagued by nightmares, flashbacks and negative thinking. He was hospitalized for mental illness related to post-traumatic stress disorder, depression and thoughts of suicide.

“For the longest time I’ve been in and out of mental hospitals,” Johnson said.

“No matter what the [discharge] papers say they do not show what happens to you mentally or physically,” said Johnson, who served at Fort Moore, formerly Fort Benning and Fort Stewart, both in Georgia. He was a private first class when he left the military.

Johnson said that recently he was directed to the VA for mental health care, which he has received under special dispensation for humanitarian reasons for chronic homelessness.

He also receives Social Security disability checks, but he said the payments are not enough to cover monthly rent on an apartment.

Lisa Von Hagen, a veterans’ service officer with the Maury County Veterans Services Office in Tennessee who works with Johnson, described the denial of VA care and services to veterans with other than honorable discharges as having a ripple effect that affects their ability to receive health care, secure employment and afford housing.

“Having an other than honorable discharge is a big thing I see with homeless veterans who can’t get care and services they need. It is a big piece of the puzzle for them,” she said.

The National Veterans Legal Service Program and Swords to Plowshares filed a lawsuit April 16 to compel the VA to apply “character of discharge” differently for other than honorable discharges, when considering VA benefits. That lawsuit was dismissed Tuesday after the adoption of the rule change.

Maureen Siedor, legal director with Swords to Plowshares, said that a lot of discretion is left with VA adjudicators in determining benefits, under the rule change.

“The veterans still have a significant burden to prove with mental health problems or racial struggles at the time, for example,” she said. “We’re seeing clients denied benefits after one infraction. The VA is still allowed to turn people away for minor misconduct.”

The lawsuit also stated that Congress authorized VA to exclude only former service members who received formal due process through a general court martial and were discharged with a dishonorable or bad conduct characterization of service.

Navy veteran Gerald Crump, 57, of Texas did receive due process in a court martial in 1994 after he stole another service member’s credit card and used it to buy several items.

Crump, who was a petty officer, third class, said he was sentenced to six months in the brig. But the judge also recommended that he continue active duty after serving his sentence.

“Because I had never been in trouble before this, the judge said he was not going to remove me from the military,” Crump said.

But after serving his sentence, Crump said he had an administrative review, where it was determined he would receive an other than honorable discharge.

“Everything the judge had said did not mean anything,” Crump said.

Crump said prior to the misconduct problems he had been hospitalized with depression and thoughts of suicide.

He said that there were racial problems aboard the ship, the USS San Diego, when it was deployed to the Persian Gulf. The incidents involved threats and derogatory statements scrawled on the kitchen walls where he worked, he said.

After his discharge in 1994, Crump said he applied for disability compensation related to post traumatic stress disorder and depression. But Crump said he was turned down because of the other than honorable discharge.

He receives no VA services or benefits today, and recently was laid off from his job as a supervisor at a manufacturing company.

After the VA secretary’s announcement last week that many veterans with other than honorable discharges may soon qualify for benefits, Crump said he checked in with the local VA office in Dallas to learn more about it.

“I have contacted them twice now. I was told they are not aware of any new rule or law for veterans with OTH,” Crump said. “They said my only option is to apply to have my discharge upgraded. They said they know nothing about it.”

previous coverage

  • Lawsuit argues veterans with substance-use disorders should be eligible for discharge upgrades
  • Court orders Navy to review thousands of 'bad paper' discharges
  • Two veterans file class-action lawsuit against Air Force over ‘bad paper' discharges
  • Court orders Army to review thousands of ‘bad paper’ discharges
  • Army agrees to review thousands of 'bad paper' discharges as part of lawsuit settlement
New rule qualifying veterans with ‘bad paper’ for VA benefits raises concerns about how it will be applied (2024)

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