Veterans appealing their less-than-honorable discharges could have more opportunity to influence the outcome of their reviews under draft legislation being considered in the House and Senate.
Both chambers defense policy bill proposals contain provisions that would change the discharge appeals process for veterans fighting their general or other-than-honorable discharges.
Under the proposed Senate fiscal 2020 National Defense Authorization Act, service discharge review boards would be required to consider all evidence, including testimony from friends and colleagues, news articles or any supporting documentation in addition to medical records submitted by veterans when weighing a veteran's appeal.
Currently, this policy, known as "liberal consideration," only applies to veterans whose less-than-honorable discharges are related to behavior or work lapses linked to having a traumatic brain injury, post-traumatic stress disorder or military sexual assault.
The bill would give all other veterans claiming error or injustice in their discharges -- on the basis of gender, race, sexuality, sexual harassment and other extenuating circumstances -- this same privilege.
Kristofer Goldsmith, associate director for policy and government affairs at Vietnam Veterans of America, explained that the proposal is a recognition "that there have been inequities" for reasons other than what are known as invisible wounds of war.
"Under current law, the boards could theoretically ignore entire sections of an application packet -- something they have demonstrably done in the past," Goldsmith told Military.com.
A 2017 Government Accountability Office report found that of nearly 92,000 personnel separated for misconduct between fiscal 2011 and fiscal 2015, 62%, or slightly more than 57,000, had a diagnosis of PTSD or TBI. Some were diagnosed with other health conditions that could be associated with misconduct such as adjustment and alcohol-related disorders.
The GAO also found discrepancies among the decisions made by individual service review boards, including inconsistent weight given to service-connected medical conditions across the Army, Navy and Air Force. (The Navy Discharge Review Board is responsible for Marine Corps discharges.)
A measure in the House defense policy bill seeks to address these inconsistencies by adding a new layer of review: a board of appeals at the Defense Secretary level that would consider cases denied by the services' top boards.
Under the current system, veterans seeking to overturn their discharges must file a claim with their service's discharge review boards electronically or by mail.
If denied, they can make a personal appearance before their respective board. If denied again, they can appeal to the Army Board of Corrections of Military Records, the Navy's Board for Corrections of Naval Records or the Air Force Board of Corrections for a final decision.
The House language would require a fourth level: a board of discharge appeals to "hear appeals of request for upgraded discharges and dismissals that are denied by the service review agencies."
Given the inconsistencies among the services, Goldsmith said, a DoD appeal board could level the playing field.
"Historically, the Air Force Review Boards Agency has had more positive outcomes for veterans. Navy and Army fall behind [Air Force], with the Marines always producing the worst outcomes for their applicants. This [DoD board] would theoretically be a place that makes outcomes more consistent across the services," Goldsmith said.
Goldsmith has been fighting his discharge decision based on a diagnosis of PTSD since 2016 and still hasn't received a final answer. Professionally, however, he's been highly successful, working tirelessly to expand opportunities for other veterans with "bad paper" discharges by improving the appeals process, pressing for legislation that provides mental health treatment for these veterans and expands their opportunities for civilian employment.
"What makes me most happy [about this proposed legislation] is that the reforms made it this far, and I had no part in it," Goldsmith said. "That tells me that Congress is recognizing through their own oversight that the previous reforms have failed to have the desired effect."
According to VA, there are more than 505,000 veterans with other-than-honorable discharges, most of whom cannot access comprehensive medical care at VA.
Under a pilot introduced in 2017, veterans who have other-than-honorable discharges can get mental health care at VA for up to 90 days in an emergency, and in some circumstances, get ongoing mental health treatment in non-emergent situations.
In 2018, the measure was made into law and was expanded to include those with other-than-honorable discharges who served on active duty more than 100 days and were in combat as well as veterans who experienced sexual assault or harassment on duty.
According to VA, 1,818 veterans with other-than-honorable discharges received mental health care at the VA, nearly three times the number treated in 2017.
Qualifying veterans with other-than-honorable discharges who need mental health services can go to a nearby VA medical center or Vet Center, according to VA.