DOD Will Reconsider Thousands of Vietnam Vets’ Discharge Statuses

Thousands of Vietnam-era veterans suffering from post-traumatic stress disorder and denied service benefits because of their discharge status could now be entitled to those benefits under new Defense Department guidance.

Defense Secretary Chuck Hagel has directed the military boards responsible for correcting or upgrading discharge status to give “liberal consideration” to petitions from veterans who received a less-than-honorable discharge because of behavior resulting from PTSD at the time, making it easier for them to eventually obtain benefits. Service members who receive other-than-honorable discharges from the military typically are denied a range of benefits from the Veterans Affairs Department, including disability pay and G.I. Bill benefits. Because PTSD was not officially recognized as a disorder by the medical profession until 1980, many PTSD claims filed by Vietnam vets were denied. If they received a less-than-honorable discharge resulting from their PTSD, then they were denied VA benefits as well.

The guidance is necessary because often the records of service members who served before PTSD was recognized “do not contain substantive information concerning medical conditions in either service treatment records or personnel records,” making it very difficult to document conditions to prove a connection between the vet’s PTSD and the circumstances surrounding the less-than-honorable discharge, Hagel wrote in a Sept. 3 memorandum to the heads of the military agencies.

The Pentagon’s announcement is an important change that has the potential to affect tens of thousands of veterans, according to Laurie Forbes Neff, director of the Clinic for Legal Assistance to Servicemembers and Veterans at George Mason University law school. “A successful discharge upgrade application will likely open the VA’s doors to a large sub-set of previously denied veterans,” said Neff, who is a service-disabled vet, having served almost three years in the Marine Corps. “Reversal of discharges could result in large windfalls for veterans previously denied benefits, who would now be entitled to benefits all the way back to the first time their claims were denied by the VA.”

While it’s likely a discharge upgrade would mean retroactive benefits under the new guidance, it’s not yet clear that will be the case, she added.

Neff, who has handled such cases for vets in the past, said the guidance, while intended for Vietnam-era vets, could potentially also affect those who served in Iraq and Afghanistan. “I think arguments could be made that it would be expanded,” she said.  She gave examples of the kind of behavior, stoked by service-related PTSD, that could lead to a less-than-honorable discharge for service members, including substance abuse, absences from duty, shirking responsibilities and insubordination. Hagel’s memo specifies that the guidance is not applicable to “cases involving pre-existing conditions, which are determined not to have been incurred or aggravated while in military service.” The boards also should “exercise caution” when weighing evidence in cases where “serious misconduct” led to the less-than-honorable discharge, the guidance stated. 

For now, the guidance is pretty vague, though the department plans to issue more specific instructions on how the military boards should weigh such discharge petitions from vets and will educate the military and veteran community about the new policy. Hagel, however, was careful not to step on any toes: “This guidance is not intended to interfere with or impede the boards’ statutory independence to correct errors or remove injustices through the correction of military records,” he wrote in the memo.

Neff, who navigated the VA benefits process herself and found it “extremely frustrating,” said vets shouldn’t try to figure it out without advocates, who are available in many law clinics and other organizations. Their chances of success are “exponentially higher” working with someone who knows the system; one little mistake in filing a claim, she said, and they can be denied. That means a harder hill to climb when filing the next claim, which also will take “four times as long,” Neff said.

“Going it alone in VA, in general, is a bad idea,” she said.