Update on Veterans Law Developments

VeteranMuch has happened since we celebrated Veterans Day in 2010. The Don’t Ask, Don’t Tell law is officially dead. The U.S. Department of Defense, as the result of a settlement, has agreed to review disability ratings from 2001 to 2009 that wrongly denied benefits to veterans separated from service due to Post-Traumatic Stress Disorder (PTSD). The U.S. Department of Veterans Affairs (VA) was found by a federal appeals court to have violated the due process rights of veterans through its failure to timely treat veterans and process their medical claims and ordered make systemic changes in its regional office. The U.S. Departments of Defense and Veterans Affairs have agreed to share medical records—previously prohibited by regulation—in a way that facilitates health care for military servicemembers as they move from active service to veteran status. A Wisconsin county is the latest jurisdiction to create a special veterans court to ensure that offenders who are veterans get the medical treatment they need rather than follow a well-trod pathway to prison. The current Administration has continually pushed the private sector to create more jobs for veterans and hire more veterans for current jobs. Legal aid lawyers can help servicemembers, veterans, and their families by providing legal services where possible and by being aware of legal resources available and laws aimed specifically at servicemembers, veterans and their families.

Don’t Ask, Don’t Tell

Thousands of servicemembers were legally freed from the burden of hiding their sexual orientation on September 20, 2011, the date the Don’t Ask, Don’t Tell Repeal Act of 2010 (signed on December 22, 2010) became effective. As the President stated on September 20, "[W]e are not a nation that says, 'don't ask, don’t tell.' We are a nation that says, 'Out of many, we are one.'" While inequality is likely to remain, lives have already been changed. The Defense Department in its Quick Reference Guide to the repeal act has, as of October 28, 2011, identified 14 benefits for which servicemembers may designate beneficiaries including same sex partners.

News on help for Veterans with PTSD

That military veterans suffer from of Post-Traumatic Stress Disorder (PTSD) is not news. That the U.S. Departments of Defense and Veterans Affairs have woefully inadequate procedures probably is not a surprise either. But recent court victories by advocates are helping to change that. The Department of Defense on its website announced that it is “re-evaluating … disability ratings for some Veterans medically separated between September 11, 2001, and December 31, 2009, to ensure a correct disability retirement determination was made.” This action is required under a settlement agreement reached in Sabo v. United States. The National Veterans Legal Services Programbrought the suit the result of which will ensure that over 2,000 U.S. military veterans who served in Iraq and Afghanistan and who were medically discharged from the military after a diagnosis of PTSD will finally receive the military benefits due them. The settlement agreement was preliminarily approved by a U.S. Federal Court of Claims August 12, 2011; final approval is expected by January 2012.

The Ninth Circuit Court of Appeals, in a May 2011 scathing opinion, castigated the U.S. Department of Veteran Affairs for its delays, averaging four years, in processing veterans’ mental health claims, holding that the VA violated veterans’ due process rights through its failure to timely treat veterans and process their claims. Noting that in many cases timely treatment is a matter of life or death, (the court cited current suicide rates amongst servicemembers and veterans) the court ordered the VA to develop a system-wide plan to reduce delays in delivering mental health care to veterans. The court stated that it would have preferred the VA or Congress to take action, but found that the VA’s failure to develop procedures to handle the influx of claims from Afghanistan and Iraq war veterans left many veterans without treatment for years—a violation of due process under the Fifth Amendment.

State courts are seeking ways to help veterans with PTSD get the treatment they need instead of merely sending them to jail. Judges in Green Bay, Wisconsin, are working towards establishing a special court for military veterans. If this court is established in the next month as planned, it will join a list of about 50 special veterans courts created around the country over the past three years. The courts were developed because “military veteran offenders are more in need of treatment than prison.” The goal of the special court is to find the most effective way of dealing with veterans’ mental health issues, particularly PTSD. While some special veterans courts accept only combat veterans whose offenses have resulted from PTSD, others accept all veterans.

Unemployment and Homelessness

Employees who leave their jobs to work in the armed forces often cannot regain their jobs or retain benefits. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is designed to protect eligible military members from illegal employer action. But the American Bar Association (ABA) found that veterans still face barriers to employment and reemployment and recently adopted a resolution urging Congress to amend USERRA. The resolution, recommended by the ABA’s Standing Committee on Legal Assistance for Military Personnel, would require employees to provide certain reasonable accommodations for returning veterans with combat injuries, make unenforceable employment agreements that require arbitration of USERRA disputes, and authorize attorney fees.

President Obama has recognized that the unemployment rate among veterans is unacceptable. The Obama Administration recently launched two initiatives to support veterans and their families. President Obama’s Veterans Employment Initiative challenges the private sector to hire veterans and the President proposed a tax credit for businesses that take up the challenge. (The tax credit has been suggested before.)

Veterans are twice as likely as the general population to become chronically homeless. Many resources can help veterans improve their finances and access supportive housing so that they can have a place to live and can lead healthy, stable lives. Greater availability of two innovative legal programs—alternative sentencing statutes and veterans courts—would link at-risk veterans to life-saving treatment and lower their risk of homelessness.

Kathleen Donahue McNally coauthored this blog post.