The Shriver Brief : Poverty Law Commentary & Insights : Sargent Shriver National Center on Poverty Law : Affordable Housing, Healthcare Reform

Veterans face a host of challenges, not the least of which is obtaining the benefits due them and dealing with legal issues related to family issues, credit, foreclosure, and others. An advocate need not be an expert in veterans law to identify VA benefits and refer a client to VA for assistance. By asking a low-income or elderly legal aid client if the client is a veteran, dependent of a veteran, or survivor of a veteran, those who represent poor, elderly, and disabled persons may be able to identify monetary benefits and services from the U.S. Department of Veterans Affairs (VA), and these benefits may help resolve the client’s legal issues. A quick screening guide and descriptions of some monetary and health benefits help advocates ask the right questions and refer clients to resources. Five tips may help nonmilitary attorneys represent military members better and avoid “traps for the unwary” and recognize that clients who have a military connection often get more protection and benefits through laws that apply specifically to military members.

When handling a family law case involving a party in the military, attorneys should know about pertinent rules that may be unfamiliar to the typical family law practitioner. These involve special rules for establishing jurisdiction and service of process to initiate a case; setting up custody, visitation, family support, and division of a military pension; and using the Servicemembers Civil Relief Act at any stage of a family law proceeding. With this knowledge, an attorney can both advocate better for a military client and know how to observe the special rights of a military party on the other side of a family law matter.

Assisting disabled military veterans, who risked injury and death in the service of their country, in obtaining veterans benefits is an honor. Legal aid attorneys who wish to assist veterans have many resources available to them. Pine Tree Legal Assistance’s Stateside Legal website has information for military members, veterans and their families and pro bono opportunities. The American Bar Association has established the Military Pro Bono Project. The ABA has also developed a new web-based legal resource center aimed at military families called ABA Home Front in support of First Lady Michelle Obama’s Joining Forces initiative that seeks to support military military members and their families. The National Veterans Legal Services Program also has a pro bono project called Lawyers Serving Warriors, through which attorneys can volunteer to represent veterans.

To gain insight into the many issues facing veterans and innovative solutions, read the Clearinghouse Review: Journal of Poverty Law and Policy’s September-October 2009 special issue Legal Needs of Military Veterans, Servicemembers, and Their Families. The special issue includes best practices and creative approached to helping our military members and veterans in many contexts and fora, including military benefits, and family and consumer law. Barton F. Stichman, who litigated the Sabo case on behalf of the National Veterans Legal Services Program, contributed to the issue, writing Advocating Benefits for Veterans. The issue provides guidance on representing veterans before the U.S. Department of Veterans Affairs (VA), discusses laws such as the Veterans Judicial Review Act of 1988, and the Servicemembers Civil Relief Act.

For more information on the Servicemembers Civil Relief Act, see the ABA-sponsored book, A Judge’s Benchbook for the Servicemembers Civil Relief Act by Colonel John S. Odom, Jr. USAF Retired (also see free checklist by Mark E. Sullivan, A Judge’s Guide to the Servicemembers Civil Relief Act).

Kathleen Donahue McNally coauthored this blog post.

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Much 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.

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Given the recession, it is not surprising that the number of bank branches in the United States decreased for the first time in 15 years last year. Closures have been particularly prevalent in low-income neighborhoods. As banks closed branches in poorer areas in response to shrinking profit margins, they opened new branches in wealthier ones. Between 2008 and 2010, the number of branches in areas with median household incomes below $50,000 fell by 396. During the same period, 82 new branches were added in neighborhoods where household income was above $100,000. Although the American Bankers’ Association has disputed the statistical significance of this data, citing the fact that there are over 95,000 bank branches nationwide, this does not disprove that there is a pattern.  

For example, Birmingham-based Regions Financial, with a pool of only 2,000 branches, closed 107 branches in low- and moderate-income neighborhoods between 2008 and 2010, but closed only one in a high-income neighborhood. Similarly, Bank of America closed 25 branches in lower-income areas while opening 14 in wealthier areas. Citigroup also closed two branches in the poorest areas they served and opened three in the wealthiest. In fact, Citigroup has made very little effort to hide its intention to focus on wealthy markets. At a Wall Street investor conference last November, Manuel Medina-Mora, head of Global Consumer Business, revealed that Citigroup would expand its retail banking primarily in “affluent segments in major cities.”

Branch closures have been more prevalent in low income neighborhoods despite Community Reinvestment Act regulations in place since 1977, requiring financial institutions to serve poor and middle-class credit markets. These regulations also require financial institutions to notify regulators of branch closings. Federal regulators, however, seem to have turned a blind eye to bank branch closure patterns. 

According to John Taylor, President of the National Community Reinvestment Coalition, “You don’t have to be a statistician to see that there’s a dual financial system in America, one for essentially middle- and high-income consumers, and another one for the people that can least afford it.” If bank branches continue to close in low-income neighborhoods, the options available to low-income families will continue to dwindle.

Even after the economy improves and the consequences of the mortgage bust subside, closures are likely to continue in the long run due to increased use of online and automated banking systems. Bank branches in lower-income neighborhoods will be at particular risk because new regulations, including those limiting overdraft fees, have stripped banks of major revenue sources earned from products marketed towards low-income clients. Without brick-and-mortar branches, efforts to foster a “culture of savings” in low-income neighborhoods may have very little impact. Additionally, bank closures in poor areas will most likely increase the use of predatory lenders (check-cashing centers, payday loan providers and pawnshops).

Thus, if regulators continue to be too timid to confront those banks violating the Community Reinvestment Act, if not in fact, then in spirit, access to mainstream credit will continue to be an uphill battle for poor families.

This post was coauthored by Melanie Jacobs.

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Today we are seeing the needs of military families being raised to level of national importance. First Lady Michelle Obama, along with Dr. Jill Biden, has made improving the lives of military families her signature issue, and this is reflected in a proposed expansion in funding for military support programs in the president’s 2011 budget. Improving the focus on military family issues is welcome, as the burdens placed on the men and women of our armed forces have increased throughout the past decade, where active-duty servicemembers have become accustomed to frequent and lengthy deployments overseas. This trend has imposed great challenges on our military families, which may not end upon the servicemember’s discharge into our already-sizable veteran population. These include, unfortunately, a full range of legal issues, many of which are unique to those currently and formerly serving in the armed forces.

As these legal needs have grown, they have been met with many local, state, and national initiatives enabling attorneys to step forward to deliver much-needed legal help to active-duty sevicemembers and veterans. And where military culture had historically adopted a “we take care of our own” attitude when it came to providing legal services to its members, the military legal assistance establishment is now grateful for the support of and collaboration with the private bar to act as a “force multiplier” to extend the range of services and legal counsel available to servicemembers, often delivered at a reduced cost or free-of-charge by the civilian attorneys.

There is much that a private bar attorney can to do aid our current and former servicemembers. Many military families encounter civil legal needs, such as:

• landlord/tenant matters, including deposit recovery problems related to Servicemember Civil Relief Act (SCRA) lease terminations;
• family law issues, especially child custody disputes arising around overseas deployment;
• credit and lending problems, which can include payday loans, auto sales contracts, and interest rate reductions under the SCRA;
• employment issues, particularly for National Guard members and Reservists needing to enforce reemployment rights;
• guardianship needs, or estate matters on behalf of families of deceased servicemembers; and
• securing vitally-needed benefits for veterans from the Department of Veterans Affairs.

In the fall of 2009, the Shriver Center published a special issue of Clearinghouse Review featuring articles written by military and civilian attorneys on these and other topics affecting veterans, servicemembers, and their families. This issue of the Review is an important tool supporting work done to expand access to justice for current and former military members, and it is available online for subscribers; nonsubscribers may purchase individual articles, or order the entire special issue. Any military legal assistance attorney may have free access to the issue through the American Bar Association Military Pro Bono Project website. Attorneys, whether in legal aid, pro bono, or private practice, can do much to help military families, and this issue of the Review illuminates how such assistance can be provided.

For more discussion on these issues and the important role that can be played by members of the civilian bar, please join our Shriver Center Dialogue on Accessing Justice: Military Veterans, Servicemembers, and Their Families, Friday, February 26, 2010, at DLA Piper 203 North LaSalle Street, Chicago, IL 60601, at 8:15 a.m. Presenters will include advocates working to meet the legal needs of this important population. We hope you will join us to find out how you can get involved with giving back to those who have sacrificed so much for us.
 

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