Sixty-two percent of the 91,764 service members dismissed by the U.S. military for misconduct between 2011 and 2015 had been diagnosed two years before separation with post-traumatic stress disorder, traumatic brain injury or other conditions that could be associated with misconduct. And more than 13,200 of them received an “other than honorable” characterization of service, referred to as “bad paper,” making them ineligible for health benefits from the Department of Veterans Affairs.
The discharges, imposed with little or no due process, carried the stigma of a criminal conviction and the stain of dishonor. They contributed to homelessness, substance abuse and suicide.
Fifty years ago, 550,000 U.S. troops fought in Vietnam. At war’s end, more than half of all veterans diagnosed with PTSD had been arrested — more than one multiple times mostly for drug-related crimes. Many suffered from undiagnosed and untreated combat-related PTSD and, tragically, many were issued less-than-honorable discharges from the service. For years, the military underdiagnosed and did not treat the problems and then cursed the sufferers with discharges for misconduct.
Today, the VA estimates that 1 in 5 veterans returning from Iraq and Afghanistan suffers from PTSD. And, between 2009 and 2016, more than 25,000 combat soldiers were discharged from the Army for misconduct after they were diagnosed with PTSD or traumatic brain injury.
It is little wonder then that the Government Accountability Office issued a report to Congress on “Actions Needed to Ensure Post-Traumatic Stress Disorder and Traumatic Brain Injury Are Considered in Misconduct Separations.”
We should not treat combat veterans returning from Iraq and Afghanistan as callously as we did those who returned from Vietnam, nor should our criminal justice system ignore these wounds of war.
New York was the first state to recognize the need for veterans treatment courts, where veteran mentors, the VA and other service agencies combine with our court system to help rehabilitate, rather than incarcerate, veterans.
I attended a graduation in Judge John Toomey’s Veterans Court in Suffolk County. Twenty veterans who had committed nonviolent crimes and completed treatment protocols were given a second chance to retrieve their lives without going to prison. Meanwhile, a Nassau County jury awarded $8 million in damages to the family of former Marine Lance Cpl. Bartholomew Ryan, an Iraq veteran who suffered from PTSD and addiction and was charged with driving under the influence of drugs. He was not referred to a veterans court, although Nassau’s was operative then. He was remanded to the Nassau jail, where he hanged himself in 2012.
“There is a coming tsunami of . . . veterans who have been wrongly discharged for conduct that was, in fact, PTSD-related at a time when PTSD was not well understood,” Ken Rosenblum, a Vietnam vet and former Army officer who ran the Touro Law Center Vets Clinic, told Newsday.
The Veterans Legal Services Clinic at Yale Law School urged then-President Barack Obama and then-President-elect Donald Trump to institute a process whereby “bad paper” could be eliminated by presidential pardon. In August, the American Bar Association will pass a resolution requesting the remedy.
There is a precedent. President Gerald Ford pardoned 13,000 draft dodgers, and President Jimmy Carter also issued full pardons to those who ducked the Vietnam draft and erased felony-level offenses for thousands of former service members — including deserters.
Trump has repeated his support of veterans. He should consider the pardon and restoration of the honor of those veterans whose “misbehavior” and “bad paper” were caused by service-related mental disabilities.
Sol Wachtler, a former chief judge of New York State who was a sergeant during the Korean War, is distinguished adjunct professor at Touro Law School.