'Bad Paper' Discharges Would Get Final Pentagon Review in Defense Bill

The massive defense policy bill that passed the House last week called for the Defense Department to review upgrade requests to so-called "bad paper" discharges that have already been rejected by military service branches.

The bill would also require the Boards of Correction of Military Records and Discharge Review Boards of the service branches to seek the "advice and counsel" of a psychiatrist, psychologist or social worker -- one with training on mental health issues including post-traumatic stress and traumatic brain injury -- before deciding on upgrades.

In addition, the bill would require the boards to seek similar professional advice in cases involving sexual trauma or spousal abuse.

Related: Bill Would Give Vets with ‘Bad Paper’ Discharges Better Appeal Options

The bill states that the secretary of defense, upon receiving a petition from an individual whose upgrade request has been rejected, could order the service branch secretaries to grant the upgrade "if the Secretary of Defense determines that such recommendation is appropriate after review."

The proposal is included in the National Defense Authorization Act for fiscal 2020 which passed in the House last week by a vote of 377-48.

The bill faces a vote in the full Senate this week as Congress seeks to avoid a government shutdown on Dec. 21, when a continuing resolution is set to expire.

According to the Department of Veterans Affairs, more than 500,000 veterans currently have less-than-honorable discharges, and most of them cannot access VA medical care because of their discharge status.

In 2017, the VA began a program in which those with less-than-honorable discharges could get up to 90 days of mental health treatment at the VA in an emergency.

For years, veterans service organizations and advocacy groups have argued that the service review boards were failing to take into account that PTSD or TBI may have led to the conduct that resulted in the less-than-honorable discharges.

In a 2017 report, the Government Accountability Office said that 62% of the roughly 92,000 personnel separated for misconduct between fiscal 2011 and fiscal 2015 had been diagnosed with PTSD or TBI.

The rejection of upgrade requests is now the subject of a class action lawsuit against the Navy in federal district court in New Haven, Connecticut. The suit is supported by the National Veterans Council for Legal Redress and the Yale Law School Veterans Legal Services Clinic.

On its website, the Yale Clinic charged that the Naval Discharge Review Board has been denying 85% of applications it reviews.

"The class action lawsuit challenges the NDRB's refusal to adequately consider mental health conditions and its failure to adjudicate these applications consistent with constitutional due process guarantees," the site states.

On Nov. 7, U.S. District Judge Charles Haight, Jr., denied the Navy's motion to dismiss the class-action suit for upgrade filed by Marine veteran Tyson Manker, who served with 3rd Battalion, 7th Marines, in Iraq.

Manker has said that he received a less-than-honorable discharge for a single incident of self-medicating with marijuana while off-duty to treat the PTSD he was experiencing.

-- Richard Sisk can be reached at Richard.Sisk@Military.com.

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