By | 05/04/2017
This entry is part of On Watch 28.1 Spring 2017

On December 23, 2016, President Obama signed the National Defense Authorization Act of 2017. Although the Act deals primarily with funds and authorizations for the military’s bloated budget, it always contains policies affecting military personnel and veterans.

The following is a review of the most significant changes:

Discharge review provisions

Section 533 of the Act requires the Boards for Correction of Military/Naval Records (BCM/NRs) and the Discharge Review Boards (DRBs) to publish the number of cases considered. Publication must be done quarterly on public websites. The listings will denote cases where applicants contend their discharges were based in whole or part on mental health problems, cases where applicants had served in combat areas, and cases resulting in upgrades. This section does not require the Boards to publish the decisional documents themselves on these websites (they are currently published in difficult-to-use electronic libraries). While section 534 requires the publication of BCM/NR decisions, it is not clear whether this will be done separately from the existing electronic library.

There are several substantive changes to section 534. Under this section, the Boards for Correction will be required to advise applicants if they determine that their claims have insufficient information or documentation; they must tell applicants specifically what information they think would be necessary to make the claim “complete and reviewable.” If claimants cannot provide military personnel or medical records, the Boards are to make “reasonable efforts” to obtain the records, and provide the claimants with copies.

Section 534 also states that, when a case has been denied by the BCM/NR, a request for reconsideration may be filed at any time. This is an important change, as the Army and Navy Boards have recently refused to accept requests for reconsideration not filed within a year of the initial denial. Under this provision, a reconsideration request may be based on any “materials not previously presented to or considered by the board…” In the past, the Boards accepted requests for reconsideration only if they contained “new material evidence,” and sometimes defined this very narrowly.

Finally, Section 534 also requires the Board for Correction to develop a comprehensive training curriculum for Board members, including training in appropriate areas of administrative law.

Section 535 addresses applications to the Discharge Review Boards made by veterans who raise post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI) “in connection with combat or sexual trauma as a basis for review of discharge.” While the DRBs and BCM/NRs have been ordered to give consideration to combat-related PTSD and TBI in recent years, this is the first time that military sexual trauma has been included. The section requires the DRBs to consider VA records or civilian medical records submitted as evidence of PTSD or TBI, and to “review the case with liberal consideration to the former member that post-traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances resulting in the discharge…”

Whistleblower protection

Section 536 requires the Controller General of the US to submit to Congress a report on the integrity of the DOD whistleblower program within 18 months after the Act is signed. The report must assess whether the DOD program meets the executive branch’s policies and goals for whistleblower programs; whether its procedures are adequate to protect employees of the DoD Inspector General’s (IG’s) office who are whistleblowers; whether confidentiality of whistleblowers is properly maintained by the IG’s office; and other issues concerning the effectiveness of the whistleblower program.

Section 531 improves other protections for military whistleblowers as well. It expands the definition of prohibited personnel actions which may be viewed as retaliation for whistleblowing; these will now include command failure to respond to retaliatory action or harassment by others in the command, and retaliatory investigations of the whistleblower. Under this section, if the IG makes a preliminary determination that “more likely than not” a prohibited retaliatory action has been taken against a whistleblower, and if the action will cause an immediate hardship to the whistleblower, the IG will notify the Secretary of the Service, who will “take such action as [he or she] deems appropriate.” (This could remedy, for instance, a retaliatory transfer away from the whistleblower’s family or, hopefully, retaliatory harassment resulting in emotional distress.) The section also requires the IG’s office to periodically notify the whistleblower, the Secretary of Defense, and the Secretary of the Service of the status of the investigation.

When whistleblower complaints involving retaliatory action are taken to the BCM/NRs, section 531 requires the Boards to review the relevant IG report and, if appropriate, to ask the IG to develop further evidence in the case. The Boards may “receive oral argument, examine and cross-examine witnesses and take depositions,” which are unique in Board for Correction cases, and will consider an applicant’s request for an evidentiary hearing, a rarity in BCM/NR cases. (These provisions are already contained in the Military Whistleblower Protection Act, 10 USC 1034.)

Also under this section, the DoD IG is to prepare uniform standards for investigating retaliatory actions, and for the training of IG staffs on the conduct of investigations.

PTSD, TBI and military sexual trauma

Under previous legislation, the services have been required to conduct medical evaluations of PTSD or TBI for servicemembers facing administrative discharges under other than honorable conditions, if the members had been deployed to a combat area in the previous 24 months and had been diagnosed with or “reasonably asserted” that they had PTSD or TBI. Separation authorities were then required to consider whether these medical conditions constituted matters in mitigation warranting a better character of discharge. Servicewomen’s advocates have long argued that survivors of military sexual trauma should also be afforded such evaluations and consideration. Now, section 524 of the NDAA adds sexual assault as a basis for such PTSD or TBI evaluation and consideration of characterization of discharge. (DoD has just added this provision to Change 2 of DoD Instruction 1332.14, at enclosure 5, section 9.)

Sexual harassment definition

Section 548 revises the definition of sexual harassment for purposes of investigating sexual harassment complaints within the military, set out in 10 USC 1561. While the prior definition referred to harassment that created a hostile “work environment,” this section replaces the term with “environment,” covering the variety of military settings and situations in which harassment may occur. The section also deletes the term “constituting a form of sex discrimination” from the definition of harassment.

Hazing

The problem of hazing in the military is addressed in section 549. DoD will now be required to set up a comprehensive data collection system to track incidents of hazing throughout the services. Guidance about the use of the database will include “information on protected classes, such as race and religion, who are often the victims of hazing.” The services are to work to improve training of military personnel to “better recognize, prevent and respond to hazing at all command levels.” Each branch of service will be required to make annual reports to Congress on hazing discussing, among other things, the previous year’s efforts to track and encourage reporting and anonymous reporting of hazing.

Medical retirement

Section 525 reduces the time that medically retired servicemembers placed on the Temporary Disability Retirement List (TDRL) must remain on that temporary list and undergo periodic medical examinations before being transferred to permanent medical retirement. Rather than spending five years on the TDRL, subject to reevaluation and removal from medical retirement, these servicemembers will now be transferred to the permanent list after three years on the TDRL.

As always, the test for the effectiveness of these improvements will be in their implementation. Hopefully counselors and attorneys will be able to work effectively with servicemembers affected by these changes and use them for their benefit. We will have to wait and see if the services comply with the new reporting requirements and if those reports lead to any changes or improvements in policies.

Kathleen Gilberd is a legal worker in San Diego, California, working primarily on discharges and discharge review, and is the executive director of the Military Law Task Force of the National Lawyers Guild.

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About Kathleen Gilberd

Kathleen Gilberd is a legal worker in San Diego, California, working in the areas of discharges and discharge review. She is the Executive Director of The Military Law Task Force. She works extensively with the San Diego Military Counseling Project and serves on the board of directors of the national GI Rights Network. She is the author (with Majorie Cohn) of 'Rules of Disengagement: the Politics and Honor of Military Dissent'. She was also the contributing author in Clark Boardman Callahan’s 'Sexual Orientation and the Law'. Her website can be found at KathleenGilberd.com.