Tag Archives: Kathy Gilberd

New Military Transgender Policy

By Kathleen Gilberd

At the end of June, Secretary of Defense Ashton Carter announced a change in military policy that will allow transgender individuals to serve openly in the military. Under previous policy, they were prohibited from enlisting in the service and subject to administrative discharge if they began gender transition or simply announced their desire to do so. With Directive-Type Memorandum (DTM) 16-005, “Military Service of Transgender Service Members” (http://www.dtic.mil/whs/directives/corres/pdf/DTM-16-005.pdf), and DoD Instruction 1300.28, “In-Service Transition for Transgender Service Members”, DoD has now established an initial policy for retention, service and, eventually, enlistment of transgender individuals. While the new policy has significant limitations, and places much control in the hands of doctors and commanders, it represents a real victory for those who fought against the old policy.

Adjustment disorder discharge

Note: an expanded version of this document in in progress and will be posted here when completed.

How command rids military of unwanted servicemembers

by Kathleen Gilberd

 

Adjustment disorder discharge has become the “go to” discharge category for commands wanting to get rid of troublemakers, whistleblowers, sexual assault complainants, ill or injured servicemembers, and other members not of use to commands. At the same time, this is now a relatively convenient avenue for members seeking discharge from the service.

This discharge has essentially taken the place of personality disorder discharge. For decades, commands used that discharge to get rid of unwanted servicemembers – those whose complaints, non-conformity or medical problems made them trouble for their commands. But in 2008, Congress recognized that personality disorder discharge was being used to deny medical benefits to members suffering from PTSD or other serious illnesses, and so placed constraints on its use.

Under resulting regulations, personality disorder discharge can only be given to combat veterans if the diagnosis is confirmed by a peer mental health professional and reviewed by the service’s Surgeon General. Some services expanded these requirements beyond combat vets. By 2009, adjustment disorder discharge seemed much more attractive to commands and to cooperative military mental health providers.

This was something of a surprise, since the military had not previously used the discharge much – and for many years had not considered adjustment disorders as grounds for discharge at all. Because adjustment disorders are by definition short-term problems, expected to resolve within six months after the end of the stressor which triggers them, and since they are considered eminently treatable, they were normally handled on an out-patient basis without consideration of discharge.

But quite suddenly, with the complications added to personality disorder discharges, military psychiatrists and psychologists began recommending discharge for adjustment disorders, and commands happily followed the recommendations. Navy Times noted in August, 2010 that the rate of Other Designated Physical or Mental Conditions discharges (which included adjustment disorders) had risen significantly since the Congressional action, while personality disorder discharges dropped from 1,072 in 2006 to 260 in 2009.

 

Definitions

In the current Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-5), adjustment disorders are grouped under the general category of “trauma- and stressor-related disorders,” which also includes post-traumatic stress disorder. DSM-5 lists the following criteria for adjustment disorders:

  1. The development of emotional or behavioral symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
  2. The symptom or behaviors are clinically significant, as evidenced by one or both of the following:
  3. Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation.
  4. Significant impairment in social, occupational, or other important areas of functioning.
  5. The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a preexisting mental disorder.
  6. The symptoms do not represent normal bereavement.
  7. Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional six months.

(As of this writing, many military psychiatrists and psychologists continue to use the outdated DSM-IV-TR for diagnostic purposes. While DSM-IV-TR did not include adjustment disorder with stress-related disorders, leaving it as a separate category, the diagnostic criteria are essentially the same.) DSM-5’s examples of adjustment disorder-inducing stressors include, among other things, the termination of a romantic relationship, marked business difficulties, or living in a crime-ridden neighborhood.

Until recently, discharges for adjustment disorder fell under the Convenience of the Government category of “Other Designated Physical or Mental Conditions.” In the most recent revision to its discharge Instruction, DoD renamed ODPMC “Conditions and Circumstances not Constituting a Physical Disability.” DoD 1332.14, Encl. 3.3.a.(8) provides for this discharge for non-disability conditions that “interfere with assignment to or performance of duty.” (Service regulations include AR 635-200, Chapter 5-17, “Other Designated Physical or Mental Conditions;” AFI 36-3208, Chapter 5-11, “Conditions That Interfere with Military Service:” MILPERSMAN 1910-120, “Convenience of the Government – Physical or Mental Condition;” and MARCORSEPMAN, Chapter 6, 6203.2, “Condition Not a Disability.”)

 

Voluntary discharge

In most of the services, adjustment disorder is thought of as a command-directed discharge, and there are no specific provisions for member-initiated voluntary discharges. The Navy alone includes member-initiated requests for discharge in its policy (1910-120.2.b.(2)). Sailors may request discharge when their attending military physician believes the condition exists and “obviates the member’s potential for continued naval service.” Discharge requests will be considered only after all medical treatment options have been exhausted. The medical documentation must show that the condition leaves members incapable of completing military service.

In all services, however, it is possible for members to pursue this discharge. In many cases, it is helpful to begin with an independent civilian evaluation diagnosing the disorder. This can be used with the military’s mental health professionals, whose diagnosis and recommendation are the essential element of the discharge. Commands generally follow these military medical recommendations, often doing so when there are no significant performance problems in the members’ records. When commands prove recalcitrant, a letter from an attorney or advocate, accompanied by the civilian evaluation and referring to the military medical recommendation, may change the command’s mind. Failing that, an Article 138 complaint or Congressional inquiry may be used to put pressure on the command.

 

Involuntary discharge

With increasing frequency, commands are using adjustment disorder discharges as involuntary separations. As was the case with personality disorder discharges, these are often handled sloppily by military medical personnel and commands, so that it may often be possible to challenge the discharge.

Psychiatric requirements

DoD 1332.14, Encl. 3.3.a.(8).(c).1 states that separation for a mental condition under this section requires a diagnosis by an authorized mental health provider, using the DSM, concluding that “the disorder is so severe that the member’s ability to function effectively in the military environment is significantly impaired.” Thus the DoD Instruction requires both severity and a resultant significant impairment in performance. The Army, Air Force and Marine Corps regulations are in accord, but the Navy’s MILPERSMAN 1910-120 is not consistent, requiring only medical documentation that the condition renders the member incapable of completing obligated service – there is no reference to severity. Using the DoD Instruction, advocates can still argue in Marine cases that the discharge is inappropriate where the medical evidence does not state that an adjustment disorder is of such severity.

DoD 1332.14, Encl. 3.a.(8).(f) specifically requires that discharge documentation must include evidence of inability to function effectively because of the mental condition. Presumably, given the language of section (c).1, this is a psychiatric determination, rather than one which should be made by the command. The Army regulation does not mention this requirement; the MILPERSMAN section notes that discharge packages must include counseling statements showing deficiencies related to the condition.

The Marine Corps regulation does not include the requirement of a medical finding that the condition interferes with (or is so severe that it interferes with) performance of duties. It does, however, require that the medical opinion conclude the member’s condition is beyond his or her control (though this is not always followed).

As a rule, military psychiatrists and psychologists are familiar with the language required for a discharge recommendation, and often use boilerplate language from the regulation to describe severity. Where they do not, however, lack of mention of severity and its relation to performance of duties may provide a basis for challenging the discharge.

When working with members who have received adjustment disorder diagnoses, it is always useful to question the accuracy of the military diagnoses, to determine whether they over-diagnose occupational problems or a willingness to make complaints, or whether they under-diagnose more serious disorders warranting medical retirement. An independent civilian evaluation (or more than one) is always important in challenging adjustment disorder discharge.

 

Performance requirements

The mere existence of an adjustment disorder, even a severe one, is not sufficient for discharge; there must be a showing of (resultant) performance problems. AFI 36-3208, 5-11, for example, states that a recommendation for discharge “must be supported by documents confirming the existence of the condition or disorder and…explain the adverse effect on assignment or duty performance. This explanation should detail the effects on member’s performance, conduct (on and off duty), inability to adapt to military environment, or other reasons that would limit the member’s potential for completing his or her enlistment.” The Air Force Instruction further states that the psychiatric conclusion of severity causing significant interference with performance cannot take the place of (command) explanation of the adverse effect on performance. (5-11.9)

 

Command requirements

In the Marine Corps and Air Force, commands may ignore medical recommendations for adjustment disorder discharge (or other Conditions and Circumstances not Constituting a Physical Disability discharge), though this is not common. In the Navy, where the discharge may be based on operational unsuitability or assignment screening findings (findings that a member is not worldwide deployable), COs who believe that members have potential for further service may submit a package with the CO’s recommendation for retention. The package is reviewed by NAVPERSCOM and the Chief of Naval Operations, and retention may be granted if it serves the needs of the Navy (1910-120.3.f and g). For the Air Force, AFI 36-3208, section 5-11 requires that commanders who do not follow psychiatric recommendations for discharge must have the decision reviewed by the discharge authority.

 

Counseling and opportunity to overcome deficiencies

DoD 1332.14, Encl. 3.3.a.(8)(a).2 states that separation processing “will not be initiated until the enlisted Service member has been formally counseled on his or her deficiencies and has been given an opportunity to correct those deficiencies.” Further, the Instruction requires that separation may occur only if “[o]bserved behavior of specific deficiencies [is] documented in appropriate counseling or personnel records. Documentation will include history from supervisors, peers, and others, as necessary to establish that the behavior is persistent, interferes with assignment to or performance of duty, and has continued after the enlisted Service member was counseled and afforded an opportunity to overcome the deficiencies.”((c)1.b) The Instruction states that the counseling must be in writing((c).2). (See also Encl. 4. part 1.b.(2), which discusses the potential for rehabilitation.)

The Army normally uses “developmental counseling statements” to record such counseling. In the Air Force, documentation of performance problems, etc., may be shown by evaluation(s), counseling statement(s), training records, statements from instructors or supervisors or peers, or other administrative actions or documentation. The Air Force Instruction specifically points out that counseling must predate the discharge recommendation, and “[t]he discharge case must contain documentation of the counseling tailored to the specific condition or mental disorder, i.e., reason for discharge.” The Navy policy requires formal counseling with use of NAVPERS form 1070/613 (a counseling statement) concerning “performance deficiencies related to the physical or behavioral condition, and states that “The CO must provide the member reasonable time to overcome deficiencies (if possible) as reflected in appropriate counseling or personnel records.” (1910-120, 2.b.(1))

Failure to provide adequate and timely counseling is common in adjustment disorder discharge cases, and can provide a basis to challenge the discharge. For example, commands that counsel members for the first time only days before discharge notification clearly have not provided an opportunity to overcome the performance problems, as required by service regulations and the DoD Instruction. Commands that fail to include a warning about potential discharge in one counseling statement have not fulfilled the requirements of the regulations.

Occasionally, commands will fail to counsel members at all prior to initiating discharge proceedings. Raising these issues may only provide a delay in the proceedings, while commands provide the necessary counseling and time to overcome difficulties before re-initiating discharge proceedings. But the delay may provide members time for civilian evaluations, documentation of actual performance, or a real improvement in performance.

 

Special provisions for combat-area servicemembers

Congress has shown its concern over misuse and overuse of adjustment disorder and similar discharges. As a result, the DoD Instruction has expanded the special provisions governing personality disorders to all other mental disorders not constituting a disability. Under the current DoD Instruction, members who have served or are serving in an imminent danger pay area must have the diagnosis corroborated by a peer or higher-level mental health professional and endorsed by the service’s Surgeon General ((c).4).

The assessments must address PTSD and “other mental illness co-morbidity” ((c).4.c), and members may not be separated under this section for a mental condition if service-related PTSD is diagnosed, unless they are found fit by the disability evaluation system. This provision has not made its way into all of the service regulations, and it is not clear that military doctors and commands are consistently following it.

 

Retaliation for sexual assault reports

Congress has pressed the military to examine the use of involuntary administrative discharge as retaliation for making complaints of sexual assault. As a result, servicemembers should be given an opportunity to state that they believe the discharge is so retaliatory, in which case the separation should be reviewed by an officer who is a general court-martial convening authority.

Some services now include questions about possible retaliation in the statement of awareness/waiver of rights forms given to servicemembers with discharge notification letters. The Air Force Instruction’s section on Conditions that Interfere with Military Service specifically mentions that a GCMCA must review the discharge if servicemembers allege that the discharge is in retaliation for an unrestricted (non-confidential) report of sexual assault. (5.12)

 

Notification procedure

The Notification Procedure is used to process adjustment disorder discharges, which means that members are not entitled to hearings before administrative discharge boards unless they have been in the service for six years. Instead, members may submit written statements (and any supporting evidence they wish) challenging the discharge. In addition, they have the right to consult with military counsel, who will sometimes, but not always, assist in crafting a statement; and they are entitled to see all of the documents to be forwarded to the discharge authority in support of the discharge.

Common wisdom has it that statements are of little value in challenging admin discharges, but this is not always the case. Lawyerly statements or briefs pointing to errors in the diagnosis or in the command’s adherence to the regulations, supported by documentation such as civilian evaluations, statements by other members familiar with the clients’ work performance, evidence that the discharge may be retaliatory for whistleblowing or sexual assault/sexual harassment complaints, etc., can have a significant impact.

 

Characterization

The character of discharge for Conditions and Circumstances not Constituting a Physical Disability is “type warranted by service record.” If a general discharge is contemplated, DoD requires that the notice provide the member with specific factors in the service record which warrant the characterization, unless characterization is determined on the basis of standardized numerical scoring of performance evaluations. (8.c). The specific service regulations do not all mention this requirement.

Since performance problems may result in lowered performance evaluations and other adverse personnel entries, one cannot always assume that this discharge will be fully honorable. Servicemembers and advocates can argue in the discharge statement that any performance problems result from the mental disorder (as required for the discharge), and should not be considered in characterization. This can be supported by civilian mental evaluations showing that the performance problems resulted from the disorder and were not intentional.

 

Chronic adjustment disorder

In 2013, DoD revised one of its disability Instructions, DoD 1332.38, to designate chronic adjustment disorder as a potentially compensable disability, requiring referral to a medical evaluation board and disability evaluation proceedings. This Instruction was cancelled in a recent revision to military disability policy, but chronic adjustment disorder should remain a disability condition. (See ALARACT 178/2013 for Army policy.) The condition is not commonly diagnosed by military psychiatrists or psychologists, and chronicity is an appropriate question to address in independent civilian evaluations.

 

Conclusion

Adjustment Disorder discharges are often subject to abuse by commands for purposes of retaliation. However, this discharge can also be used by service members affirmatively if they are suffering from adjustment disorder. Attorneys and counselors should be prepared to confront both possibilities.

 

Kathleen Gilberd is a legal worker in San Diego, California, and the executive director of the Military Law Task Force.

Military Sexual Violence

A Guide to Sexual Assault and Sexual Harassment Policies in the U.S. Armed Forces for Servicemembers, MSV Survivors and Their Advocates

By Kathleen Gilberd

Download PDF of this content for offline reading/printing

Table of Contents

Kathy Johnson, Jim Klimaski, Jon Pinkus and Brad Thomason assisted in editing this publication. Rena Guay contributed proofreading and digital production.
Introduction

While sexual assault and sexual harassment have long been serious problems in the armed forces, in recent years they have become epidemic. DoD’s own reports estimate that over 26,000 servicemembers, both men and women, were assaulted in 2012. The reports also show that many members are afraid to report assaults or harassment — often out of fear of command retaliation — and that when reports are made, they are often ignored or retaliation does, in fact, occur.

This publication gives an overview of the policy for reporting sexual assault and harassment, along with remedies for retaliation and harassment — critical information everyone in the military should have before they need it. It is written for assault and harassment victims/survivors, but it is just as useful for lay counselors or attorneys assisting victims in securing their rights.

Because of the increasing attention to this problem, public outrage, and congressional scrutiny, this area of military law is currently changing.  Before taking action, we recommend consulting one of the groups listed under the Resources section, or visit our website for any recent policy changes. The groups we’ve listed can also provide referrals to military counselors or attorneys to assist a victim in making a complaint and avoiding reprisals. Updates on military sexual assault policy are also posted on our website at nlgmltf.org

Military Psychiatric Policies and Discharges

This memo was first written for the Winter, 2004, issue of the MLTF newsletter, On Watch, and was updated in April, 2017. The author is Kathleen Gilberd, a legal worker in San Diego, California, and the executive director of the MLTF.

It includes a summary of the diagnostic and classification system used by the military, discussion of psychiatric criteria for medical discharge or retirement and administrative discharges, and some practical counseling suggestions for attorneys and counselors handling these cases. The memo does not offer a critique of the conservative psychiatric model and assumptions on which the policies are based, but the author does not mean to suggest such a critique is unwarranted.

Available as responsive web page or PDF for printing.

Representing Servicemembers in Involuntary Discharge Proceedings

Download PDF of this content for offline reading

This memo is designed for attorneys and counselors assisting enlisted servicemembers in challenging involuntary administrative discharges. It appeared originally as a series of articles in the MLTF quarterly publication, On Watch, and has been updated as of October 2013. Parts I and II were written by Kathleen Gilberd, a legal worker in San Diego who works in the areas of discharges and discharge review, and is executive director of the MLTF. Part III was written by Bridget Wilson, who practices military law in San Diego and is a volunteer attorney with the Servicemembers Legal Defense Network.

Part I: Administrative Discharges Generally, and Notification Procedure Discharges 

Part II:  Administrative Discharge Board Procedure Discharges 

Part III:  Administrative Discharge Board Tactics