Discharge upgrade for Vietnam vet part 2: the legal roadmap

by | Apr 10, 2021 | Advocacy & News, On Watch

The Story of JG: September 20, 1950 – May 20, 2020

By Deborah Karpatkin

Here continues the story of JG, a Vietnam combat veteran, recently lost to the COVID-19 Pandemic. Part I (Fall 2020 issue of On Watch) told JG’s story: his education, his Vietnam experience, and the aftermath.[1] Part II tells the legal story: the investigation and legal arguments that ultimately proved successful in gaining JG upgrade to a fully honorable discharge.

It took a team to get justice for JG. At its core were the lawyers and advocates at NYC Veteran Advocacy Project, with whom I worked as pro bono counsel.[2] Here are eight guideposts.

  1. The legal framework: PTSD and TBI may mitigate bad discharges, requiring reconsideration.

In recent years, the law became much more favorable for veterans with PTSD and TBI, creating new opportunities for veterans like JG, who had been repeatedly denied discharge upgrade in years past.

The 9/3/2014 Hagel Memorandum[3] acknowledged that PTSD was not recognized as a diagnosis during the Vietnam era, and required review boards to give full and careful consideration every petition brought by a Vietnam veteran based on PTSD. In cases where PTSD and related conditions “may be reasonably determined to have existed at the time of discharge, these conditions will be considered potential mitigating factors in the misconduct that caused the [OTH] characterization of service.” The mitigating evidence of undiagnosed combated-related PTSD and related conditions must be “carefully weighed against the severity of the misconduct.” The Hagel Memorandum required liberal waiver of time limits to reconsider decisions, and timely consideration of such cases. Its Supplemental Guidance detailed medical guidance for PTSD and related conditions, with “liberal” consideration when service-related PTSD is diagnosed by civilian providers, and “special” consideration when the Department of Veterans Affairs (VA) determines PTSD and related conditions connected to military service.

The 11/3/2014 McHugh Memorandum[4] required prioritized review of applicants with service in the Vietnam theater, and immediate implementation of the Hagel Memorandum’s supplemental guidance for all boards reviewing the characterization of discharges.

The 2/26/2016 Carson Memorandum[5] confirmed that TBI is a PTSD-related condition; and that Discharge Review Boards, upon petition, must grant de novo review utilizing the Supplemental Guidance.

These memoranda were codified in the Fairness for Veterans Act,[6] signed by President Obama on December 23, 2016 and requiring liberal consideration for petitions for changes in discharge status to honorable, if the servicemember has been diagnosed with PTSD, TBI, or related conditions in connection with their military service.

  1. Know your client: the story, the military records, and other records.

The client’s trust. It took several meetings with JG to gain his trust and learn and understand his story. It took several meetings to review JG’s written statement with him, to ensure that was faithful to his experience. All meetings were in person, to aid in mutual understanding and clarity. All papers submitted on his behalf, or requiring his signature, were read aloud with him, to ensure understanding and clarity.

Military records. The Veteran Advocacy Project had helpfully already collected JG’s military records. I focused in particular on his enlistment and training documents, for his aptitude test results and other indications of intellectual and reading limitations. For example, JG’s military records included the results of his advanced (AIT) training, and the graduation roster showed that he was unable to complete the leadership course and become a squad leader for academic reasons.

Prior discharge upgrade applications. JG’s past efforts at discharge upgrade told a compelling story. JG tried to upgrade his discharge status for more than forty years. His applications described symptoms of PTSD, but past review boards failed to credit those facts as mitigating.

For example, the transcript of JG’s 1975 hearing before the Army Discharge Review Board described JG’s “inability to control stress … pushed him over the hill, so to speak, so that he incurred this long period of AWOL,” and also referred to it being “incurred in fear.” I argued that this was early documentation of JG’s PTSD symptoms, because “inability to control stress” and “fear” are both significant symptoms and indicators of PTSD.

Undeterred, and without benefit of counsel, JG repeatedly sought Review Board consideration of his OTH discharge, without counsel or representative. In 1977, he wrote about the hardship he faced because of his bad discharge: “I do not have a criminal record. And I can’t get a good steady job.” In 2007, JG asked for an upgrade “to restore my sanity.” In 2008, he wrote explicitly about his Vietnam trauma: “I had seen things I never seen before examples such as seeing dead bodies, smelling bodies and sleeping with dead bodies. Just to survive. It took a mental and physicology [sic] effect on me. Effects like flashback, hearing voices which continue been [sic] a danger to myself and others.” JG also explained that he went home to care for his mother “because of a mental problem I was going through at the time I was confused.” “I didn’t know the right protocol at the time.” In 2009, JG wrote to request reopening of his case. In 2011, JG submitted another application for discharge review, noting that he was “being treated at an outside facility for my illness which as [sic] affected me after leaving Vietnam such as Flashback and hearing voices.”

All JG’s upgrade requests were denied. The 2011 denial noted the prior denials, returned his request without action, and stated that the ABCMR “will not consider any further requests for reconsideration of this matter.”

Medical Records, Military and Civilian. JG’s Army records included his medical treatment for traumatic brain injury. His civilian medical treatment records included mental health treatment, and a diagnosis of PTSD, linked to his military service and his traumatic experience in Vietnam. The civilian records describe all of the symptoms of Vietnam service-related PTSD: “Vietnam war survivor, veteran, has serious flashback of murdered children and families. Psychotic symptoms increased and cd become more sick.” “Psychotic symptoms intensified as Vietnam flashback returned.” Consistent with his poor intellectual capacity in school and in the Army, the records describe JG as having poor abstract thinking, poor concentration, poor calculation, and poor knowledge of general information, and reports a GAF Score of 50-41, indicating serious impairment in social, occupational, or school functioning.

JG’s treatment records thus document symptoms are consistent with the DSM-V diagnostic criteria for PTSD: direct exposure to the stressor highly traumatic combat service (criterion A); intrusive memories and flashbacks (criterion B); trauma related thoughts and feelings (criterion C); negative alterations in mood after Vietnam (criterion D); trauma-related alterations in arousal and reactivity (criterion E); prolonged duration (criterion F); and significant functional impairment (criterion G).[7]

Further treatment with a credentialed social worker confirmed a diagnosis of combat-related PTSD (Diagnosis Code 308.91). Her notes and diagnostic tests confirmed that JG was highly traumatized by his Vietnam experience and his PTSD triggers were Vietnam-related. Her notes document JG’s tears, nightmares, and the details of his traumatic combat episodes. She performed a Davidson Trauma Scale (“DTS”) Test for PTSD – JG scored 50/68 on severity, and 51 or 52/68 on frequency, for a total score of 111/136.[8]

In 2015, the Department of Veterans Affairs decided that JG was eligible for treatment based on his character of discharge, and further that he had a 70% service connected disability due to PTSD. By determining that his PTSD was “service connected,” see 38 U.S.C. §101(16), the DVA recognized that JG’s PTSD was “incurred in the line of … active military … service.”

This was all new evidence. No prior discharge review board had the opportunity to consider JG’s substantial evidence of PTSD and TBI as factors contributing to the events which were the basis for his OTH discharge.

Education Records. To my surprise, JG’s NYC high school still had his education records, and sent them to me. The records confirmed JG’s third grade reading score and low IQ. These were consistent with JG’s enlistment records, which included the results of military aptitude tests Research confirmed that JG’s military aptitude test scores correlated with his school IQ tests. [9]

This was also new evidence. JG’s education records had not previously been considered in his multiple efforts for discharge upgrade. No previous discharge review board had the opportunity consider JG’s educational background, low IQ score, and very low reading ability.

His Buddy Michael. JG didn’t have Michael’s last name, but with the details we had (first name, dates, military assignment) we were able to plausibly identify him via the Virtual Wall Profile as Infantryman Michael G, who served with JG in 101st Airborne, 501st Delta Company, 1st Battalion. MG’s service in Vietnam began in January 1971, as did JGs’. His death is recorded as “hostile,” a “ground casualty,” by “other explosive device:” all facts consistent with JG’s report of this extraordinarily traumatic incident.

Facts about JG’s Service in Vietnam. Through records review we were able to draw a picture of JG’s honorable service in Vietnam. He had no behavioral problems during training or in Vietnam, was promoted, and was awarded various medals for his Vietnam service, and was commended for his “excellent conduct and efficiency.”

  1. Consult experts.

We were fortunate to have the assistance of Dr. KD, a neuropsychologist who reviewed JG’s school records, and the records of his TBI.

According to Dr. KD, JG’s school records show that at age 12, his scores on the Wechsler Intelligence Scale for Children (WISC) were in the “low borderline” range of function. His Full Scale IQ of 72 was a full two standard deviations below average; cut-off for being considered mentally retarded is 69, just a few points lower. Dr. KD confirmed that in 1970, when JG was inducted, he had borderline intellectual functioning and, consistent with his reading test levels in 1968 and 1966, was likely to be reading at the early third grade level.

Dr. KD’s records review and report allowed us to argue, based on both his school records and his military aptitude tests, that never had the intellectual ability to serve in the Army: from the outset, he lacked total military capability to serve.

Dr. KD’s report gave important context to JG’s actions after the Jeep accident, both to mitigate his subsequent AWOL, and to support counsel’s arguments that JG did not understand the papers that he signed in connection with his OTH discharge. In her opinion, JG “may not have had the intellectual capacity to comprehend a complex legal document at baseline; that is, prior to his traumatic brain injury. She notes that “following a traumatic brain injury, it is even more likely that JG would not have had the capacity to understand such a document and to appreciate the consequences of signing same.”

  1. Historical Research: “Project 100,000”

JG may have been drafted because of the Army’s then-operating “Project 100,000/New Standards Program.” Seeking to “broaden the manpower pool subject to the draft,” the New Standards Program, which ran from 1966 through December 1971, was intended to qualify 100,000 men a year who had failed mental and educational standards, primarily by lowering the test score and educational standards. Most “New Standards men” were destined for infantry.[10]

No official paper formally designated JG as a “New Standards Man,” but the “administratively accepted” mark on the “Section V – Mental Determination,” next to his AFQT Level V score, is telling, given that “Project 100,000” was in effect when JG was inducted.

The New Standards Program’s problems were evident. In line with JG’s experience, New Standards men had “higher incidence of non-judicial punishment and court-martial than the control group.”[11] Derisively called the “Moron Corps” by some, the Program was harshly viewed. One recent critic described it as “a one-way ticket to Vietnam, where these men fought and died in disproportionate numbers…the men of the ‘Moron Corps’ provided the necessary cannon fodder to help evade the political horror of dropping student deferments or calling up the reserves, which were sanctuaries for the lily-white.”[12]

As described by one court, “Project 100,000 … has been severely criticized,” noting that, according to “[c]ritics … Project 100,000 enlistees were the first to be sent to Vietnam, the last to be promoted, and received more than their share of bad discharges.”[13] Another court noted the “tragic consequences” of the departure from normal induction standards.[14] Recent scholarship has revealed the extent to which the “Project 100,000”/New Standards Men” suffered in Vietnam to a far greater extent than their more able counterparts.[15]

We found other authority sympathetic to the circumstance of veterans with low aptitude test scores. In Henry v. Department of Navy, 755 F. Supp. 1442 (E.D. Ark. 1991): the Court ordered that this Marine who served in Vietnam’s discharge be re-categorized as “honorable,” taking into account his intellectual limitations and personal stress as mitigating factors for an upgrade. Of note, Henry’s misconduct was far more severe than JG’s – his OTH discharge was based on an assault as well as unauthorized absence. And Henry’s intellectual limitations were not as severe as JG’s: his AFQT score of 18 was higher than JG’s score of 2.

In Blassingame v. Secretary of Navy, 811 F. 2d 65 (2nd Cir. 1987): The Second Circuit ordered that Blassingame’s application for review of his discharge upgrade to proceed. The court noted Blassingame’s youth, educational deficiencies, and low aptitude test scores, before concluding, sympathetically, that “interests of justice” required consideration of his claims.

  1. Identify mitigating factors.

JG’s PTSD and TBI were of course the primary mitigating factors supporting his claim for discharge upgrade. In addition, I was able to confirm that JG had no law enforcement record after discharge and had a track record of recovery from substance abuse. Despite the challenges of his life, JG found the strength to overcome adversity. He took some literacy classes, and his reading got a little better. He entered a substance abuse treatment program, and with diligent effort, ended his dependence on illegal drugs and alcohol.

  1. Legal Arguments: “inequity” and “impropriety”.

Arguments for reconsideration of discharge are framed in accordance with Department of Defense Instruction 1332.28, on the basis of “inequity” and “impropriety.[16]

Issues of Inequity. These arguments focus on changes in policies and procedures; whether the discharge was inconsistent with military standards and discipline, and the applicant’s service record and other evidence. We advanced a number of arguments that the OTH was inequitable, and that JG deserved a fully Honorable Discharge.

  1. The OTH was inequitable because JG’s TBI and PTSD were not considered as mitigation.[17] We argued:
      • Legally mandated “liberal” and “special” consideration warranted upgrade of JG’s discharge to fully Honorable, because they created a presumption in favor of JG, given his medically supported evidence of PTSD.
      • JG’s military record demonstrates that his PTSD and TBI existed at the time of his discharge, and his medical records document the traumatic events.
      • JG didn’t receive the pre-OTH medical examination required by DoDI 1332.14, to assess for the effects of PTSD and TBI, as extenuating circumstances.
      • JG’s medical record provides a civilian diagnosis of PTSD, incurred during his military service, and accepted by the VA as existing at the time of discharge.
      • JG’s limited intellectual capacity is a significant and important mitigating factor, along with his voluntary return to military control; his record of meritorious service in Vietnam combat; the absence of any record of serious misconduct; his law-abiding post-service life; and the continuing harm he experienced as a result of the OTH and his struggles with PTSD and TBI.
      • JG had no history of misconduct prior to the traumatic event. His problems started only after combat trauma, and the TBI, on his return to Fort Dix.
      • JG’s conduct was not premeditated. His AWOL was impulsive, predicated by the very disturbing news that his mother was very ill. JG’s intellectual limitations were such that he could not navigate any appeal of the denial of leave.
      • JG’s misconduct — periods of absence — was nonviolent, and did not involve substance use or abuse. He voluntarily returned to military control. This is not “serious” misconduct.
  2. The OTH was inequitable because JG wouldn’t have been drafted today, due to his limited intellectual capacity. Today, a person with JG’s military aptitude scores would be rejected from military service. While the New Standards Program may have been acceptable at the time, there is “considerable doubt” that it would be acceptable today, as there is “considerable doubt” that JG’s discharge outcome would be the same today – because he never would have been eligible for induction.
  3. The OTH was inequitable because JG had a good service record and service history, but limited capacity for responsibility.[18] JG’s military records showed that he was rated “excellent” for conduct and efficiency for his duty as a machine gunner in Vietnam, and that he was awarded medals for his combat service. His limited capacity for responsibility was inherent in his low aptitude scores, and his inability to graduate from the leadership training course.
  4. The OTH was inequitable because, based on his service record and other evidence, JG lacked total capability to serve.[19] Support for this argument came from JG’s military aptitude scores; scholarship about the “Project 100,000/New Standards Men”; and Dr. KD’s records review and report.
  5. The OTH was arbitrary and capricious.[20] First, due to his low aptitude scores, JG should never have been drafted in the first place; and second, it was arbitrary to deny JG leave to be with his seriously ill mother.

Issues of Propriety. This requires the applicant to identify an error of law, fact, procedure or discretion, prejudicing their rights, or a change in policy, made expressly retroactive to the type of discharge under consideration. Here, we argued that because JG could not read and understand the legal documents he was required to sign at discharge, he could not validly waive his rights, and that his OTH discharge was thus unjust and improper due to errors of law and procedure. This argument was supported by Dr. KD’s Report, which concluded that JG “may not have had the intellectual capacity to comprehend a complex legal document at his baseline; that is, prior to his traumatic brain injury. Following a traumatic brain injury, it is even more likely that JG would not have had the capacity to understand such a document and to appreciate the consequences of signing same.”

  1. Identify Applicable Precedent.

We marshalled all available authority to support upgrading JG to a fully Honorable discharge. We focused our research on Review Board precedent granting a fully Honorable discharge based on PTSD and TBI, and found the following:

    1. AR 20150018572 (Board Date 15 Nov. 2016): The Board granted an upgrade from OTH to honorable, in light of arbitrary and capricious action by the applicant’s command, and personal testimony mitigating the applicant’s misconduct. The applicant was also granted a change in narrative reason. The applicant was 31 years old at enlistment, a high school graduate, and had a GT score of 120. The applicant’s misconduct included Article 15’s for AWOL, for altering military documents with intent to deceive, and for stealing and cashing another person’s money order. Despite this pattern of misconduct, the Board concluded, with evidence in the record of documentation supporting an in-service diagnosis of PTSD, that the OTH discharge was no longer equitable. We noted that JG’s misconduct did not involve intentional misconduct, and his GT score of 50 was markedly lower than this applicant.
    2. AR 20150010075 (Board Date 8 Nov. 2016): The Board granted an upgrade from OTH to honorable (general) on reconsideration of evidence that the applicant’s PTSD was a catalyst for her lengthy AWOL misconduct. The Board noted that avoidance misbehavior like AWOL can be associated with PTSD. The Board also restored the applicant’s rank. Like this applicant, JG’s lengthy AWOL can be understood as avoidance misbehavior, especially where, as here, he lacked total capabilities.
    3. AR 20160008510 (Hearing conducted 26 Sept. 2016): The Board granted an upgrade to Honorable to an applicant who was diagnosed with PTSD, TBI, and other mental health issues. The Board concluded that the OTH discharge was too harsh, notwithstanding misconduct of assault (choking and punching another soldier). The applicant was a high school graduate with a GT score of 123. We noted that JG’s misconduct did not include any violence or assaults, and his GT score was only 50.
    4. AR 20150009241 (Board Date 7 June 2016): The Board granted an upgrade to “fully honorable” to a Vietnam combat veteran with a history of AWOLs and who was issued an OTH discharge. We noted that like JG, this applicant he had a difficult tour in Vietnam, and like JG, he was issued medals for his Vietnam service. Like JG, he had family problems (marital problems) and difficult duty assignments that triggered his AWOLs. Like JG, he had mental health issues (here, schizophrenia) to be considered in mitigation of the AWOLs. The ABCMR excused his late filing “in the interests of justice.” The review board agreed that the applicant (like JG) “displayed the characteristics of a model soldier until he began to experience the effects of his mental health issues.”
    5. AR 20150007298 (decision date 11 April 2016): The Board granted an upgrade from OTH to fully honorable, finding that service-connected PTSD and behavioral mental health conditions mitigated the applicant’s AWOL and other misconduct. The Board also granted a change in reason to “Condition not a Disability” and a change in reentry eligibility to 3. This action entailed a restoration of grade. The applicant was a high school graduate with a GT score of 107 (as compared to JG’s GT score of 50). The applicant’s AWOL immediately followed a hospitalization for mental health issues, comparable to JG’s hospitalization for TBI.
    6. AR 20160000396 (application date 5 December 2015): The Board granted an upgrade from OTH to fully “Honorable” and a change in the narrative reason to “Secretary Plenary Authority.” Like JG, the applicant had a record of TBI and PTSD, after his deployment in Iraq. The Board found his OTH discharge inequitable because the misconduct of drug use, defiance of superiors, and making false statements could be attributed to his TBI and PTSD. The applicant was 18 years old at enlistment, had a GED, and a GT score of 88. JG had a lower GT score (50), and his AWOL misconduct, which could be attributable to his TBI and PTSD, did not involve drug use, or making false statements.
    7. AR 2015 0005125 (4 August 2015): The Board granted an upgrade to “fully honorable” to a Vietnam veteran who, like JG, had a period of AWOL after Vietnam combat service and who, like JG, was a good soldier until he returned from Vietnam. Like JG, this applicant suffered from severe PTSD. Like JG, this applicant experienced multiple episodes of brutal trauma during his Vietnam combat service. The applicant was granted a fully Honorable Discharge, because the post-combat AWOL was attributed to the PTSD caused by the trauma of his Vietnam combat service.

We also marshalled authority to support our propriety argument – that JG did not have the capacity to waive his rights and accept an OTH discharge:

  1. Fairchild v. Lehman:[21] The appeals court affirmed the judgment in favor of a Marine challenging his OTH discharge, concluding that Fairchild’s waiver of his right to trial by court-martial was not knowing, voluntary, and intelligent, because, like JG, Fairchild was not properly counseled about the consequences of so doing.
  2. Henry v. Dep’t of Navy:[22] Vietnam-era Marine with low AFQT score (18 out of 100, higher than JG’s score of 2), and who was issued undesirable discharge after misconduct which included UAs and assaults, did not make a knowing, intelligent and voluntary waiver of his rights. The BCNR’s decision “failed to adequately consider and properly weigh the factors which ‘obviously affected the soundness of [Henry]’s decision,” which included procedural defects, history of emotional problems, and stressful combat situation. Remanded to Navy to issue fully honorable discharge.
  3. People v. Bradshaw:[23] New York Court of Appeals (NYS’s highest court) ruled Bradshaw’s waiver of his right to appeal was invalid, where defendant “in need of a good deal of support from defense counsel to explain complexity of case.” JG needed that support but did not receive it.
  4. Some concluding thoughts.

It was an honor and privilege to represent JG and to succeed in getting him the fully Honorable discharge he so deserved and had sought for so long. The Honorable discharge, along with the pay of accumulated VA benefits, was a capstone, completing the restoration of honor and dignity to this very decent man.

Representing JG also led to a more nuanced understanding of the Vietnam War protests. Would JG have been accepted for induction if not for Project 100,000? Would Project 100,000 have been necessary if so many men had not succeeded in avoiding the draft? If the US had not gone to war in Vietnam? Many of us honor and recognize those who protested the Vietnam War – the conscientious objectors, the draft resisters, the deferment-seekers, those who fled to Canada. Let us also honor and recognize the service and suffering of JG and those like him, who had no choice.

  1. https://nlgmltf.org/programs-and-services/military-law-library/on-watch/on-watch-back-issues/ ↑

  2. Counsel is deeply indebted to the research, knowledge and insight of Coco Culhane, Executive Director of the Veteran Advocacy Project, and Robert Cuthbert, the Project’s Pro Bono Coordinator. ↑

  3. https://www.secnav.navy.mil/mra/bcnr/Documents/HagelMemo.pdf ↑

  4. https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ad2014_28.pdf ↑

  5. http://veteransclinic.law.wfu.edu/files/2017/09/Carson-Memo.pdf ↑

  6. 10 U.S.C. Sec. 1553(d). ↑

  7. https://www.ncbi.nlm.nih.gov/books/NBK207191/box/part1_ch3.box16/ ↑

  8. http://www.ptsd.va.gov/professional/assessment/adult-sr/dts.asp ↑

  9. 4 September 1980 Memo from A.J. Martin, Director, Accession Policy to Mr. Danzig, with attachment, found at https://www.rand.org/content/dam/rand/pubs/monographs/MG265/images/webG1471.pdf. ↑

  10. Hsiao, Lisa (1989) “Project 100,000:”The Great Society’s Answer to Military Manpower Needs in Vietnam,” Vietnam Generation: Vol. 1, Art. 4, found at: http://digitalcommons.lasalle.edu/cgi/viewcontent.cgi?article=1014&context=vietnamgeneration, and Project 100,000, Wikipedia, https://en.wikipedia.org/wiki/Project_100,000. ↑

  11. Project 100,000 New Standards Program, found at http://www.rand.org/content/dam/rand/pubs/monographs/MG265/images/webG1318.pdf ↑

  12. MacPherson, Myra, “McNamara’s Other Crimes: The Stories You Haven’t Heard” The Washington Monthly, June 1995, at 28. ↑

  13. Henry v. Dep’t of Nav. Bd. for Correction of Naval Records, 755 F. Supp. 1442, 1443 at FN 1 (E.D. Ark. 1991). ↑

  14. United States v. Chappell, 19 U.S.C.M.A. 236, 238 (1970). ↑

  15. Gregory, Hamilton, McNamara’s Folly: The Use of Low-IQ Troops in the Vietnam War plus The Induction of Unfit Men, Criminals and Misfits (Infinity Publishing 2015) ↑

  16. https://www.mcmilitarylaw.com/documents/133228p.pdf ↑

  17. DoDI 1332.28 ¶E4.3.1. ↑

  18. DoDI 1332.28 ¶E4.3.3.1.4. ↑

  19. DoDI 1332.28 ¶E4.3.3.2. ↑

  20. DoDI 1332.28 ¶E4.3.3.2.3. ↑

  21. 814 F. 2d 155 (F.C. 1987). ↑

  22. 755 F. Supp. 1442 (E.D. Ark. 1991). ↑

  23. 18 N.Y. 3d 257, 260 (2011) ↑