The Army is reexamining the cases of at least 73 soldiers who it kicked out under other-than-honorable circumstances between 2009 and 2015 because it may have run afoul of a federal law intended to help ensure troops aren’t punished for mental health issues that were actually caused by their military service.

At issue is a provision in the 2010 National Defense Authorization Act (NDAA) that requires all the military branches to consider whether service-connected behavioral health might have played a role in whatever misconduct officials are using as their reasoning for separating a military member.

Any service member who’s served in a combat zone in the previous two years and who’s also been diagnosed with post-traumatic stress or traumatic brain injury is supposed to receive additional scrutiny before commanders discharge him or her for a law or rule violation — particularly since a less-than-honorable discharge makes them ineligible for mental health treatment or any other veterans benefits.

Eric Fanning, the secretary of the Army, formally notified Congress in an Aug. 25 letter that the service had identified a total of 394 soldiers who had PTSD or TBI diagnoses in their medical records, were sent home with less-than-honorable discharges and had deployed to serve in contingency operations sometime in the 24 months before they were kicked out. Sen. Chris Murphy (D-Conn.) released the letter late last week.

Of those 394, an internal audit identified 73 cases where there was no evidence that commanders even considered whether PTSD or TBI was a factor in the underlying offense that prompted their discharge.

“I will refer these cases — and any case where there was not in full compliance with [the 2010 NDAA] to the Army Review Boards Agency to determine if the soldier’s discharge should be upgraded based on evidence in the record,” Fanning wrote.

He said he had also issued instructions to all Army commanders ordering them to review soldiers’ behavioral health records from now on before issuing less-than-honorable discharges, and document that they’d done so.

“I’m grateful the Army took our concerns seriously and has made internal improvements to ensure that returning soldiers with brain injuries or PTSD receive the health care, benefits and respect they deserve,” Murphy said in a statement. “I will continue to work to make sure that all veterans are treated fairly and honorably by our government.”

To be clear, the law doesn’t give any soldier a free pass for misconduct simply because he or she has been previously diagnosed with mental health issues. It only requires that commanders document the fact that they’ve taken those facts into consideration.

As the House Armed Services Committee put it in an accompanying 2009 report describing Congress’ original intent, commands need to “conduct and review a medical exam to determine if the behavior of the member upon which the involuntary or other than honorable separation was based was influenced by a post-traumatic stress disorder or traumatic brain injury condition and … determine the appropriate separation course of action.”

Depending on the evidence, a commander might decide that an honorable discharge or a medical retirement is more appropriate.

Congress’ recent attention to the issue was spurred in large part by a joint investigative reporting project by National Public Radio and Colorado Public Radio. Those news organizations zeroed in on a memo concerning several soldiers at Fort Carson, Colo. whose behavioral health counselors seemed to act more as accusers than as counselors. Some with otherwise-stellar records were eventually drummed out of the service, without benefits, based on DUI citations or domestic conflicts that had happened several years earlier.

The Army later disciplined a physician and a social worker for failing to treat soldiers with dignity and respect, but did not find any systemic issues, Lt. Gen. Patricia Hororo, then the Army’s surgeon general told reporters last February.

“We then instituted a policy for any soldier that’s about to be chaptered out that their chain of command must make sure they brief that soldier so that they understand the interview is part of the discharge action, and prior to the behavioral health provider being able to do the interview,” she said.

But the other statistics the Army released as part of its letter to Murphy and other lawmakers are worth noticing.

Of all the 469,000 soldiers the Army separated for any reason between 2009 and 2016, 68,000 — nearly  one out of every seven — were given less-than-honorable discharges and also had behavioral health diagnoses in their military records.

The statistics do not explain how many of those troops were kicked out for genuinely bad behavior that had no connection whatsoever with their wartime experiences or mental health struggles, and surely, there were many, many of those cases.

But a cynic might observe that this has all been happening in the context of a budget-related Army drawdown, and that the various bureaucratic alternatives involved in getting rid of a “problem” soldier might strongly predispose a local commander to favor the administrative discharge route.

In any case, Congress may want to reopen this debate and question whether it’s wise, as a matter of governmentwide policy, to release thousands of military members with previously-acknowledged behavioral illnesses back to their hometowns under circumstances in which they’re barred from receiving VA mental health treatment.

The same Army’s recruiting and marketing officials have gathered reams of survey and focus group data which tells them enlistments rates are being harmed by an inaccurate belief among the American public that most soldiers return from their enlistments with serious physical or mental injuries. Withholding treatment to even some proportion of soldiers for whom that’s actually true can’t help matters.

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