The Navy faces a lawsuit over other-than-honorable discharges

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Two veterans service organizations have sued the Navy over discharge upgrades. At issue are other-than-honorable discharges, how they limit lifetime VA benefits and whether service members can appeal them. The particular case involves a Marine whom attorneys say faced racial discrimination. Joining the Federal Drive with Tom Temin with more on the case, an attorney with the Connecticut...

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Best listening experience is on Chrome, Firefox or Safari. Subscribe to Federal Drive’s daily audio interviews on Apple Podcasts or PodcastOne.

Two veterans service organizations have sued the Navy over discharge upgrades. At issue are other-than-honorable discharges, how they limit lifetime VA benefits and whether service members can appeal them. The particular case involves a Marine whom attorneys say faced racial discrimination. Joining the Federal Drive with Tom Temin with more on the case, an attorney with the Connecticut Veterans Legal Center, Alden Pinkham.

Interview transcript:

Tom Temin: Ms. Pinkham, good to have you on.

Alden Pinkham: Nice to speak with you.

Tom Temin: Well tell us about this case, a particular Marine was discharged less than honorably for sounds like a variety of causes that the Navy stated. Tell us more about it.

Alden Pinkham: Sure. So Mr. Lomax, my client is a Marine who joined in 1982. He was 17 years old, joined up to serve his country and almost from the beginning, he began to experience racial discrimination in service. So right from boot camp, he was called racially pejorative names. A fellow service member told him at one point that he had been raised to believe that Black people had tails and not to associate with them. This continued throughout his time in service and even though Mr. Lomax tried to serve to the best of his ability, he found that wasn’t truly possible because conduct that he engaged in which was approved when white Marines did it was punished when he did the same thing. Mr. Lomax also did not just experience racial bias in the service, he is a survivor of military sexual trauma as well. So those two patterns together, compounded and had deleterious impact on his mental health while in service.

Tom Temin: And how long did he serve? You say he joined more than 40 years ago.

Alden Pinkham: He joined up at 17. He served for two and a half years before he was discharged with an other than honorable and he has spent his entire life without access to VA benefits.

Tom Temin: Interesting. So is this a class action suit? Or is this kind of a bellwether suit? And how did he come to get together with your group at this point, because that’s a long time to be struggling with this.

Alden Pinkham: Mr. Lomax came to my organization, the Connecticut Veterans Legal Center for assistance with his discharge. So Connecticut Veterans Legal Center is a medical legal partnership with the VA. That means we have offices inside the VA, when veterans are coming to meet with their clinicians to get their health care, to talk to the homeless team, they can also come and see their lawyer. However, there’s a class of veterans, as you know, who don’t have that access to the VA, those with less than honorable discharges. And so we work with those veterans to help establish access to the VA. That can be through representing them within the VA, or through helping them get a discharge upgrade, which was the case for Mr. Lomax.

Tom Temin: Do they get zero benefits? Or is there a range of benefits depending on the nature of the discharge? How does that all work?

Alden Pinkham: It’s a complicated system. So a person as you might know who has an honorable discharge is eligible for all VA benefits. You may have specific eligibility criteria for specific benefits, but your discharge enables you to reach those. Someone who has a general under honorable conditions discharge, which is the next category down from a fully honorable has access to nearly all benefits, but not education benefits. When you get into an other than honorable discharge, such as the one Mr. Lomax has, the VA considers you presumptively not eligible for benefits, in the eyes of VA you’re not even a veteran.

Tom Temin: Got it. So some other than honorable discharged people can get not VBA benefits, but VHA benefits?

Alden Pinkham: In some circumstances, yes. So a veteran such as Mr. Lomax who experienced military sexual trauma is eligible for mental and behavioral health care related to the military sexual trauma.

Tom Temin: So he does get some sliver of benefits to that particular issue?

Alden Pinkham: A sliver of benefits but in our experience, and this could be a whole other conversation, sometimes VA staff don’t realize that that carve out exists for certain categories of veterans, those with military sexual trauma, or combat. And we do see veterans with other than honorable discharges who qualify for that health care under the law is called the Honor Our Commitment Act. They qualify for care under that act, but unfortunately, they’re given bad information at the VA and are told you’re not eligible.

Tom Temin: Interesting. We’re speaking with Alden Pinkham. She’s an attorney with the Connecticut Veterans Legal Center. And just briefly, what has Mr. Lomax been doing all of these years? He must have had a career or some type of work while he’s been pursuing this veterans deal.

Alden Pinkham: Yes, so Mr. Lomax after discharge, he got a job as a truck driver. He raised his family, he has two daughters, who are now grown. He tended to his wife through what eventually became terminal illness. And then after her passing, he made it his mission to help provide a stable background for his daughters as they were going through finishing high school, going through college to make sure that they had everything that they needed. So he has maintained, despite all of this, steady employment, he is still working. He has knee and leg problems that impact his work that stem all the way back to his time in the Marines. But again, he’s received no help from the VA or treatment from the VA for those issues.

Tom Temin: So tell us more, then, about the appeal process. And does that appear to be fair, I mean, what’s going on here when he tried to change his discharge status?

Alden Pinkham: Yes, so we assisted him and filing a discharge upgrade application based on the military sexual trauma he experienced and the racial treatment that he experienced in service. So we asked for the Board of Corrections for Naval Records, which is the body that hears discharge upgrade applications from the Marine Corps for older veterans like Mr. Lomax to upgrade his discharge to honorable based on his diagnosed PTSD, which stems back to the treatment that he had in service. And the board declined to do that. The board centered on some misconduct and Mr. Lomax’s is record. And, you know, I won’t hesitate to say that people who are experiencing a mental health condition while in service will generally have some misconduct in their record. It’s very common, that someone who is struggling with mental illness is not able to perform all the way up to the expectations of service. So the board declined to upgrade. They focused on the misconduct in service, that has PTSD doesn’t excuse this misconduct, but also importantly, they refused to engage whatsoever with the information we provided about racial discrimination in service. And we’ve seen this as a consistent pattern with the boards that when veterans of color ring applications that are based on potential discrimination in service, the boards won’t engage, they won’t grant those upgrades.

Tom Temin: And is there evidence that perhaps white service members with similar PTSD and similar behavioral issues or conduct issues have been exonerated in similar circumstances?

Alden Pinkham: Any veteran who has a discharge upgrade application based on PTSD or related mental health condition benefits from some guidance for the board, specifically a 2014 memo that instructs the boards to provide liberal consideration for PTSD claims, and a 2017 memo that specifies hey, PTSD symptoms can mitigate misconduct, and this should be looked at. So overall, for all veterans, the grant rate for applications based on PTSD is slightly higher than the baseline grant rate. But interestingly, a study in 2022, done by the Legal Aid Society of Columbus that looked at 10 years worth of data from the discharge upgrade boards found that the grant rate for racial trauma claims is not only lower than the PTSD grant rate, it is lower than the baseline grant rate. So you are less likely to get an upgrade if your claim is based on racial trauma than for any other reason. And in the 10 year period covered by that study, the grant rate for the Board of Corrections for Naval Records was zero.

Tom Temin: Got it. So in this particular case, is this a single suit? Do you plan to turn it into a class action at this point?

Alden Pinkham: At this time, this is a single suit. So my hope is that, so while class actions can cause agencies to really look at their policies and procedures and find methods for change, single suits can do that as well. So our hope is that the single student will get a good result quickly for Mr. Lomax and also prompt the board to consider their policies.

Tom Temin: And what are you specifically seeking besides the change in the status of his discharge, would that say back benefits or back pay of some manner?

Alden Pinkham: The discharge at this point would enable Mr. Lomax to get all the VA benefits and also state benefits within the state of Connecticut that he would like. And would also just return his sense of dignity, like this is a man who signed up, he volunteered at 17 to serve his country and was treated horribly, and he’s served well in his service. At one point, he gave up his own leave time to assist in the burial ceremonies for victims of the Lebanon barracks bombing. So he deserves an honorable discharge. So we’re hoping to enable Mr. Lomax to say, I’m an honorably discharged veteran of the U.S. Marine Corps.

Tom Temin: And just to clarify, this is an issue between Mr. Lomax and the Navy and not between him and Veterans Affairs.

Alden Pinkham: That’s right. So a veteran in Mr. Lomax’s position has two ways to try to obtain VA benefits. One is through the discharge upgrade, which he tried and was denied and the other is to go through a process at VA called a character of discharge review. And fortunately for Mr. Lomax, we represented him in his character of discharge review at VA with essentially the same arguments that we presented to the Navy, and the VA determined he is honorable for VA purposes and thus eligible for benefits except for education benefits under the GI Bill.

Tom Temin: Alden Pinkham is an attorney with the Connecticut Veterans Legal Center. Thanks so much for joining me.

Alden Pinkham: Thank you.

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