December 19, 2015 The Honorable Robert McDonald Secretary Department of Veterans Affairs 810 Vermont Avenue, NW Washington, D.C. 20401 Re: Petition to amend regulations restricting eligibility for VA benefits based on conduct in service Dear Secretary McDonald, Please find enclosed a Petition asking the VA to amend its regulations restricting eligibility for VA benefits based on applicants’ conduct in service. The scale of exclusion from veteran services is a historically unprecedented stain on our nation’s conscience. This is due almost entirely to VA regulations, and the Petition describes how the VA can and should change those regulations to better align VA practice with its ethical mandate and its statutory obligations. We have been grateful to see your personal commitment to serving all those who served the nation. We agree with the sentiment you shared at the Veterans Court Conference this July, that services for veterans with less than honorable discharges are “not only critical and not only smart to achieve our goals, but in my mind they are also about ethics and morals because we need to make sure that no veteran is left behind.” Like you, we remember that every one of these men and women served at a time when most in our society does not do so. While some may have forfeited rewards such as the G.I. Bill, none deserve to be left homeless without housing assistance, disabled without health care, or unable to work without disability compensation. We think you will agree that the current situation is unacceptable: The VA excludes current-era veterans at a higher rate than at any prior era: three times more than Vietnam-era veterans, and four times more than WWII era veterans. Almost 7% of post-2001 service members, including at least 30,000 who deployed to a contingency operation, are considered “non-veterans” by the VA. Regional Offices decide that service was “dishonorable” in 90% of cases they review. Some denied 100% of the cases they reviewed in 2013. Hon. Robert McDonald Page 2 of 3 December 19, 2105 Appeals decisions deny eligibility to 81% of veterans reporting PTSD; 83% of veterans with hardship deployments, including OEF, OIF and Vietnam; and 77% of veterans with combat service. Marines are ten times more likely to be excluded from VA services than Airmen, even when they have equivalent performance and discipline histories. The VA takes about four years to make an eligibility decision. Over 120,000 post-2001 veterans have not received an eligibility review and are therefore ineligible by default. Veterans excluded under current regulations are twice as likely to die by suicide, twice as likely to be homeless, and three times as likely to be involved in the criminal justice system. The VA can reach these veterans. The Department has tied its own hands with unnecessarily restrictive regulations. Statutory requirements bar only about 1% of servicemembers, yet VA regulations result in the exclusion of nearly seven times this number of current-era veterans. VA regulations decide which veterans require an eligibility review, what procedures they must follow to obtain one, and what standards to apply on review. The VA can amend its regulations to reach more veterans who deserve the essential and life-saving services that the VA provides. This Petition supplements an informal request that we made to the Department’s General Counsel on May 27, 2015, which she accepted as a Petition for rulemaking in a letter dated July 14, 2015. We greatly appreciate the General Counsel’s receptiveness to our concerns so far, and we look forward to continuing to collaborate on this important issue. Deserving veterans are turned away from VA hospitals every day. We ask the VA to expedite a review and amendment of its regulation in order to ensure that we are in fact serving all who served. Michael Blecker Barton Stichman Executive Director Joint Executive Director Swords to Plowshares National Veterans Legal Services Program Daniel Nagin Drew Ensign Clinical Professor of Law Latham & Watkins LLP Director, Veterans Legal Clinic Legal Services Center of Harvard Law School Hon. Robert McDonald Page 3 of 3 December 19, 2105 cc: Leigh Bradley, General Counsel Bill Russo, Director, Office of Regulation Policy & Management Bradford Adams, Swords to Plowshares Dana Montalto, Veterans Legal Clinic, Legal Services Center of Harvard Law School PETITION FOR RULEMAKING TO AMEND 38 C.F.R. §§ 3.12(a), 3.12(d), 17.34, 17.36(d) REGULATIONS INTERPRETING 38 U.S.C. § 101(2) REQUIREMENT FOR SERVICE “UNDER CONDITIONS OTHER THAN DISHONORABLE” I. EXECUTIVE SUMMARY ............................................................................................................................. 2 II. THE STATUTORY REQUIREMENT FOR DISCHARGE “UNDER CONDITIONS OTHER THAN DISHONORABLE” AUTHORIZES THE VA TO EXCLUDE ONLY SERVICE MEMBERS WHOSE CONDUCT WOULD JUSTIFY A DISHONORABLE DISCHARGE CHARACTERIZATION ............................................................................................................................... 5 III. CURRENT REGULATIONS ...................................................................................................................... 35 IV. THE CURRENT REGULATORY SCHEME IS UNJUST, INCOMPATIBLE WITH STATUTORY OBLIGATIONS, AND UNDULY BURDENSOME ON BOTH VETERANS AND THE VA............................................................................................................................................... 49 A. VA REGULATIONS ARE EXCLUDING CURRENT-ERA SERVICE MEMBERS AT A HIGHER RATE THAN AT ANY OTHER PERIOD IN THE NATION’S HISTORY ......................................................................... 49 B. THE REGULATIONS ARE AN IMPERMISSIBLE INTERPRETATION OF STATUTE BECAUSE THEY DO NOT ADOPT MILITARY “DISHONORABLE” DISCHARGE STANDARDS ....................................... 55 C. THE REGULATIONS FAIL TO ACCOUNT FOR BEHAVIORAL HEALTH ISSUES SUCH AS PTSD OR TBI .............................................................................................................................................................. 64 D. OVERBROAD AND VAGUE REGULATIONS PRODUCE INCONSISTENT OUTCOMES ................................... 67 E. THE REGULATIONS ARE INCONSISTENT WITH THE VA'S PUBLIC AND OFFICIAL COMMITMENTS ................................................................................................................................................ 71 F. VA REGULATIONS PREVENT THE VA FROM SERVING HOMELESS, SUICIDAL OR JUSTICE- INVOLVED SERVICE MEMBERS ...................................................................................................................... 73 G. THE PROCEDURES TO OBTAIN AN INDIVIDUAL REVIEW ARE EXTREMELY BURDENSOME ON SERVICE MEMBERS AND ON THE VA ...................................................................................................... 75 H. THE REGULATIONS UNFAIRLY DISADVANTAGE SERVICE MEMBERS FROM CERTAIN MILITARY BRANCHES ...................................................................................................................................... 79 I. THE REGULATION UNLAWFULLY DISCRIMINATES AGAINST HOMOSEXUAL CONDUCT ...................... 82 J. THE GOVERNMENT COST ASSOCIATED WITH INCREASED ELIGIBILITY WOULD BE LARGELY OFFSET BY REDUCTIONS IN NON-VETERAN ENTITLEMENT PROGRAMS AND HEALTH CARE SAVINGS .................................................................................................................................. 83 V. EXPLANATION OF PROPOSED AMENDMENTS TO ALIGN VA REGULATIONS WITH STATUTORY AUTHORITY, OFFICIAL COMMITMENTS, AND PUBLIC EXPECTATIONS FOR THE FAIR TREATMENT OF VETERANS ................................................... 86 VI. CONCLUSION .......................................................................................................................................... 106 2 I. EXECUTIVE SUMMARY The Department of Veterans Affairs (VA) does not recognize all former service members as veterans. Since 2001, about 125,000 people have been discharged from active military service who do not have veteran status at the VA. This includes at least 30,000 service members1 who deployed to a contingency operation during their service. The rate of exclusion from VA services is higher now than at any earlier period: it is three times as high as for Vietnam-era service members and four times as high as for WWII-era service members. Almost all of these exclusions are the result of discretionary policies that the VA itself chose and that the VA is free to modify. Congress identified certain forms of misconduct that must result in an exclusion from VA services. In addition, Congress gave the VA authority to exclude other service members at its own Exclusion from VA services based on character 7% discretion. The VA decides which service of discharge 6% members will require an evaluation, and it 5% 4% decides the standards to apply. These 3% discretionary standards are responsible for 2% % ofservicemembers all 1% 1.7% 3.3% 2.8% 4.8% 6.5% 85% of exclusions; only 15% are due to 0% WWII Korean War Vietnam War"Peacetime" GWOT standards set by Congress. These are some of the veterans most in need of its support. One study showed that Marine Corps combat veterans with PTSD diagnoses were eleven times more likely to get misconduct discharges, because their behavior changes made them unable to maintain military discipline. Since 2009, the Army gave non-punitive misconduct discharges to over 20,000 soldiers after diagnosing them with PTSD. Yet they can access