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HOW THE US ARMY IS DOING A GREAT INJUSTICE TO ITS OWN

By:  Devin Cohen

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In 2015 American Sniper brought in a record of more than $105 million in its opening weekend.  The movie details the life story of Navy SEAL sniper Chris Kyle.  While Kyle was a legend on the battlefield among his peers, he struggled to reintegrate into society upon coming home after his tours of duty.  The movie sheds light into the daily struggles that veterans face when they suffer from PTSD.

According to the American Psychiatric Association’s Diagnostic & Statistical Manual, “the diagnostic criteria for PTSD includes a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alteration in cognitions and mood, and alterations in arousal and reactivity.”  Individuals with PTSD constantly battle sleeplessness, anger, anxiety, and a sense of isolation, making it extremely difficult to live what would be considered a normal life.

The United States Department of Veterans Affairs reports that nearly eight percent of the US population will have PTSD at some point in their lives.  Eleven to twenty percent of veterans of the Iraq and Afghanistan wars, ten percent of veterans from the Gulf War, and about thirty percent of Vietnam veterans suffer from the disease.  The correlation between PTSD and military tenure is indisputable and yet the military has failed to properly care for the veterans who have been inflicted with the disease.

Soldiers who incur physical or mental disabilities in the line of duty are subject to an official evaluation process by military authorities.  The process is the first step in determining the benefits and services for which a soldier is eligible.  10 U.S. Code § 1201 provides that “[u]pon a determination by the Secretary concerned that a member [is] unfit to perform the duties of the member’s office, grade, rank, or rating because of physical disability incurred while entitled to basic pay or while absent as described in subsection (c)(3), the Secretary may retire the member, with retired pay.”  The United States District Court for the District of Connecticut has held that PTSD qualifies as a “disability” for the purposes of § 1201, but many other conditions do not and therefore do not bestow the same full package of retired pay and benefits.

If the evaluation board issues a disability rating of at least thirty percent, the member will be medically retired.  The soldier will then receive thirty percent (or more) of his base pay, plus the benefits of the retiree, which includes free health care at a military hospital. PTSD receives an automatic fifty percent disability rating from the Army, which equates to approximately $1,000 a month in base pay and medical treatment. This ultimately costs the Army significantly more compared to diagnoses for conditions not covered as a disability under § 1201 or with disability ratings less than thirty percent.

In 2012, the Army launched a review of its handling of post-traumatic stress disorder and other behavioral health evaluations at its medical facilities since 2001, in response to criticism that many soldiers have had their diagnoses reversed because of these high costs of treating PTSD.  The review found that at least 290 PTSD diagnoses made by the military or the Department of Veterans Affair were specifically reversed after a presentation given by William Keppler, the head of the psychiatry team in the Lewis-McChord Army Medical Center, emphasized to staff members that every diagnosis of PTSD cost the military $1.5 million per veteran in health benefits and pension payments.

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Veteran William B. Cowles’ tenure in the Army started when he served in the National Guard in 1974.  On May 3, 2003, he was deployed to Kuwait and then his unit moved to Iraq where he saw the remains of three people from his unit next to him.  He also witnessed a soldier beat a Pakistani truck driver to death with a rifle.  Cowles’ emotional stress led to physical pain that ultimately caused him to lose consciousness.  After reporting to a military psychologist who was unreceptive to his complaints, Cowles was ultimately separated from the Army with an adjustment-disorder (which is essentially a condition where an individual is unable to adapt to his surroundings), which did not qualify him for retirement pay under § 1201.  As he continued to experience severe psychological symptoms, Cowles was eventually correctly diagnosed with “combat-related post-traumatic stress disorder (PTSD), now chronic.” Had Cowles been discharged on the basis of PTSD, he would have been medically retired.

Cowles went to the Army Board for Correction of Military Records (ABCMR) to challenge his discharge status and demanded that the Army issue him a correct designation based on the fact that he suffers from PTSD, which he incurred while serving on duty; his request was rejected.  Thousands of veterans, including Cowles allege that correction/discharge upgrade boards have been ineffective for veterans who wish to have their statuses upgraded mainly because of their unwillingness to abide by the law, as well as their impenetrable evidentiary standards.  Numerous veterans have been given wrong diagnoses and have thus been barred from economic benefits because of this.

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Several recent board decisions on discharge application upgrades exemplify these flaws.  In June 2012, Cowles applied to the ABCMR for review of his discharge status. He submitted a detailed brief supported by five declarations, an expert psychiatric evaluation by Dr. Sarah Mourra of the Yale School of Medicine and Psychiatry, and hundreds of pages of other documentation of his medical history.  The ABCMR rejected his claim to record correction on the grounds that “he had not presented any evidence of a diagnosis of PTSD prior to his separation.”  Similarly, in response to an applicant who submitted six letters from Veterans Affairs medical personnel to support his claim for a discharge upgrade based on PTSD, the ABCMR acknowledged the VA’s contention that the a discharge was likely in part due to PTSD, yet stated “no evidence shows the applicant was having mental problems in 1967…that were the underlying cause for the misconduct that led to his discharge.”  It was not even possible for such a diagnosis to be made in 1967, as PTSD was not officially recognized until 1980.  The boards’ unwillingness to accept critical evidence and insistence on impossible evidence lead inevitably to rejections of the discharge upgrades on the basis of PTSD.

The most plausible solution that would enable Veterans with PTSD to obtain their benefits would be a Department of Defense regulation that compels the review and correction boards to consider post-discharge evidence.  In September 2014, then Secretary of Defense Chuck Hagel issued a memorandum for the secretaries of the military departments stating that review boards will fully and carefully consider every petition based on PTSD brought by each veteran, effective immediately. While Hagel’s memo provides several notable policy considerations, it lacks the ability to guarantee that boards will apply it because it is not yet law.

A new regulation should be adopted to insist on final evidentiary considerations for all veterans who wish to have their discharge designation upgraded and/or military records corrected.  Additionally, special consideration should be given to all determinations, both internal and external, of PTSD diagnoses.  The evidence should be weighed equally with the timeliness of each diagnosis standing as the most compelling factor.  The benefit of the additional development of information supersedes prior diagnoses, regardless of the source. In 2013, Cowles filed a federal lawsuit against the Army. The district court in Cowles stated, “it appears to the court to have been a foregone conclusion that any post-separation evidence that Cowles presented was inadequate to the presumption of the regularity of the Army’s procedures . . . the ABCMR committed prejudicial error because it failed to consider [such evidence].”  Further, the district court vacated the decision of the ABCMR and remanded the case for further proceedings in part due to the Army’s failure to adhere to certain procedural requirements.

This proposed regulation has the potential to enable veterans to receive proper compensation for the time they served and the injuries they sustained while protecting their country. The United States Army’s wrongful stigmatization and denial of benefits to William Cowles and others like him as cost-saving measures is simply the latest example of the military’s unjust treatment of soldiers and veterans. American Sniper depicts a shocking and accurate portrait of the struggles faced by American soldiers returning home from active duty. Unfortunately, though their struggles are well known, the military does little to alleviate such strains by denying benefits to soldiers.

Devin Cohen is a Senior Staff Member at St. John’s University School of Law’s Journal of Civil Rights and Economic Development. He is expecting to graduate in June 2016.

The pictures used herein and in the slider are not the property of the author and can be found at the following web addresses:

http://www.army.mil/article/59780/Duty_to_Soldiers_oneself_Combat_veterans_seek_out_behavioral_health_services_to_help_with_PTSD/

https://storify.com/Ampatrick04/my-own-battle-ptsd

http://veterans.ky.gov/otherprograms/Pages/homeless.aspx