The Winter 2012 edition of the Military Law Review is now online here. The issue includes only one article, but that article is 328 pages long, including its extensive appendices:

Major John W. Booker, Major Evan R. Seamone & Leslie C. Rogall, Beyond “T.B.D.”  Understanding VA’s Evaluation of a Former Servicemember’s Benefit Eligibility Following Involuntary or Punitive Discharge from the Armed Forces, 214 Mil. L. Rev. 1 (2012).

10 Responses to “Guide to eligibility for VA benefits after punitive discharges”

  1. Cloudesley Shovell says:

    Oof.  That’s not an article, that’s a book.

  2. football bat says:

    Just in time for the reduction in personnel and the multitude of unjust separations. Is this how leadership plans to soothe its collective conscience? ‘Yes we kicked you out unfairly, but look at all these articles and pamphlets…we did it for you, because we care.’

  3. Bridget Wilson says:

    MAJ Seamone and another incredible production. Let’s put it this way, I have saved every page of this. It will be valuable when looking at BCMR/DRB matters and of course advising clients facing discipline/CM . I have found that military defense counsel can be a bit glib about the effects of separation.  As is true of CM convictions, the consequences of any particular characterization of discharge changes over time. MDC spend too little time explaining the consequences, likely because they don’t see the post discharge problems.
    So many of our clients are young and well, inexperienced. I am certain  you have had them in your offices ranting the mantra, “I don’t care, I want out, and I want out NOW!” In a year or 2 or three they are in my office or Phil’s etc, wanting to know if we can fix that bad paper. With painful frequency we cannot. In lean economic times the less than honorable discharge is a heavier albatross to carry, Some time ago I had a guy who was rejected for a minimum wage job with a large fast-food company (as a burger flipper) because he had a GD-not an OTH or BCD – a GD.
    I still hear the myth of the GD that automatically upgrades in 6 months.  (If I tell you how many decades I have been hearing this, I will have to reveal my advanced age). In many cases that OTH may be the best you are going to get for that soldier. But at least we need to advise them about the potential for negative consequences that may worsen in the future, It is kind of Padilla gone admin. What a great piece of work, practical knowledge that may not comfort my clients, but at least will let them know what they are facing when they get out.
    Of course, the clients often don’t hear what you have said to them. What they do hear is that they can “appeal” that OTH to get benefits, meaning they think it is automatic or almost automatic. You can’t stop client denial of reality, but this anything that makes it easier to explain to a client what is facing them when they get out is a good thing.
     

  4. Phil Cave says:

    Never waiver a board if board eligible.  Yes, you may well end up with an OTH.  But stranger things have happened.
    Why NEVER waive?
    Well, when you petition to upgrade the discharge the Board will tell you that your failure to exercise all your rights and present a case at a board is aggravating against you.  Thus your chances of an upgrade, slim as they are went down measurably.

  5. CONUS AF Capt says:

    @Phil Cave:  Would it be a fair clarification to say never unconditional waiver a board?  I can imagine times that if you could get a conditional waiver and upgrade a step (UO -> GD, GD-> Hon) that it’s worth the while…

  6. John Baker says:

    Phil, Bridget or anyone else — my folks frequently ask me – what’s worse – waiving a board and getting an OTH or a conviction at a special court (with no BCD)  followed by an ad sep with a general?  

  7. Michael Lowrey says:

    John, I’m not sure you can simplify it to that level. What’s at issue? VA benefits? Civilian employment opportunities? Something else? A lot can depend upon what the conviction is for and what state (or states) the person is going to live in.

  8. stewie says:

    To paraphrase Prince, never is a mighty long time, and I’m here to tell ya I can think of several reasons to rush to waive a board for an OTH.  Those Soldiers who are a ticking time-bomb of misconduct is one reason, a gift for a case that by all rights should be a court-martial is another.
    I concur that there are probably DC out there who rush too quick to waive a board, and you absolutely should advise your client of the serious ramifications of anything less than an honorable discharge. You are committing malpractice to do otherwise.  But never waive a board if eligible?
     
    I would think a federal conviction (and in my experience purely military offense courts-martial which might not “count” are getting rarer and rarer) is rarely going to be better than an administrative discharge.  Even if you don’t get kicked, the unit is likely going to admin discharge you with a Gen anyways.  I agree it’s not simple, there are likely times when going to trial when you doubt a panel will kick is better than waiving a board, but I think the numbers probably overall favor avoiding the trial alternative more times than not.

  9. Contract Lawyer says:

    As a general rule the client should not waive, but in some cases the OTH is a train that is coming regardless of the collateral consequences.  I have been told by TC that the admin process was a gift and if we made it too hard they would courmartial the client.  In other cases I have gotten young soldiers an hon or GD with a little effort.  No matter the post-discharge consequences, the discharge was still coming and in all cases there was a firm basis for the chapter action.

  10. Contract Lawyer says:

    The best defense is to hope that limited use evidence inadvertently comes out at the hearing.  Also argue that those consequences be considered when the board votes on a discharge recommendation.  Even though I said that some cases are a train, there are many cases worth a good fight and in my time as a DC I saw at least 1/3 retained.  In one case, my guy was accused of arson and had third degree burns at our initial meeting; he got an OTH.  Another one got caught with a pound of dope, postal scales, a thousand dollars in small bills, and he pissed hot; he also got an OTH.