Bad Paper Discharges & Justice-Involved Veterans — Veterans Collaborative

Bad Paper Discharges & Justice-Involved Veterans

Since World War II, more than two million service members have been discharged with a less-than-fully Honorable discharge (also known as a “bad paper” discharge), and there are more than 540,000 veterans currently living with an Other Than Honorable discharge, according to the U.S. Department of Veterans Affairs.

In February 2016, The New York Times highlighted the impact bad paper can have on a veterans’ ability to access programs and services, specifically those arising from PTSD. On August 3, 2016, the Klarman Family Foundation hosted the Veterans Collaborative’s first Legal Summit.

  • Organized within GBVC’s policy and advocacy networks, the legal summit focused on justice-involved veterans in Massachusetts and the impact of bad paper discharges on veterans’ access to services and support that they need. We heard from:

    Massachusetts Justice & Diversion Peer Specialist Program

    The Massachusetts SAVE Team offers connections to peer support and case management services for veterans involved in the justice system, with five Justice & Diversion Peer Specialists (JDPS) throughout the state providing peer support, referrals, and system navigation assistance to veterans, counsel, and court personnel, including those not eligible for the VA Justice Outreach Program.

    Massachusetts Veterans Treatment Courts

    Veterans Treatment Courts are available for eligible veterans in Norfolk, Suffolk, Middlesex, Essex, and Hampshire Counties, which are structured to offer rehabilitative programs and services to support eligible justice-involved veterans. JDPSs work with these courts and DVS had nearly 150 active cases at the time of the summit – Worcester County had the most with 36.

    Breakout Groups

    During breakout groups, participants discussed the interplay of issues related to bad conduct discharges and justice-involved veterans and reflected on their policies, challenges, and solutions to:

    • develop an understanding of various veteran-serving organizations’ policies as they relate to discharge status and/or a veteran’s involvement with the justice system;

    • learn how legal issues impact veterans’ access to services within the domains of each affinity group (community, education, employment, etc); and

    • explore whether and how often service providers encounter veterans with bad paper discharges, solutions/resources they’ve discovered, and any gaps in services they’ve identified.

    We reflected on organizational policies and challenges, as well as solutions and best practices. With the exception of those organizations navigating grant requirements, as well as the VA, the majority of organizations reported serving veterans regardless of their discharge status.

    • Community: The Community group reflected on experiences of veterans they serve. An organization had recently accepted their first Fellow with bad paper and a court considered time spent by a veteran participating in events as community service hours. The group discussed ways to shed light on what the discharges actually mean and how different types can affect veterans’ ability to access the programs and services they would benefit from.

    • Employment: The Employment group reflected on the adverse impact bad paper or a criminal history can have on securing gainful employment, such as not being able to pass a CORI background check. The group discussed the need for service providers to learn what employers and vocations are more accepting of these types of issues. They also explored ways to incentivize employers to hire veterans with these challenges.

    • Education: The Education group identified outreach challenges ––how can we bring these veterans out of the shadows to make connections to support that they are eligible for? Veterans may not reach out if they have a bad paper discharge due to stigma.

    • Legal, Advocacy, Health & Wellness: Several groups combined for a breakout discussion with Congressman Kennedy. Participants reflected that the stigma and shame of having “bad paper” keeps many veterans silent. The group also discussed the need for all service providers to help veterans they encounter with bad paper discharges by referring them for assistance in upgrading the discharge to increase future access to healthcare, services, and benefits.

    Breakout groups also discussed options for veterans who can’t use the VA to obtain healthcare, such as accessing care through the Home Base Program and/or MassHealth, along with an opportunity for VA-accredited VSO representatives to offer assistance in prisons and/or for existing service providers within prisons to obtain VA-accreditation and training in order to assist incarcerated veterans with federal and state benefits.

Service providers should refer veterans they encounter with “bad paper” discharges to legal services for assistance––even if it doesn’t impact their eligibility for their program. Bad paper discharges may impact veterans and their families in other areas in the future.

Veterans with bad paper may be able to receive discharge upgrades through their branch of service and also can seek Character of Service determinations from the VA to see whether they are eligible for veterans health care and benefits.

Dana Montalto & Betsy Gwin of the Veterans Legal Clinic at Harvard Law School discuss the impacts of bad paper discharges.

The Education group identified outreach challenges ––how can we bring these veterans out of the shadows to make connections to support that they are eligible for?

Brian Martin & George Gorgiano discuss services they provide to veterans in the Plymouth County Correctional Facility.

Context for Bad Paper Discharges

Many factors can increase the likelihood that a service member will be separated with a less-than-honorable discharge.

Experiencing a mental health condition in service greatly increases the likelihood that a service member will be separated with a bad paper discharge. One study found that OIF Marine combat veterans with Post-Traumatic Stress Disorder are 11 times more likely to be separated for misconduct and 8 times more likely to be separated for substance use than fellow Marines without a mental health condition. Likewise, in 2017, the Government Accountability Office found that 62 percent of service members separated for misconduct from 2011 to 2016 had been diagnosed with a mental health condition.

Veterans with marginalized identities tend to experience more discrimination during their time in service. For example, according to Protect Our Defenders, Black service members are more likely to be involved in the military justice system: they are 1.7 times more likely to face court-martial and 2.6 times more likely to receive a guilty finding. Relatedly, Black service members are more likely to receive an Other Than Honorable discharge, according to a report by the Connecticut Veterans Legal Center. As discussed more below, LGBTQ+ veterans also were discharged under Don’t Ask, Don’t Tell and similar policies that barred open service.

Victims and survivors of Military Sexual Trauma also receive bad paper discharges at higher rates, whether due to retaliatory actions or trauma-related mental health conditions. Even if some survivors received an Honorable discharge characterization, many received misdiagnoses of “Personality Disorder” and then separated with that stigmatizing label on their discharge papers, according to a 2016 report by Human Rights Watch.

After service, veterans who receive less-than-honorable discharges often face challenges in accessing care, housing, employment, and benefits. Veterans with Other Than Honorable discharges are at three times the risk of experiencing suicidal ideation. They are also more likely to experience homelessness, incarceration, and unemployment and underemployment, according to research.

Don’t Ask Don’t Tell Discharge Upgrades

In September 2023, the Secretary of Defense announced a new policy and program to review and upgrade the discharges of service members discharged under the Don’t Ask, Don’t Tell (DADT) policy. DOD announced that it would proactively review all Administrative, General, and Other Than Honorable discharges with relevant codes or narratives on their discharge papers. DOD stated that identified cases will be submitted to the individual’s branch of service for review and processing by the branch Discharge Review Board.

According to DOD’s data, there were a total of 32,837 service members separated from 1980–2011 under the DoD’s “homosexual conduct” policy with the following discharge characterizations:

  • 18,642 Honorable

  • 6,361 General (Under Honorable Conditions)

  • 5,401 Uncharacterized/Entry Level

  • 1,599 Other Than Honorable

  • 834 with a homosexuality separation code but no characterization identified

This DOD program will not proactively identify servicemembers who may have experienced discrimination and been discharged as a result of their sexual orientation if their discharges were not assigned narrative reason and separation code associated with DADT. Veterans with discharges for misconduct or reasons unrelated to DADT may still apply to the military review boards for a discharge upgrade or record correction if they believe it was related to their sexual orientation.

Seeking a Discharge Upgrade or Records Correction

Every service branch has a Discharge Review Board (DRB) and a Board for Correction of Military or Naval Records (BCM/NR) that has authority to grant a discharge upgrades. Which Board veterans should apply to depends on a number of factors, including date of discharge, type of discharge, and service branch. The Department of Veterans Affairs has created an application to help veterans figure out which Board to apply to here.

Swords to Plowshares publishes a self-help guide for veterans seeking a discharge upgrade that provides basic legal information and practical advice. For a comprehensive guide for veterans and veterans advocates on discharge upgrade law and practice, access the Military Discharge Upgrade Legal Practice Manual published by the American Bar Association.

New Guidance for the Military Review Boards

Since 2014, the Department of Defense has issued a series of memoranda to the military review board to improve how they decide certain types of cases, including cases involving mental health, Military Sexual Trauma, Traumatic Brain Injury, the repeal of Don’t Ask, Don’t Tell, and name change petitions by trans veterans. Congress has also updated the statutes that govern the review boards so that some veterans applying for upgrades have more rights and protections in the process.

  • The 2014 Hagel Memo requires the Board to apply “liberal consideration” to applications involving PTSD or PTSD-related conditions. The Board must consider whether the conduct that led to the veteran’s discharge was mitigated by a mental health condition.

  • The Kurta Memo builds on the Hagel Memo and likewise provides guidance about how the Board should consider applications based on mental health conditions, as well as on Military Sexual Trauma and Traumatic Brain Injury. The Kurta Memo sets out four questions that look to whether the veteran had an in-service mental health condition or experience that mitigates and outweighs the conduct that led to their discharge. The memo also talks about what kind of evidence veterans could submit to show that their discharge should be upgraded.

  • The 2019 Wilkie Memo addresses when veterans should receive an upgrade based on principles of equity and clemency. The Memo touches on upgrades for veterans who received punitive discharges as well as administrative discharges. It also talks about how post-service conduct can be a basis for an upgrade and lists a variety of factors that the Boards should consider in deciding veterans’ applications.

  • In the wake of the repeal of Don’t Ask, Don’t Tell, DOD issued the Stanley Memo, which guides the Boards on how to approach applications by servicemembers who were discharged due to their sexual orientation (under DADT or a similar prior policies). Under the Memo, if a servicemember was discharged solely based on their sexual orientation and if they have no “aggravating factors” in their record, the Board will grant requests for a discharge upgrade, a change in narrative reason, and a change in re-entry code.

Access to VA Healthcare & Benefits

Under federal law, veterans who received a General (Under Honorable Conditions) discharge are considered “veterans” for VA purposes, and many veterans who received other less-than-fully Honorable discharges may also be able to establish “veteran” status at VA through an individualized review process called the Character of Discharge (COD) determination. VA will only make a Character of Discharge determination if a veteran applies for a VA benefit, such as health care, compensation, pension, or home loan certificate.

In April 2024, the Department of Veterans Affairs updated its regulations that govern which veterans with less-than-honorable discharges can access basic VA benefits. Importantly, VA will now consider whether there are “compelling circumstances” in the veteran’s service that weigh in favor of eligibility. Examples of compelling circumstances are mental and physical health conditions, family obligations, combat or overseas service, sexual assault and abuse, and meritorious service. VA anticipates that more veterans will be approved for benefits under this new rule. Veterans who were denied under the prior rule have the right to reapply and have their application reconsidered.

All veterans have a right to apply for VA healthcare and benefits, to receive a written decision, and to appeal any denial, regardless of their discharge status. However, reports document that many veterans have been provided misinformation about their potential eligibility for VA benefits, and VA has unlawfully denied benefits to veterans with “bad paper” discharges for decades. This denial has had severe consequences.

Studies show that veterans with bad paper discharges face significantly higher rates of suicide, mental health disorders, unemployment, homelessness, and incarceration. These veterans are often left without access to crucial healthcare services, housing assistance, education opportunities, and other vital support systems. Without these benefits, they struggle to overcome their challenges and improve their quality of life, perpetuating a cycle of hardship and marginalization. Ensuring all veterans receive the benefits they are entitled to is essential for their well-being.

In 2021, Veterans Legal Services and the Veterans Legal Clinic at the Legal Services Center of Harvard Law School published a self-help guide for veterans with less-than-honorable discharges seeking access to VA health care benefits. In 2024, the National Veterans Legal Services Program published a self-help manual for applying for VA benefits after a discharge upgrade.

Massachusetts Veterans Benefits

The 2024 HERO Act expands the definition of a veteran that applies to benefits programs administered by the Massachusetts Executive Office of Veterans Services (EOVS), including to recognize more veterans who received less-than-honorable discharges. The definition of a veteran now aligns with the federal definition—such that it includes former service members who were discharged under “other than dishonorable” conditions—and the definition will recognize as a veteran any former service member who is eligible for federal VA benefits. The HERO Act also broadened the type of applications that can be heard by the Veterans Equality Review Board.

Veterans Equality Review Board

EOVS offers financial assistance to veterans and their dependents on the basis of their income, asset level, and disability status. Whether a veteran has a qualifying “other than dishonorable” discharge status is one criteria for certain EOVS benefits.

Massachusetts established a Veterans Equality Review Board (VERB) in September 2023 under Section 16 of MGL Chapter 115 to ensure veterans who received a less-than-honorable discharge under DADT, or on the basis of sexual orientation, gender expression, or gender identity, including in situations involving sexual assault, harassment, or domestic violence, are not disqualified from state benefits.

The 2024 HERO Act expanded the VERB’s jurisdiction to include any veteran who received a less-than-honorable discharge on the basis of sex, race, color, religious creed, national origin, age, genetic information, ancestry, marital status or disability, and any other former service member discharged on the basis of mental health conditions, Military Sexual Trauma, or Traumatic Brain Injury.

A new provision promoting equality in the state budget for FY2024 also allows veterans with bad paper discharges due to their sexual orientation, gender identity or expression, or HIV status to qualify for bonuses, which are administered separately by the Massachusetts Veterans’ Bonus Division to qualifying active, discharged, and deceased wartime veterans.