Bad Paper Discharges & Justice-Involved Veterans

Between 2000 and 2015, more than 352,000 service members were released from active duty with “bad paper,” according to DoD data, including 22 percent of service members who reported a sexual assault from 2009–2015. USMC OIF combat veterans with PTSD were 11x more likely to receive a misconduct discharge and 8x more likely to be discharged for substance use from 2011–2015.

In February 2016, The New York Times ran a story highlighting 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 Collaboratives’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.

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

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?

Service providers should refer veterans they encounter veterans 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/or Character of Service determinations from the VA.

Access to VA Healthcare & Benefits

VA will only make a Character of Service determination if a veteran applies for VA healthcare or another VA benefit. All veterans have a right to apply for VA healthcare, to receive a written decision, and to appeal any denial, regardless of their discharge status.

In 2021, Veterans Legal Services and the Veterans Legal Clinic of the Legal Services Center at Harvard Law School published How to Access VA Health Care If You Have a Less-Than-Honorable Discharge: A Guide for Veterans & Their Dependents in 2021.

This guide discusses how to apply for VA healthcare and options if you have challenges. Betsy Gwin, Margaret Kuzma, Dana Montalto, and Dan Nagin wrote the Military Discharge Upgrade Legal Practice Manual in 2021 to support advocates representing veterans who received less-than-honorable and other stigmatizing discharges in their work.

On October 24, 2023, National Veterans Legal Services Program and Swords to Plowshares, represented by the Veterans Legal Clinic at Legal Services Center of Harvard Law School and Latham & Watkins, filed a lawsuit to compel the VA to amend its Character of Discharge regulations.

NVLSP and Swords to Plowshares petitioned VA in July 2015 for rulemaking. VA agreed to make regulatory changes in May 2016. This lawsuit asks the Court to compel VA to promulgate the amendments to VA’s rules to make it easier for veterans with bad paper discharges to obtain basic VA benefits.

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 policy starting in 1994. The DoD intends to proactively review all Administrative, General, and Other Than Honorable discharges with relevant codes or narratives on DD214s.

Identified cases will be submitted to the individual’s branch of service for review and processing by the branch Discharge Review Board. Proactively upgrading these former service members’ discharges will allow them to access VA healthcare, benefits, and services they would otherwise be disqualified from due to their other than honorable discharge status.

According to the 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 service members’ who may have been discharged as a result of their sexual orientation if their discharges weren’t coded or narrated as such. Veterans with discharges for misconduct or reasons unrelated to DADT may still apply to review boards for a discharge upgrade or record correction if they believe it was related to their sexual orientation.

  • Click here to apply for an upgrade for discharges within the last 15 years

  • Click here to apply for an upgrade for discharges that were more than 15 years ago

Service Review Board results data is available as of March 2023 listing the total applications received, granted, and denied by branch of service for DADT-related cases here. The Navy Review Board has granted 77%, the Marine Corps Review Board has granted 82%, the Army Review Board has granted 92%, and the Air Force has granted 97% of DADT-related cases.

Massachusetts Veterans Equality Review Board

The Massachusetts Executive Office of Veterans Services offers financial assistance to veterans on the basis of their income, disability status, and veteran status, including based on their discharge characterization. To qualify as a “veteran” for the purpose of state-based veteran benefit eligibility, veterans must typically have received an honorable discharge from the military. 

Massachusetts established a Veterans Equality Review Board 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.

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 that are administered separately by the Massachusetts Veterans’ Bonus Division for eligible active, discharged, and deceased wartime veterans.

To qualify for federal veteran benefits, veterans with an other than honorable discharge still need to apply directly to their branch of service to request a discharge upgrade and/or to the U.S. Department of Veterans’ Affairs to obtain a Character of Service determination to access VA healthcare and benefits if the discharge hasn’t been upgraded to conditions other than dishonorable.