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Separation from the Army under Paragraph 5-13: Personality Disorder

Written by Elliott Tomlinson (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

Army Regulations 635-200, Paragraph 5-13 gives the Army the option to separate a soldier from military service based on a personality disorder. However, soldiers should be cautious and take the time to fully understand the implications of a separation under Paragraph 5-13. Although this may seem beneficial at the time, depending on each individual’s situation, this classification can have lasting residual effects that a soldier should be aware of.

Primarily service members should know that, if they are separated under this paragraph, it will be reflected on their DD-214 after discharge. The DD-214 will list the discharge as honorable unless an entry level separation is required.[1] However, the DD-214 will also list the separation authority as “AR 635-200, PARA 5-13” which a future employer, landlord, or anyone who reviews your DD-214 can look up to see this chapter is a separation for personality disorder. Also, the narrative reason for discharge shown on your DD-214 will be “Personality Disorder,” which may impact your chances of being hired or lead to more questions about your discharge.

Before separation proceedings may begin under this paragraph, a soldier must be formally counseled about the identified deficiencies and given an opportunity to overcome the deficiencies.[2] A soldier must also be advised that this diagnosis of a personality disorder does not qualify as a disability. Given this mandatory counseling requirement, a soldier being separated under this Paragraph should use this opportunity to clarify any questions.

How does a separation under this Paragraph work?

            Under Paragraph 5-13 a soldier who has less than 24 months active duty service as of the date separation proceedings are initiated, may be separated for a personality disorder. A qualifying personality disorder is one that “is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier’s ability to perform duty.”[3] It is classified as an inability to adapt to the military environment and not an inability or an inability to perform job specific tasks or requirements. Given the nature of this classification, the regulations call for documentation of behavior of specific deficiencies in the soldier’s personnel or counseling records. The regulations refer to this classification as a “diagnosis” which must be “established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate” credentials.[4]

If you are serving or have served in an imminent danger pay area and have less than 24 months of active duty service at the time separation proceedings are initiated, then there are additional requirements to be separated under this paragraph. First, the diagnosis of personality disorder under this section must be corroborated by the MTF Chief of Behavioral Health. His or her decision is then forwarded for confirmation by the Director, Prepotency of Behavioral Health, Office of the Surgeon General. The regulations specifically require the diagnosing psychiatrist to consider “whether PTSD, traumatic brain injury (TBI), and/or other combined mental illness may be significant contributing factors to the diagnosis.”[5] If any of these are significant factors to a diagnosis of personality disorder, the soldier cannot be processed for administrative separation but will be evaluated under the physical disability system.

If you were separated from service for a personality disorder, and you believe that the separation was unjust, or that the personality disorder was inaccurately referenced as the reason for your separation, please contact our office.



[1] AR 635-200, Paragraph 5-13(h)

[2] AR 635-200, Paragraph 5-13(e)

[3] AR 635-200, Paragraph 5-13(a)

[4] Id.

[5] Id.

Veterans Treatment Courts in North Carolina

Written by Adam Nyenhuis (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

Veterans Treatment Courts are a relatively new development that are specifically tailored to the needs of veterans who are facing criminal charges.  In 2008, Judge Robert Russell of the Buffalo Drug and Mental Health Courts established the nation’s first Veterans Treatment Court in Buffalo, New York, to assist local veterans with substance abuse and mental health issues.[1]  Today, only six years later, there are over 220 of these special courts serving more than 11,000 veterans across the United States.[2]

Like drug and other treatment courts, veterans courts were created to help treat, rather than merely punish, veterans who suffer from substance abuse and/or mental health issues.  Judges, lawyers, and legal scholars have become increasingly convinced that treating people charged with crimes related to substance abuse or mental health problems is a more effective way of helping those individuals break the cycle of criminal behavior and substance abuse.[3]  This has led many states to create veterans-only courts to assist those who have served our country in the armed forces and whose substance abuse or mental health issues, such as post-traumatic stress disorder, are often directly or indirectly related to their military service.  Ultimately, these courts aim to ensure that veterans receiving treatment are able to successfully recover and leave the criminal behavior in the past, all while ensuring public safety and reducing recidivism rates.

These courts are veteran-only in part because of limited resources, but primarily to create a court that is tailored to the unique needs of veterans.  For example, the courts sometimes pair veterans with mentors who are veterans themselves and they enlist the expertise of local veteran organizations to help create the best treatment plan for the veteran seeking treatment.[4]  Further, the courts employ a system of strict accountability through regular meetings with the veterans court team.  That team usually consists of a judge, defense lawyer, prosecutor, and others (such as veterans organizations and mentors).

Though these meetings involve parties typically present in a criminal trial setting, the meetings themselves are not traditionally adversarial.  That is, their purpose is not to determine whether the veteran facing charges is guilty or innocent.  Instead, this process only involves veterans whose guilt is admitted, and the veteran meets with the court to help develop and participate in the best possible treatment plan.  The treatment plan can last from a few months to over a year, and it may sometimes involve other punitive measures beyond court oversight.  In the end, the veteran benefits through treatment and possibly through reduced or dismissed charges.

The first veterans court in North Carolina was established in 2013 in Harnett County; there are now two more existing courts in Cumberland and Buncombe Counties, with another court set to begin operation in Forsyth County soon.[5]  The jurisdiction of the North Carolina veterans courts falls under state district courts, which supervise the treatment program.[6]  The court can handle various criminal charges against veterans who fall within the district court’s jurisdiction.  The term “veteran” is defined broadly by the federal government, covering any “person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.”[7]  The definition of “veteran” for the purpose of jurisdiction in North Carolina Veterans Treatment Courts can be even broader, requiring only that the defendant seeking treatment has prior military service, regardless of discharge status.[8]

Veterans Treatment Courts are new to North Carolina, but their success and expansion across the country indicates that North Carolina veterans will have increasingly effective avenues to treat and overcome substance abuse and mental health issues.

 



[2] VA Secretary Robert McDonald to Address Nation’s Veterans Treatment Courts, Global Newswire(July 23, 2015, 1:59 PM), https://globenewswire.com/news-release/2015/07/23/754663/10142953/en/VA-Secretary-Robert-McDonald-to-Address-Nation-s-Veterans-Treatment-Courts.html.

[3] See, e.g., Doug McVay et al., Treatment or Incarceration? National and State Findings on the Efficacy and Cost Savings of Drug Treatment Versus Imprisonment, Just. Pol’y Inst. (Jan. 2004),  http://www.justicepolicy.org/uploads/justicepolicy/documents/04-01_rep_mdtreatmentorincarceration_ac-dp.pdf.

[4] See, e.g., Michael Hewlett, Forsyth to open a veterans treatment court in fall; would be the fourth in North Carolina (Aug. 15, 2016), http://www.journalnow.com/news/local/forsyth-to-open-a-veterans-treatment-court-in-fall-would/article_f505879f-1fbc-5411-82ee-1e0f6e1770de.html.

[5] Id.

[6]  See N.C. Gen. State Ann. § 7A-272(e), (f) (West 2010).  A veterans court is most likely considered a “therapeutic court,” as the court is collaborative and non-adversarial. See Jamie Markham, Veterans Treatment Court, U. North Carolina Sch. of Gov’t (Nov. 12, 2014, 12:35 PM), http://nccriminallaw.sog.unc.edu/veterans-treatment-court/.

[7] See 38 C.F.R. § 3.1(d).

[8] See Jamie Markham, Veterans Treatment Court, U. North Carolina Sch. of Gov’t (Nov. 12, 2014, 12:35 PM), http://nccriminallaw.sog.unc.edu/veterans-treatment-court/.

 

The Effect of Non-Judicial Punishment

Written by Matt Silverstein (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner 

An integral part of the military judicial system is its utilization of Non-judicial punishment to resolve many disciplinary issues.  This blog post will discuss how non-judicial punishment operates and why it should be taken seriously by members of the armed forces.

Non-judicial punishment is codified in Article 15 of the Uniform  Code of Military Justice (“UCMJ”).                           (https://www.law.cornell.edu/uscode/text/10/815)   Article 15 allows an officer to impose a variety of sanctions upon a service member under their command after the commanding officer has determined their guilt in the alleged offense.  (http://www.wood.army.mil/sja/TDS/article_15_fact_sheet.htm)   These sanctions can vary widely but usually involve the forfeiture of a certain percentage of pay for a period of time or confinement to quarters for a set number of days.  Non-judicial punishment is most often utilized to discipline soldiers for misbehavior that is relatively minor in scale.  Many of the behaviors that can be punished through non-judicial punishment can be prosecuted through court martial, but often a commanding officer has the discretion to offer non-judicial punishment in lieu of harsher sanctions.  In general, non-judicial punishments tend to be less harsh than punishments handed out by way of court martial, but in the setting of a non-judicial punishment a service member lacks the procedural protections that a court martial proceeding contains, as one is allowing your commanding officer, and not a jury, determine your guilt.

When a member of the military is offered non-judicial punishment in a disciplinary action, they can decide for themselves whether or not to accept this form of punishment.  They are fully able to reject it, which then can result in facing a court martial.  If you accept the non-judicial punishment, the record of the punishment can remain in your military file for up to two years, or permanently depending on your rank.  If the record is permanent, it can only be removed through an action to correct military records, which is often an expensive and time-consuming process.  Additionally, a record of non-judicial punishment may also subject you to being removed from the military itself.  As a result of its desire to downsize in recent years, the Army has instituted a Qualitative Management Program (“QMP”) to identify soldiers that it wishes to retain. (https://www.army.mil/article/153650/what_soldiers_should_know_about_the_qualitative_management_program)  The QMP program utilizes review boards that evaluate certain classes of non-commissioned officers to determine if they should be retained for future service in the Army.  Those with Article 15 non-judicial punishments are among those most vulnerable to being involuntarily separated from service.  If a service member is separated under these circumstances, they would receive an honorable discharge, but would lose the opportunity to continue their military service.

All of this simply serves as a warning to those who currently serve or are considering joining the armed services.  Non-judicial punishment is a fact of life in the armed services and, in many ways, may have a less severe impact in the immediate term in comparison to a court martial.  However, non-judicial punishments remain in service member’s military records and can adversely affect their ability to remain in the service.  Thus, service members should always be mindful of their behavior and be aware of the potential repercussions of certain kinds of decisions they make in the service that can expose them to this sort of discipline.

Regenerative Medicine for the Armed Services at Wake Forest University

Written by Charlee Fox (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner 

Winston-Salem is home to the Wake Forest Institute for Regenerative Medicine (WFIRM). The institute has multiple research projects including: cell and gene therapies, replacement organs and tissues, a bladder research center, and —relevant in the armed services context—a military application.

Regarding the military applications, WFIRM is currently working on six projects: 3-D printing, body on a chip, engineering muscle implants, genital injuries, oxygen-generating materials, and printing skin cells on burn wounds. It has received major funding contributions from the Armed Forces Institute of Regenerative Medicine II and Body on a Chip that total $99 million. Here is a brief overview of what WFIRM will be working on for armed service members as found on their website.

3-D printing will focus on head and skull injuries. The generation of replacement tissues such as bone, nerves, blood vessels, fat, and muscle will better enable scientists and doctors to mend wounds obtained in combat. It is thought that those soldiers suffering from blast or high velocity projectile injuries will especially benefit from this reconstructive technology.

Body on a chip will model a body’s response to chemical and biological agents. Human cells will be used to create organ-like structures mimicking the heart, liver, lungs and blood vessels. The tiny structures will be kept “running” on a two-inch chip and will be monitored to see what happens when faced with chemical toxins or biological agents. The information gained from this will aid in developing treatments.

Engineering muscle implants will be a therapy for replacing diseased or damaged muscle tissue. Muscle cells are “preconditioned” to become better able to mimic already existing muscle cells in a human body. These cells will be implanted into the wounded area and have shown to promote the repair and regrowth of muscle tissue.

Genital and pelvic injuries have become more prevalent due to the devices used in the Afghanistan war. WFIRM is working to develop urologic tissues that could improve reconstructive procedures. These reconstructive procedures could provide wounded warriors with normality after such traumatic experiences.

Oxygen-generating materials will attempt to put oxygen into muscle tissue and keep it alive after a soldier is wounded. Scientists at WFIRM will use natural chemicals that generate oxygen to hopefully develop a quick and easy treatment that medics can apply to a wound immediately after it happens. This will thankfully give surgeons a better chance at reconstruction.

Lastly, WFIRM is working on printing skin cells on burn wounds. A tester printer has already been developed with the “ink” being skin cells. A scanner will determine the wound size and depth, then that data will be relayed to the printer which will “print” layers of appropriate skin cells over the wound. WFIRM is currently seeing if a kind of stem cell found in amniotic fluid and placenta is able to heal wounds. Hopefully, the printer will be available to soldiers within the next five years.[1]

You may reach the Wake Forest Institute for Regenerative Medicine at 336-713-7293. They are located in the Richard H. Dean Biomedical Building on 391 Technology Way in Winston-Salem, NC.



[1] See http://www.wakehealth.edu/Research/WFIRM/Research/Military-Applications.htm for source of above summaries.

 

The Military to Civilian Transition

Written by Elliott Tomlinson (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

In 2011, the White House established the Department of Defense Credentialing and Licensing Task Force. Its goal–to oversee the execution of credentialing of Department of Defense Service, such as Army and Air Force experience, for service members when they return to civilian life. Each year, many individuals transition from military to civilian life with professional skills they gained during their time in the military, but unfortunately, that do not translate to equivalent civilian positions making it more challenging for service members to make that transition.

Congress has taken some steps in an attempt to resolve this problem and combat Veterans unemployment. Many Veterans retire with exceptional leadership skills, extensive professional training, and are generally reliable as a result of the training they receive while in the military. They are ideal employees. So what then is the problem? It all comes down to civilian professional licensing requirements which are state level, and not federal.

Professional occupation licensing is regulated on a state by state level making it a difficult problem for the federal government to solve directly. This issue is especially relevant in North Carolina, given the large population of active and retired military members. North Carolina regulates over 100 different professions.  This includes medical jobs, truck drivers, aircraft maintenance workers, EMTs and Paramedics, and automotive mechanics to name a few.

The federal government is taking steps to make the transition easier. Through legislation and initiatives intended to inform licensing boards on the military training process state boards are more likely to recognize that training for civilian jobs. Additionally, the Department of Defense is working to track the requirements and adapt military training where possible to meet the civilian training requirements. For example, Army and Air Force medics receive basic certification from the National Registry of EMTs upon the completion of their training according to a 2012 DoD Credentialing and Licensing report.  Nearly all state licensing boards recognize this certification, however many states also have additional requirements. The goal, as laid out in the 2012 DoD Task Force’s report is to make this process more seamless so that military training can translate directly to civilian roles, such as an Army medic to a civilian EMT.

In 2013, North Carolina enacted Session Law 2014-67 specifically addressing the issue of military service members obtaining professional licenses in North Carolina. The bill directs state licensing agencies (of which there are many) to issue a license or certification for a “military-trained applicant to lawfully practice the applicant’s occupation in this State” if certain conditions are met. [1] Licensing boards are required to notify applicants if their military training meets the standards for this section within 30 days.[2] The criteria or requirements that are satisfied by military training must be published on the licensing board’s website as well as the NC Division of Veterans Affairs website.

North Carolina and many other states are working together to lessen the credentialing burden for qualified veterans, but there are still challenges. As long as licensing requirements vary by state there will not be a simple solution, however, improvements are being made.



[1] N.C.G.S. §93B-15.1(a)

[2] N.C.G.S. §93B-15.1(a1)

Traumatic Brain Injuries and Discharge Upgrades

Written by Kristin Smith (’17″) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

As the United States military continues to become more and more involved in conflicts overseas, men and women returning from deployment continue to suffer from Post-Traumatic Stress Disorder, commonly known as PTSD.

Veterans often have physical wounds, but the ‘invisible’ wound of PTSD is often harder to recognize. Symptoms of PTSD range from having recurring flashbacks and nightmares to depression like personality changes and avoidance of things one used to enjoy.[1] Although symptoms of PTSD are often clear to the veteran and his or her family, diagnosing PTSD and determining its root cause for physicians is a more complicated endeavor.

Although this diagnosis is complicated, it is necessary for many veterans who are applying for discharge upgrades. A brief example of a client scenario will illustrate this necessity:

A 67-year-old Army veteran contacts our clinic seeking a discharge upgrade. He was discharged from the Army under “other than honorable” conditions twenty-three years ago. He had a good service record until he served a combat tour in Saudi Arabia during the first Gulf War. He comes back stateside, and begins having trouble sleeping, nightmares, and constant paranoia. In order to cope, he begins abusing narcotics. He is then administratively discharged from the Army and categorized as “dishonorable.” This characterization of discharge prevents him from getting VA benefits and medical care.

Under these facts, this veteran may be eligible for a discharge upgrade that would allow him access to additional VA benefits if he can prove that he developed PTSD as a result of his service to our nation.  The evidentiary issue becomes proving that he had PTSD years ago. It is understandably harder to prove you were suffering from a disorder back then without being able to go back in time and perform a diagnostic test with a physician on your younger self.

However, new clinical findings that show a link between traumatic brain injuries (TBIs) and PTSD might give veterans a new way to create this evidentiary link.[2]  “Traumatic brain injury usually results from a violent blow or jolt to the head or body. An object penetrating the skull, such as a bullet or shattered piece of skull, also can cause traumatic brain injury.”[3]

A study conducted by researchers at a Marine Corp base in southern California and the Veteran’s Affairs San Diego Medical center have concluded that “[e]ven when accounting for pre-deployment symptoms, prior TBI, and combat intensity, TBI during the most recent deployment is the strongest predictor of post-deployment PTSD symptoms.”[4]

This is an especially concerning conclusion given the increased occurrence of TBIs during combat in recent years.

Pervasive use of improvised explosive devices (IEDs), rocket-propelled grenades, and land mines in the Iraq and Afghanistan theaters has brought TBI and its effect on health outcomes into public awareness. Blast injuries have been deemed signature wounds of these conflicts, with an estimated 52% of deployment-related TBI cases caused by IEDs. Of Operations Enduring Freedom, Iraqi Freedom, and New Dawn service members, approximately 10% to 20% reported mild TBI or concussion, and nearly 60% of those reported exposure to more than 1 blast.[5]

 

If veterans have medical records that show they were subjected to explosions or concussions during their military service, these records can be used as evidence that they likely suffered from PTSD years ago after the traumatic brain injury occurred in petitions to discharge review boards. Even if a veteran’s petition has been denied in the past, this study could qualify the evidence as “new and material” evidence that would allow the petition to be reconsidered.

If you were denied a discharge upgrade for lack of evidence of PTSD that was service related, it could be beneficial to re-examine your medical records for evidence of a TBI.

 


[1] National Institute of Mental Health, Post-Traumatic Stress Disorder. February 2016. https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml#part_145373

[2] Jon Hamilton, War Studies Suggest A Concussion Leaves The Brain Vulnerable To PTSD, Sep 26, 2016. http://www.npr.org/sections/health-shots/2016/09/26/495074707/war-studies-suggest-a-concussion-leaves-the-brain-vulnerable-to-ptsd

[3] Mayo Clinic, Traumatic Brain Injury. http://www.mayoclinic.org/diseases-conditions/traumatic-brain-injury/basics/definition/con-20029302

[4] Yurgil KA et al., Association Between Traumatic Brain Injury and Risk of Posttraumatic Stress Disorder in Active-duty Marines, 71 JAMA PSYCHIATRY 149–157 (2014). http://jamanetwork.com/journals/jamapsychiatry/fullarticle/1785175

[5]Id. at 150.

Veterans’ Employment Opportunities and Assistance

Written by Meghan Holland (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

The military equips veterans with a plethora of skills that can be translated into assets in the workplace. When describing military job candidates some of the strengths noted by the organization, North Carolina for Military Employment, included leadership, character, effectiveness, and resiliency.[1] With these characteristics, and many more, veterans would be able to successfully surpass the needs of employers. In North Carolina, there are a variety of resources and events aimed at providing employment for veterans and aiding them in the process of translating their experiences in the military, into the skills employers are searching for in the civilian work place. This blog is an attempt to gather those resources into one place and describe what services they provide, in hopes that this will aid veterans in effectively searching for programs that will meet their needs.

One resource is the NC Workforce Commerce, which provides specific services for veterans.[2] This website allows an individual to visit NCWorks Career Center, which provides access to a variety of resources including access to job fairs, workshops, job interview preparation, and resume/cover letter assistance. Through NCWorks veterans can also be given the opportunity to job postings 24 hours before the jobs become available to the general public. NCWorks also links to an apprenticeship program.[3] The apprenticeship program allows the participant to combine classroom learning and on-site training. Important financial notes for the apprenticeship program are            that the participant is paid for the work they do and veterans are able to continue access the GI Bill income supplements to their own income while participating in the apprenticeship program. This resource would be most helpful as a starting point for a job search because it provides the ability to receive assistance on all aspects of the job-seeking process. Further assistance can be sought through the Gold Card Initiative, described below.

Another resource is NCVETSLEGAL which has compiled a list of resources related to veterans and employment opportunities.[4]  One resource noted is the North Carolina Division of Employment Security: Services for Veterans.(The NC DES)[5]  This resource would be helpful for veterans who are seeking training services or need assistance in ensuring that their job applications are receiving the appropriate priority. This resource also links to the Department of Labor website, which provides information about national resources.[6] The NC DES also directs veterans to the resources provided on the NCWorks website. Another resource noted by NCVETSLEGAL is Stateside Legal: REALifelines: Veteran’s Employement and Career Transition Advisor.[7]  This link would be most helpful for a veteran seeking one-on-one advice about the process of seeking civilian employment. A final initiative highlighted on the NCVETSLEGAL website is the Gold Card Initiative.[8] The Gold Card Initiative would be applicable to veterans who served post 9-11 and are currently unemployed.[9] This resource provides similar services to those provided by NC Works. Some of the services provided through the Gold Card Initiative are job readiness assessments, career counseling, and referrals to job openings. The Gold Card Initiative allows veterans to have access to the NC Works Career Centers and receive extra benefits from the career center. To locate a career center, just plug you zip code into a locator and the surrounding career centers will be listed.[10]

Other non-profit organizations also provide resources for veterans who are in the process of seeking employment. One example is Patriots Path, which offers a five part course designed to help veterans transition to civilian employment in the Charlotte area. The course costs $25 and provides five weeks of trainings, where veterans are able to receive one-on-one mentoring, interest assessments, as well as covering a variety of topics related to job searching and success in the workplace.[11] This resource would be most helpful for a veteran with the ability to attend all of the classes. Another class option, is the Veterans Entrepreneurship Advantage, which is offered at Wake Tech.[12] Although, the 8 week course has already begun for the Fall of 2016, this course would be beneficial for a veteran interest in opening a small business.

 



[1] NC4VETS Resource Guide, Page 23.

[2] https://www.nccommerce.com/workforce/job-seekers/veterans

[3] https://www.nccommerce.com/workforce/job-seekers/apprenticeships

[4] http://ncvetslegal.org/job-training/

[5] https://www.ncesc1.com/individual/veterans/veteransmain.asp

[6] https://www.dol.gov/vets/index.htm

[7] http://webapps.dol.gov/elaws/VeteransCareerTransition.htm

[8] http://ncvetslegal.org/veterans-retraining-assistance-program-vrap/

[9] https://www.dol.gov/vets/goldcard.html

[10] https://www.careeronestop.org/LocalHelp/service-locator.aspx

[11] http://patriots-path.org/services/

[12] http://ncveteransworkinggroup.org/event/veterans-entrepreneurship-advantage-class/

The Differences between Military and Civilian Law: A Note of Caution about Off-duty Behavior

Written by Matt Silverstein (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

It would be clear to most individuals when they look at the military that it is distinctive from civilian life.  Not just in the functions that it carries out, but in culture and many other aspects of everyday life.  Most would also probably be aware of the fact that the military has a parallel justice system that can punish members of the military for a variety of offenses.  However, many may not be aware of the types of offenses that are punishable under the Uniform Code of Military Justice (“UCMJ) and the broad sweep of behavior that can be regulated while one serves in the military.

The most notable of these behaviors that can be punished is adultery.  While many states may retain prohibitions on adultery on their statute books, they have long been unenforceable especially in the wake of the Supreme Court’s decision in Lawrence v. Texas in 2003 which reaffirmed the principle that sexual acts between consenting adults were beyond the power of the state to regulate.[i]  However, under the UCMJ, the military can and still does punish individuals who engage in adultery.  This may seem strange in this day and age that behavior of this sort would even be a concern for the government, as it is something that is deeply involved in one’s personal life.  However, the reasons for this have been made very clear.  Such acts are punishable because they are believed to harm the good order and functionality of the military.  A simple example can illustrate this point.  If a soldier has an affair with the wife of a superior officer or vice versa and the other spouse found out about such behavior, they are unlikely to be well disposed towards that soldier.  In fact, it would not be surprising if they are very hostile towards them given what may have occurred.  This would almost certainly affect one’s ability to take or give orders and raises the specter of unfair treatment of individuals based on personal grievances.  Because of this, and the need for the military to function as smoothly as possible, such behavior is not tolerated and can be punished quite harshly.

Other similar behaviors are also prohibited.  In particular fraternization between officers and enlisted men is explicitly banned.  Under Army Regulation AR 600-20, fraternization consists of a relationship that appears to present “undue familiarity” between soldiers of a different grade.[ii]    Thus it prohibits more than just sexual relationships.  Being close friends with a soldier of a different rank would likely be enough to qualify as fraternization.  Certain behaviors, like the selling of a car or home, as well as socializing at an event for an entire unit are exceptions to this otherwise stringent rule.  It may seem strange that type of behavior is also prohibited by the military but again the rationale is that in military life, an enlisted member must obey an officers orders and too close of a relationship between them may impair the ability for these orders to be carried out, much the same as the justification for the prohibition on adultery.

All of this serves not to criticize the military and its decision making process.  There are reasons to both agree and disagree with the military for how it handles these issues.  This post is meant more to stress to those who may be interested in joining the military that, once in the service, you are subject to a different standard of conduct than you are used to in the civilian world.  Simply put, you are held to a higher standard of personal conduct and this standard does not lessen when you are off-duty or not on base.  It is important to be aware that these avoidable issues can have legal ramifications while in the service and that they can, and have, cut short many a promising career.  Just remember to always be familiar with the rules that apply to you as a member of the armed forces and how these rules impact your life.

Obtaining In-State Tuition for Military Spouses and Children

Written by Adam Nyenhuis (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

The price tag for a college education has skyrocketed over the last several decades, and paying for college has become an increasingly difficult proposition for working families. Accounting for inflation, the average annual cost of attendance at a public, four-year college (including tuition, fees, and room & board) has increased from $7,833 in 1975 to $19,548 in 2015.[1] Without scholarships or need-based aid, this brings the four-year average total cost of a bachelor’s degree to $78,192 at public colleges—and that does not account for interest that could accrue on loans used to finance the education. The cost of a four-year education at a private university more than doubles to an eye-popping total of $175,684.[2]

This is enough of a headache for almost any family, but it can be even worse for military families with college-bound students. The difference between in-state and out-of-state tuition at many public colleges can be stark. In the 2010-2011 academic year, tuition for out-of-state students at four-year colleges cost on average $8,990 more per year than in-state tuition.[3] States vary widely in their requirements to establish “in-state” status for tuition purposes, but dependent students must usually have at least one parent who is a state resident for one full year before the student matriculates in college.[4] If the student receives substantial financial support from outside the state of the student’s college, the student’s claim to in-state tuition could be in jeopardy.[5] This can pose problems that disproportionally affect military families, who move between states far more often than non-military families. Frequent moving makes it more likely that college-aged military children will have not lived in a state long enough to obtain in-state tuition under usual standards, or that their parents will move out of the state in which they attend college, which could endanger their claim to in-state tuition.

Fortunately, for public colleges, a relatively recent federal law provides military families with some relief. The Higher Education Opportunity Act states that public colleges cannot charge military spouses or dependent children more than in-state tuition rates, so long as the service member is on active duty for more than 30 days and is stationed in the state of the relevant public college.[6] There is the additional requirement that the relevant state receive certain types of federal funding, such as Work-Study, Urban and Rural Community Action programs, and Native American programs, to name a few.[7] Therefore, it is important to research whether the relevant state receives the required funding. Because this only applies to service members on active duty, it does not apply to retired service members. However, the law also provides that once a student begins paying the in-state tuition rate, that student will pay that rate for as long as he or she is continually enrolled at the institution. This means that dependents of service members who move—either due to a change in duty station or retirement—will not lose their in-state status. The important point to remember is that even though the Higher Education Opportunity Act has been the law for several years, not all college financial aid workers will be familiar with these standards. For that reason, students and/or their service member parents should be prepared to provide financial aid workers with the law’s requirements to make sure that the student receives the lower in-state rate.  More information on the Higher Education Opportunity Act.



[1] Trends in Higher Education, College Board, https://trends.collegeboard.org/college-pricing/figures-tables/tuition-and-fees-and-room-and-board-over-time-1975-76-2015-16-selected-years  (last visited Oct. 25, 2016).

[2] Id.

[3] In-State vs. Out-of-State Tuition, George Washington Univ., https://heath.gwu.edu/state-vs-out-state-tuition (last visited Oct. 25, 2016).

[4] In-State Tuition and State Residency Requirements, FinAid, http://www.finaid.org/otheraid/stateresidency.phtml (last visited Oct. 25, 2016).

[5] Id.

[6] Higher Education Opportunity Act, 20 U.S.C. § 1015d (2015).

[7] See 42 U.S.C. §§ 2711–2996 (2015).

Waiving the California National Guard Debt

Written by Charlee Fox (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner 

The news of the California National Guard call for enlistment bonuses repayment has shaken many service members across the United States. In short, a recent audit found that around $22 million in unauthorized bonuses were given to soldiers.[1] The money included reenlistment bonuses and student loan forgiveness bonuses. Out of 11,000 soldiers in the audit: (1) 1,100 soldiers had received an unauthorized payment that they are required to pay back, (2) 5,400 soldiers had missing paperwork or lack of documentation of eligibility, and (3) only 4,000 soldiers were found to have eligibility for the payments they received. This dilemma poses multiple legal issues. Thus, one relevant issue is contractual obligations of the service members.

Many recipients of the enlistment bonuses claim that they both: (1) signed the contract in good faith[2], and (2) detrimentally relied on the money they received. Chapter One §1 of the Second Restatement of Contracts defines a contract as “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” A promise “may be stated in words either oral or written, or may be inferred wholly or partly from conduct.[3]” The development of a contract requires more than one party (each having capacity) as well as mutual assent[4] and consideration[5]. However, the presence of detrimental reliance “may make a contractual remedy appropriate even though uncertainty is not removed.[6]

Here is an example of a re-enlistment contract. Section V of this document promises that “[b]onus payments will be received IAW USAR SRIP.” Further, it states that “[r]etaining this bonus once paid is contingent upon satisfactory participation in the Selected Reserve and subject to current recoupment policy.” Thus, in Section IX, it states “I understand that calculated overpayments will be recouped and calculated underpayments will be paid to me.”

Unfortunately, if the re-enlistment documents signed by soldiers in California had a clause similar to that stated in Section IX above, then a remedy may not be as easily available. In the present California situation, there were two parties (i.e. the soldier and the government), one of which made a written promise (an offer) to the other. The soldier accepted the promise with consideration and able capacity when he signed the contract with the idea that he would be compensated. However, if the contract that the California soldiers signed had a clause acknowledging what happens in the event of a miscalculation, there may be little that can be done.

A contract is only deemed unenforceable if certain situations such arise. Two relevant situations for the California service members include mistake and public policy grounds. The factors for avoiding a contract based on a unilateral mistake (i.e. mistake from the government) are: (1) a unilateral mistake, (2) of a fact in existence at the time the contract was made, (3) the basic assumption upon which the contract was made, (4) which has material and important effect on the value of what’s being exchanged if (5) the mistake is observable, or (6) the enforcement of the contract is unfair. Thus, the California soldiers affected by this re-pay requirement may have a claim for mistake if their re-enlistment bonus contracts have no clause discussing miscalculations, or if the clause is present but soldiers can show the enforcement to be unfair (e.g. via detrimental reliance).

Alternately, it is possible that the California soldiers may have a claim regarding public policy. Chapter 8, § 198 of the Second Restatement states: “[a] party has a claim in restitution for performance that he has rendered under or in return for a promise that is unenforceable on the grounds of public policy if he was excusably ignorant of the facts or of legislation of a minor character. . . or he was not equally in the wrong with the promisor.” In California, the soldiers were not equally in the wrong with the promisor because they were unaware of their ineligibility. Additionally, Chapter § 199 states “[a] a party has a claim in restitution. . . if he did not engage in serious misconduct and . . . allowance of the claim would put an end to a continuing situation that is contrary to the public interest.” Therefore, the California soldiers may have a case for contract voidance based on public policy because the issue affects soldiers who have put their life on the line to protect all Americans.

It appears that the best solution to the re-enlistment repay issue is likely Congressional intervention. It was stated that “the California National Guard welcomes any law passed by Congress to waive these debts.”[7] Soldiers may submit individual petitions and the military has the authority to waive individual repayments, but not all at once.[8] Consequently, it will be interesting to see how Congress handles this million dollar issue.

If you are a soldier affected by re-enlistment bonus repayment and would like to petition, please view this website.

Since the writing of this article, Secretary of Defense Ash Carter has suspended “all efforts to collect reimbursement” until he is “satisfied that our process is working effectively.”  This post will be updated in the event of any change in the Mr. Carter’s position.

 


[1] See http://www.cnn.com/2016/10/24/us/national-guard-recruitment-bonus-repayment/

[2] In accordance to Comment a in Chapter 9 § 205 of the Second Restatement of Contracts, good faith is defined as “honesty in fact in the conduct or transaction concerned.”

[3] Chapter 1, §4 Second Restatement of Contracts

[4] Mutual Assent is explained in Chapter 3 § 17 by stating “the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.” This can be thought of as the making and accepting of an offer.

[5] Chapter 4 §71 states that “[t]o constitute consideration, a performance or a return promise must be bargained for.” Further, “[a] performance or return promise is bargained for it if is sought by the promisor in exchange for his promise and is given by the promise in exchange for that promise.” That is, consideration acts as an assumption that the contract will be enforced.

[6] Chapter 3 § 34

[7] See http://www.cnn.com/2016/10/24/us/national-guard-recruitment-bonus-repayment/.

[8] Id.