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Breach of Honor

Veterans who leave the military with other-than-honorable discharges often are denied health care and other Veterans Affairs benefits. Yet many suffer from conditions—such as post-traumatic stress disorder—that could have contributed to the behaviors that got them kicked out in the first place. The University of Denver’s Veterans Advocacy Project wants to help.

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It’s dark and quiet when Larry Morrison rises for work, the humidity hanging heavily over his north San Antonio, Texas, neighborhood. Outside, it’s already hot, and the sun won’t even be up for another hour. By then, Morrison will be across town, beginning a 12-hour shift prepping concrete in the 95-degree heat. It’s not as bad as Iraq, though. There, by the time the Fort Carson sergeant had finished scrubbing the sand and sweat and blood out of his pants, the T-shirt he’d just washed would already be dry—baked and faded by the sun.

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Larry Morrison (far right), who spent 20 years in the Army, in Afghanistan in 2011. Courtesy of Larry Morrison

Still, this wasn’t what Morrison had imagined life would be like when he got back from the desert. Over the course of his 20-year career in the Army, Morrison deployed four times to combat zones in the Middle East—three times to Iraq and once to Afghanistan—and earned a Bronze Star for his service. He watched soldiers die in front of him, transported the wounded and the dead back to the base in his tank, and even accompanied the remains of one comrade all the way home to the United States. After struggling with post-traumatic stress disorder for years, Morrison was ready to be medically retired from the military in March 2015. Then, two hours before his retirement was set to take place, those orders were revoked. Morrison was issued an other-than-honorable discharge and stripped of his retirement and disability pay.

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Today, the 44-year-old labors alongside men half his age for $14 an hour. He’s burned through the $20,000 he had in savings and watched Army friend after friend disappear. Broke, but not broken, Morrison has found a new ally as he faces one of the biggest battles of his life: clearing his name with the U.S. military.

Promote to Sergeant First Class now; ahead of all peers Technical competence and leadership is unmatched in the troop Dedicated to the troop, the platoon, and the unit; puts the mission and his soldiers before all else An outstanding soldier who exemplifies what a soldier should and [sic] aspire to be—Noncommissioned Officer Evaluation Report for Larry Morrison February 10, 2004

Inside Ann Vessels’ third-floor University of Denver Sturm College of Law office, sandwiched between flyers announcing work opportunities for students, hangs a bulletin board mosaicked with snapshots of her family. The photos are the clear stars of these walls. “I have 11 grandkids,” says the DU law school externship coordinator, pointing to the board behind her desk. “Those are Sean’s two right there.”

Sean Irwin is Vessels’ youngest, and in many ways, he’s responsible for the piles of paperwork stacked on her desk. Irwin left Colorado State University in 2006 during his fourth year to join the Marines. He spent the next eight years in the Corps, including three deployments to the Middle East where he fought in Ramadi and near Fallujah during the 2007 surge in Iraq. Even though Vessels has shared her son’s story countless times, her throat still tightens and tears threaten with every retelling. “They were on patrols every night,” she says. “You can imagine what he was doing over there.”

When her son came home to Colorado in 2013, he bore many of the signature wounds of America’s longest war. Suffering from PTSD and going through a divorce, he moved in with his parents in December 2013 while he awaited approval of his Veterans Affairs (VA) benefits. In September 2014, he still didn’t have them. The VA was experiencing one of the biggest backlogs of benefits applications in its history. “Had it not been for us, he’d have been on the streets,” Vessels says. “That really opened my eyes to the whole issue of homelessness among veterans.”

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In December 2014, more than a year after he’d left the Marines, Irwin finally got his benefits. By then, Vessels was on a mission; she wanted to ensure all veterans received access to the help they deserve. And as a law professor with an upcoming sabbatical, she was in a position to do so. Most professors use their leaves of absence to conduct research or to work on papers. With the support of the law school, Vessels spent hers creating the Veterans Advocacy Project (VAP), a class and legal clinic focused on helping veterans with their benefits. She envisioned a seminar course for second-year law students with a requirement of 150 hours of work at a legal clinic. Through contributions from the Colorado Bar Foundation, the Sturm Family Foundation, and a couple of private donors, Vessels raised enough to fund the program initially. The only problem? “I knew nothing about veteran benefits law,” Vessels says. “So I figured I’d better find people who did.”

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Family Ties Veterans Advocacy Project founder Ann Vessels and her son Sean Irwin, a University of Denver law student and former Marine. Photo by Matt Nager

Vessels recruited Tim Franklin and Mike Shea to teach the seminar as adjuncts and to oversee students at the legal clinic. Franklin began his legal career working on VA benefits appeals with a Boulder attorney who’d been practicing veteran law for more than 20 years. He’s one of only a handful of Colorado attorneys who specialize in this area, and he knows the VA appellate system well.

Shea had been focused on veteran law since 2010, after he retired from the Colorado secretary of state’s office, and brought a different kind of expertise to the classroom. A former Marine and Colorado National Guardsman, Shea had flown helicopters in Vietnam and Iraq. In 2003, he volunteered to fly tip-of-the-spear medevac missions in Iraq. His experiences there motivated him to become involved in veteran law when he returned to the United States. “One of my crew chiefs had some severe PTSD issues,” he says. “On a [medevac] helicopter, you’ve got two pilots, the medic, and a crew chief. The crew chief is often the guy with his hand in the patient’s chest holding onto the artery while the medic does his thing. If you’re young and haven’t been exposed to that, it can be traumatic.”

Together, Franklin, Shea, and Vessels developed a curriculum in six months. In August 2015, DU offered its first VAP class to six students. As word about the VAP’s free legal clinic spread among veterans, the clinic’s caseload grew. In its first semester, the VAP took on roughly 50 cases.

What surprised everyone, though, wasn’t the response the clinic generated. It was the type of cases they were seeing. While many veterans came to the clinic seeking help with their VA benefits or appealing disability ratings (the VAP won the equivalent of $1.5 million in VA appeals in its inaugural year), others came desperately looking for a solution after being separated from the military for misconduct. By the end of the first year, many of the VAP’s cases were veterans who had been branded with a kind of career and benefits death sentence: other-than-honorable discharges.

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Committed warrior who enforces the highest standards of conduct discipline during peacetime and combat operations Lives the Army values as they apply to soldiers in a combat zone Shows respect to all soldiers, superior and subordinate —NCO Evaluation report for Larry Morrison May 3, 2005

When service members leave the military, the “separation” (in military jargon) is given a characterization: honorable, general under honorable conditions, other than honorable (OTH), bad conduct, or dishonorable discharge. This is essentially a veteran’s permanent performance review. It will be part of the paperwork he or she will have to show employers and the VA to prove military service. Anything less than honorable suggests the veteran had at least some problems in the military.

Like grades and performance reviews, discharge characterizations can be subjective. Bad conduct and dishonorable discharges are given if a soldier commits a major crime (such as a felony); there’s not a lot of wiggle room in those instances. The reason for receiving generals and OTHs, though, is a bit murkier. They can be given for other crimes (such as DUIs or assaults), breaking military rules (like going AWOL), or testing positive for drugs—among other things. There’s a good reason unfavorable discharges exist: They’re leverage the military uses to ensure the integrity of its branches.

Less-than-honorable discharges come with real consequences. While veterans with general discharges are still eligible for all VA benefits, except educational ones like the GI Bill, those with OTHs are not. They get nothing: no health care, no disability, no GI Bill, no retirement pension (even if they’ve served enough time—typically 20 years—to qualify). Because of that, the decision to hand down an OTH isn’t taken lightly, according to retired Colonel Bob McLaughlin, a former Fort Carson garrison commander who now heads up Colorado Springs’ Mount Carmel Center of Excellence, an organization dedicated to helping veterans. “Commanders agonize over these decisions,” he says.

Still, between 2011 and 2015, 11 percent of the more than 750,000 service members who left the military were kicked out with less-than-honorable discharges, according to a May report from the Government Accountability Office (GAO). About two-thirds of these separations were classified as general under honorable conditions. The other third were OTHs. The GAO also reported that 16 percent of the service members who had been separated for misconduct had been diagnosed with PTSD or traumatic brain injury (TBI) within the previous two years. When the GAO figured in other attachment and alcohol disorders that could be associated with military service, the figure rose to 62 percent.

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That matters because brain injuries incurred in military training or combat can lead to all kinds of poor decision-making. As Shea puts it, “You take an 18-, 19-, 20-year-old guy whose brain hasn’t fully developed anyway and you mess with it—and all of the sudden, they do dumb stuff,” like self-medicate with alcohol or drugs. Drink and drive. Get into fights. Go AWOL. The GAO recognized the connection and titled its May report “DOD Health: Actions Needed to Ensure Post-Traumatic Stress Disorder and Traumatic Brain Injury are Considered in Misconduct Separations.” In its findings, the GAO recommended the secretary of defense take action to make sure the various branches regularly monitor policies related to screening service members for PTSD and TBI before they are kicked out for misconduct.

The GAO report, which was initiated by a 2015 legislative mandate, isn’t the first document to link OTH discharges and potential brain injuries. It’s simply one of the first official government reports to evince a trend that’s been reported anecdotally by the media in recent years. The Colorado Springs Gazette won a Pulitzer Prize for its 2013 series “Other Than Honorable,” which revealed that a disturbing number of Fort Carson combat soldiers suffering from brain injuries had been given OTHs—and that some officers appeared to have colluded to separate soldiers this way because in an era of rapid and successive combat deployments, they needed to replace them. And last year, NPR earned a duPont Award for investigating why several injured Colorado combat veterans had been separated for misconduct and given OTH discharges. One of those men was Larry Morrison.

Unquestioned loyalty to the unit, the mission, and the Army Consummate professional; reflects highly of the NCO Corps Displays unlimited potential for greater responsibility; performs beyond his duties —NCO Evaluation Report for Larry Morrison February 7, 2006

In December 1995, a 60,000-troop NATO force moved into Bosnia-Herzegovina to enforce peace following nearly four years of a brutal civil war that claimed at least 100,000 lives. Between two and three million land mines dotted the Bosnian landscape, where soldiers, mostly from Europe and North America, manned checkpoints with heavily armed tanks.

Seven weeks later, on February 3, then Army Private First Class Morrison was stationed with 11 other men at a checkpoint near Gradačac, a midsize northern Bosnian manufacturing town. Well-known for its 18th-century castle, Gradačac had been severely bombed during the conflict. At around 3:45 p.m., Morrison’s platoon sergeant, Donald Dugan, left the checkpoint and walked into a minefield about 200 yards away. From afar, Morrison watched as Dugan knelt over a mine, trying to defuse it. Then, an explosion: The mine had gone off in Dugan’s hands. He died instantly. Although he didn’t know it at the time, Morrison had just witnessed the United States’ first death in the peacekeeping mission. He’d been in the Army for three months.

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Born in Kansas City, Kansas, the fourth of five kids, Morrison knew he wanted to be in the Army from the time he was old enough to understand the difference between the branches. Not the Navy. Not the Marines. Not the Air Force. The Army. “I liked tanks,” he says. “That’s it.” Between his junior and senior years of high school, Morrison enlisted in the National Guard. Several years after graduating, he completed his Army training in November 1995—the same month presidents Slobodan Milošević (Serbia), Franjo Tuđman (Croatia), and Alija Izetbegović (Bosnia-Herzegovina) drafted the Dayton Accords in Ohio, essentially ending Bosnia’s civil war. Morrison was immediately sent to Büdingen, Germany, to join an armored division as a tank driver. A week later, his unit went to Bosnia.

Over the course of the next 20 years, Morrison deployed to combat zones in Iraq and Afghanistan four times. On his first tour in Iraq, one of his friends was shot in the throat and killed by a sniper. He was in Mosul when a suicide bomber walked into the mess hall at Forward Operating Base Marez and detonated a vest armed with explosives, killing 22. In Afghanistan, he joined the armored unit made infamous when New York Times photographer Joao Silva lost his legs while on patrol with them. One of the soldiers from that unit, Specialist Pedro Millet Meletiche, died in August 2010 while sweeping for mines in the Arghandab River Valley. Meletiche had been in Afghanistan for three days. It was Morrison who accompanied the 20-year-old’s remains back to his family in Elizabeth, New Jersey. And it was Morrison who helped put the unit’s morale back together when he returned, a feat that earned him a Bronze Star, a military honor given to service members who distinguish themselves “by heroic or meritorious achievement or service.”

All told, Morrison spent nearly four years surrounded by war. By the time he returned to Colorado in 2011 following his tour in Afghanistan, the then 36-year-old began to unravel from the exposure to violence. He’d been seeing a counselor for PTSD since his first deployment to Iraq, but the condition had become chronic. Newly divorced with sole custody of his 12-year-old daughter, Morrison began self-medicating with alcohol. He was arrested for driving under the influence and accepted a deferred sentence (meaning after he completed a probationary period without incident, the DUI would be removed from his record). In January 2013, after receiving a diagnosis of chronic PTSD, he was moved into Fort Carson’s Warrior Transition Unit, where soldiers with complex injuries, both physical and mental, receive personalized care. He spent nearly two years there. A medical board in 2014 recommended he be retired with 100 percent disability on account of his PTSD.

That same year, Morrison attended a party in Aurora where a fight broke out and one reveler was shot in the shoulder. Some of the partygoers were members of the Sin City Disciples, a motorcycle club to which Morrison had once belonged and that the Bureau of Alcohol, Tobacco, Firearms and Explosives considered a criminal organization. (This was the same club implicated in the 2012 shooting death of Virgil Means in Colorado Springs; several Fort Carson soldiers were involved in the killing.) Morrison was charged with second-degree assault in connection with the fight (although he was not the shooter), but the district attorney later dismissed those charges, citing a lack of evidence. In fact, the victim even testified on Morrison’s behalf at his Army separation hearing. The incident would have a catastrophic effect on Morrison’s career, though. On March 17, 2015, just hours before his discharge was set to become official, the retirement orders were revoked. Instead, after 38 minutes of deliberation, an administrative separation board had recommended Morrison be given an OTH discharge, citing the DUI and association with the motorcycle gang as the primary reasons. (It also cited a previous careless driving charge that the board had referred to as reckless driving.) The Army took nearly a year to review the case, but on February 7, 2016, Morrison was stripped of his military ID. Three days later, the Army officially separated him. Status: other than honorable.

Completely loyal NCO with impeccable work ethics Unlimited potential; soldiers deserve his leadership Dynamic leader; will excel in the most difficult and challenging situations —NCO Evaluation Report for Larry Morrison January 10, 2007

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Planted next to a doggy daycare center and just down Santa Fe Drive from hipster coffee haven the Molecule Effect, the Volunteers of America Bill Daniels Veterans Service Center is more than just a pretty new brick building on a rapidly gentrifying street; it’s also a microcosm of unmet veteran needs. The center houses 12 organizations, including the VAP, each dedicated to serving vets in different ways. Various government agencies, like the VA’s Programs for the Homeless, have offices here, as do nonprofits such as Project Sanctuary, which provides therapeutic retreats for veterans and their families. Metro Veterans Upward Bound assists former service members in finding educational opportunities, while the Mission Continues provides a community-focused way for vets to reintegrate. Upstairs, in a pastel-hued lounge area, shelves hold nonperishable food and personal items like toothpaste and deodorant—free to any veteran in need. While the decor here is anything but militaristic, the small conference rooms just down the hall most certainly are. Each bears a name in accordance with the military’s phonetic alphabet: Alpha, Bravo, Charlie, etc. In the fall of 2016, Larry Morrison walked into one of these rooms.

Like many of the VAP’s clients, Morrison found his way to the clinic by word of mouth. He’d already attempted to change his discharge by contacting his post commander and his post sergeant major, and he’d written a letter to the Judge Advocate General’s Corps and to the Office of the Army Inspector General—all to no avail. Finally, a Fort Carson ombudsman suggested he reach out to the VAP to see if someone there could help him appeal his status.

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Morrison received an other-than-honorable discharge in 2016 and now works construction. Photo by Matt Nager.

Appealing a discharge characterization is a notoriously difficult, convoluted, and lengthy ordeal that often involves two separate appeals processes—one with the VA and one with the military. While veterans with OTH discharges are not automatically entitled to VA benefits and health care, they can ask for a “characterization of service” determination from the VA. The VA then reviews their records independent of the military and decides whether or not to approve benefits. If the VA determines the veteran’s service to be honorable—despite the military’s classification—the veteran can receive VA health care and disability pay. The entire process can take the better part of a year, and it still does not change the former service member’s discharge status.

To do that, the veteran must file an appeal to upgrade his military record with his branch’s Discharge Review Board (DRB). (If it’s been more than 15 years since a veteran was discharged, he doesn’t have the option of going through a DRB; he must go directly to the Board for the Correction of Military Records.) The service member can ask for a records review in which a DRB of between five and 10 officers re-examines the veteran’s file. Should the upgrade request be denied at this point, the veteran can ask for a hearing in which he (and/or his attorney) argues the case in front of a new board of five officers.

According to Shea, review boards have, on average, 15 minutes to go over a veteran’s entire file—due in large part to the sheer volume of cases—so most discharges are upheld at the records review stage. For this reason, many appellants simply skip this step and ask for a hearing to save time. Currently, it takes about a year and a half from the date of request to get a hearing. If a veteran is still unsuccessful at his hearing, he can file an appeal with the Board for Correction of Military Records or file an appeal in federal court.

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Even attorneys with years of legal experience can be daunted by the level of bureaucracy involved in filing for an upgrade, which is why so few make these kinds of appeals a regular part of their practices. Then there’s the matter of compensation. The individuals most in need of assistance—those for whom less-than-honorable discharges and brain injuries make it difficult to find and keep jobs—can hardly afford to pay an attorney’s hourly fees, never mind the cost of travel for hearings. Attorneys could build in contingency fees, but discharge upgrades can take years to resolve, so that’s not an option for most lawyers. “I’m retired, so I can do this,” Shea says. “What lawyer who is trying to support a family is going to say, Sure, OK?”

That’s why organizations such as the VAP are so vital. In fact, at its annual meeting this month, the American Bar Association is introducing a resolution that urges Congress to not only establish more lenient and expedited discharge review processes, but also implores the legislative body to allocate funding to support civil legal aid and pro bono organizations like the VAP to help veterans navigate the legal labyrinth. It’s an attempt by the legal community to acknowledge the significance of the issue—and its own jargon-y way of saying to the veteran community, “We’ve got your six.”

Endures and succeeds under stress Always places unit, mission and Soldier’s welfare first Outstanding leader and mentor, always displays the finest qualities of the NCO corps Unlimited potential; expertise and knowledge will be invaluable to any unit he is assigned to —NCO Evaluation Report for Larry Morrison December 18, 2009

If you ask Morrison about his time in Iraq—25 months total—he’ll tell you first about the smell. Iraq doesn’t have an advanced sewer system; instead, raw sewage, black and slushy, runs from houses into roads and onto boots. The excruciating heat only enhances the stench. He’ll tell you about the sand; the fine, blowing grit gets into everything—clothes, weapons, teeth, and even, it seems, under a soldier’s skin. His soft chuckle becomes a full belly laugh as he describes that sand as a constant ingredient in his MREs. That’s military slang for “meal ready to eat.”

It’s a language Irwin also speaks. Having spent eight years in the Marines, including three tours overseas—one to Iraq just a few months before Morrison—he’s as familiar with the military’s acronyms as he is with the high-calorie, often awful-tasting prepackaged meals. But today, the 33-year-old is fluent in another language, too: legalese.

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After leaving the Marines with an honorable discharge in 2013, Irwin finished his degree at the University of Colorado Denver and applied to law school with the intention of becoming a public defender. His experience waiting out the VA system while coming to terms with his own PTSD had, in some ways, pushed him into the specialty. “When I got out, I was lucky. I had a support structure; I wasn’t left to fend for myself,” he says. “So many people don’t get good representation because they can’t afford it. You get these guys, like the ones at the VAP, and the whole system is stacked against them from the start.” Irwin got into DU’s law school and started the same year the VAP debuted. He joined the program the next year.

DU isn’t the only law school in the country working on this issue. The Pioneers are part of the National Law School Veterans Clinic Consortium, a group of 19 law school clinics dedicated to addressing veterans’ legal needs on a pro bono basis. Williams and Mary, John Marshall, and Stetson have substantial programs. So does Yale, which last year partnered with the Connecticut VA system and several Veteran Service Organizations to reach out directly to veterans who might qualify for discharge upgrades.

At the VAP clinic, veterans are greeted by one of the eight students enrolled in DU’s legal seminar. The students spend an hour, maybe two, listening to a veteran’s story to determine if their issue is something the clinic can help with. If the case falls outside the clinic’s domain—as would family law or a housing issue—the students connect her with the appropriate organization. “Veterans really want to tell you their stories first,” supervising attorney Tim Franklin says. “The hard part is teaching the students to get to the facts.”

The students who sign up for the VAP do so for myriad reasons. They do it for the experience: Over the course of their 150 hours in the clinic, they’ll learn basics about running their own practices, from billing to brief-writing to using specialized legal software. But many of them also have some connection to the military—a family member or friend who served—and some, like Irwin, are veterans themselves. Since its inception two years ago, the VAP has had 11 interns who were current or former military, among them an Army JAG officer and a former West Point student. When Morrison first visited the VAP last fall, he spoke with Irwin, and the former Marine immediately put him at ease. “He could relate,” Morrison says. “He understood, and once he heard my story, he was really interested in the case.” Only a second-year law student at the time, Irwin needed a supervising attorney to oversee Morrison’s case. He found one in his mom.

Possesses the moral courage to always do what is right Highly dedicated and professional NCO Driven to succeed by self motivation and strong sense of purpose—NCO Evaluation Report for Larry Morrison January 4, 2012

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From the junction of Academy Boulevard and Airport Road in Colorado Springs, the view of Pikes Peak is spectacular—a sentinel presiding over the landscape with dozens of smaller summits nudging up against it. But that’s about the only uplifting thing at this intersection. Fast-food chains and cheap motels crowd the corners, while Memorial Gardens Cemetery and Funeral Home sprawls to the southeast. Across the street, Extra Space Storage’s rows of roll-up doors extend for almost an entire block. For Morrison, one of those garages became a mausoleum of a different sort—the final resting place for almost all of his things.

After his OTH discharge, Morrison could no longer afford the three-bedroom house in Fountain he shared with his teenage daughter. They’d moved in when she was a freshman in 2012. She’d just made the varsity cheer team. The house’s location across the street from Fountain Fort-Carson High School made it easy for Morrison to watch his daughter perform at Friday night football games. They spent weekends traveling to Texas and Las Vegas for cheer competitions. Morrison learned to tie hair ribbons as precisely as the laces on his combat boots.

Once he’d been recommended for an OTH, Morrison couldn’t afford trips to Vegas anymore, or even school supplies. He sent his daughter to live with her mother in Washington, D.C., just before her senior year. Then he packed up his life—furniture, photos, souvenirs from his tours overseas—shoved it all into a 10-by-25-foot storage space, and moved into a one-bedroom apartment with his girlfriend.

By the fall of 2016, Morrison had spent all of his savings. He and his girlfriend decided to move to Texas to be closer to family. He sold his Ford truck and gave his beloved boxer, Sniper, away. He sold everything he could out of the Extra Space storage unit, left the rest, and stopped paying the $200 monthly fee. “You have guys coming out of the state pen, and they have a better start than we [veterans with OTHs] do,” he says. “At least prison helps you with a little bus fare when you get out.”

Today, Morrison consults with Irwin and Vessels mostly by phone and email. When he first moved, they spoke almost weekly. Now it’s less frequent. That’s because they’re waiting: Morrison’s attorneys asked for a characterization of service determination from the VA this past November. They should get an answer by the end of the year. His case with the DRB, though, is likely to take much longer. Filed in March, it will probably be at least a year before Morrison gets a hearing.

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To win his appeal with the DRB, Morrison will have to make a case for inequity and/or impropriety, as these are the only two grounds upon which the DRB generally grants upgrades. His legal team has built a case for both.

In their eight-page legal brief, Morrison’s attorneys’ argument for impropriety not only highlights procedural errors (he was barred from having military counsel at his separation hearing, and the separation board was established by a unit he no longer served under), but also that the establishment of the board in the first place was based on a charge—second-degree assault—that was later dismissed. The board ultimately did not cite the assault charge as a reason for Morrison’s OTH discharge. Instead, it focused on the DUI and careless driving charges and his alleged association with an outlaw motorcycle gang. (Officials at Fort Carson declined to comment on the case.) Morrison disputes the latter premise, noting that he was a probationary member of the Sin City Disciples in 2011 and 2012, but upon learning it had been classified as a criminal organization, he left the group in accordance with Department of Defense guidelines. He acknowledges that he’s made mistakes; he’s simply hoping a few poor decisions, potentially related to his PTSD, don’t cost him his future.

And that’s where Morrison’s attorneys argue for inequity: A few missteps should not undo 20 years of honorable service. Not long ago, Morrison wouldn’t have had reason to be optimistic about upgrading his status. But two recent changes in federal policy give him—and veterans like him—a reason to hope.

Displays a high standard of duty and commitment Selfless service is beyond reproach Displays a high degree of personal courage —NCO Evaluation Report for Larry Morrison December 17, 2012

Until 2014, less than four percent of PTSD-based discharge upgrade appeals filed with the Army Board for the Correction of Military Records were granted. In other branches, that percentage was even smaller—until then Secretary of Defense Chuck Hagel got involved. In a letter dated September 3, 2014, the Hagel Memo directed DRBs to give “liberal consideration” to petitions in which PTSD might have been a mitigating factor in a service member’s misconduct.

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The “might have been” language is key, because PTSD didn’t even become an official diagnosis in the American Psychological Association’s Diagnostic and Statistical Manual of Mental Disorders until 1980—five years after the Vietnam War ended. “These guys did things in Vietnam or post-Vietnam that got them an OTH,” Shea says. “It wasn’t until later that they recognized that maybe part of those problems were the result of PTSD or TBI.”

Shea’s frustration with the situation is palpable. A fit 68-year-old, he often leans back in his seat during casual conversations, but when he talks about this—and the men he represents, whom it affects—his Marine bearing returns. He sits up straight and leans forward. He talks faster. “Have you ever heard of McNamara’s 100,000?” he asks.

Also known as Project 100,000, McNamara’s 100,000 was a program initiated by then Secretary of Defense Robert McNamara in 1966 that lowered mental, physical, and medical standards to allow more men to be drafted. The name is a misnomer: More than 345,000 men, many of them black, were actually drafted as a result. Shea’s client Jim Nelson* was one of them.

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Legal allies:Former Marine Mike Shea (left) and Tim Franklin teach at DU’s VAP and are supervising attorneys in the clinic. Courtesy of Matt Nager

Although he was healthy and physically able, Nelson’s low intelligence test scores typically would have disqualified him from military service. Instead, he was drafted into the Army’s infantry in February 1968, just after the Tet Offensive began. He spent about 18 months in Vietnam. Deployed to Cu Chi—an area of what was then Saigon crisscrossed with underground tunnels the Viet Cong used to ambush Americans—Nelson’s unit faced nearly daily combat. On September 11, 1968, they were attacked with mortar and rocket-propelled grenade fire, Nelson says. Badly injured, with shrapnel in his arms, he and another soldier carried one of their comrades to a medic. Nelson, bleeding from the ears and unable to hear, was evacuated. He was one of only 12 men in his unit to survive the firefight.

Following his recovery, Nelson was transferred to a cavalry unit and ordered to rejoin the war. He refused. Traumatized by what he had been through, Nelson could not fight anymore. He was given an OTH discharge in 1969. He’d been trying to appeal the decision since the 1970s when he found the VAP in 2015. Working with Shea and student Andrew Ground, Nelson appealed his decision one more time, citing the Hagel Memo’s directive in the legal brief. This time, he won. In 2016, Nelson’s military records were changed to reflect a discharge of general under honorable conditions, and he was finally entitled to the VA health care and benefits he’d been denied for more than 40 years.

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Since the Hagel Memo was issued, close to 45 percent of PTSD-based discharge upgrade requests with the Army Board for the Correction of Military Records have been granted. Morrison hopes he will have similar success in his case with the Army DRB; in the brief they filed, Vessels and Irwin reference the Hagel Memo. They also cite a new, more powerful standard. In December 2016, Congress passed the Fairness For Veterans Act, legislation that essentially codifies the Hagel Memo by requiring review boards to consider that PTSD or TBI could have “materially contributed to the circumstances resulting in the discharge of a lesser characterization.” In other words: Be generous when reviewing the cases of veterans with these conditions.

While the language doesn’t go as far as the original bill—which called for review boards to “presume” PTSD or TBI contributed to the misconduct—it’s a step toward righting years of injustice, according to U.S. Representative Mike Coffman, R-Aurora, who introduced the bill. “In the past, these people never would have gotten less than honorable for the kind of infractions they committed,” Coffman, a veteran himself, says. “What they’ve done is give these veterans a stigma that will last their entire lives.”

Extraordinarily motivated, accomplishes the mission above the standard every time Dynamic illustration of confidence, competence, and commitment to the unit’s mission Epitomizes what every NCO in the Warrior Transition Unit should be: caring, empathetic and professional —NCO Evaluation Report for Larry Morrison December 2, 2013

If he’d been given an honorable—or even general—discharge, Morrison would be collecting $3,200 a month in disability benefits, plus $2,500 in retirement. He’d have access to VA health care. Instead, today the 44-year-old is working construction in the San Antonio heat because he’s had trouble finding any other job. Potential employers want to see his discharge papers, and most balk when they see the OTH status. To them, it’s the same as a dishonorable. He can’t get the drugs he needs to treat his PTSD because he doesn’t qualify to get them for free through the VA. He’s remarried and has a four-month-old baby boy to support. He’s also trying to help his daughter with college. Morrison had signed his GI education benefit over to her, but when he received the OTH discharge, the benefit was revoked. So now she’s relying on loans and grants to get through school.

But the Army sergeant in Morrison won’t give up. “I refuse to live uncomfortably in some terrible neighborhood,” he says. “So we’re working hard to survive.” In the Army, they would call this “embracing the suck.” Ann Vessels calls the situation disgraceful. “Larry had a sterling record in the military,” she says. “To treat someone with five combat tours this way is simply beyond appalling.”

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Both Vessels and Morrison himself don’t deny that he made some poor decisions. He drove drunk. He fraternized with some questionable people. But as Irwin and Vessels argue, he did so while suffering from PTSD brought about by years of combat exposure. He also received a Bronze Star and many other commendations throughout his career. Characterizing his tenure as other than honorable suggests the mistakes he made overshadow the rest of his 20 years of service.

The question Vessels and Irwin pose—to the military and to all of us—is, Does that seem fair? “Unless you have someone like us, the system seems so big and tough to get into—almost impenetrable. A lot of guys just sit back and say, ‘Well, it is what it is,’ ” Irwin says. “I hope we’re able to instill some faith in them that they weren’t just forgotten after they took their bags and left the base.”

*Name has been changed


Editor’s note 9/8/2017: In late-August, the Department of Defense clarified and expanded its policy to help veterans with less-than-honorable discharges upgrade their statuses. A memo from the office of the Under Secretary of Defense directed all Discharge Review Boards and Boards for Correction of Military/Naval Records to give “liberal consideration” to veterans whose appeals are “based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment.” Further, the memo requires that these mental health conditions be liberally considered as excusing or mitigating the discharge (although the memo also notes that the severity of some misconduct outweighs any potential mitigating factors). The policy adjustment signals a positive step for veterans and veteran advocates who have been asking for a more compassionate review policy—especially for veterans contending with brain injuries—for years. (PTSD wasn’t even an official diagnosis when the Vietnam War ended, yet it could have contributed to some of the behaviors that got former military personnel kicked out with less than honorable discharges.) “Invisible wounds, however, are some of the most difficult cases they [boards] review and there are frequently limited records for the boards to consider, often through no fault of the veteran, in resolving appeals for relief,” wrote acting Under Secretary of Defense for Personnel and Readiness Anthony M. Kurta in a letter introducing the new policy. “Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later.”

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