Kicked Out, Kicked Again: The Discharge Review Boards’ Illiberal Application of Liberal Consideration for Veterans with Post-Traumatic Stress Disorder

In recent years, the Department of Defense (DoD) has responded to the growing awareness of mental health issues for military servicemembers during and after service. This Article focuses on veterans who have already been discharged from service, and specifically those who have been discharged under other-than-honorable conditions for misconduct that is likely the result of a mental health condition, including post-traumatic stress disorder (PTSD), traumatic brain injury, sexual assault, or sexual harassment. Thousands of former servicemembers have been kicked out of the military for misconduct rather than treated for mental health conditions they experienced due to their military service. When these veterans later seek an upgrade from a discharge review board based on their mental health conditions, they are typically kicked again when the discharge review board denies relief. In 2014, DoD created a new policy to give “liberal consideration” to veterans seeking to upgrade their other-than-honorable discharges due to mental health conditions. The policy, known as the Hagel Memo, was later clarified and supplemented in August 2017 by the Kurta Memo. This Article analyzes how the Naval Discharge Review Board as a representative of the discharge review boards has implemented the guidance based on decisions released after the August 2017 Kurta Memo’s clarifying guidance. This Article contributes to the discussion on military and veterans’ mental health issues through the lens of how the discharge upgrade process fails to respond to the growing understanding and awareness of PTSD and other mental health conditions. This Article explains how the discharge review boards have failed to implement the liberal consideration policy guidance and offers a path forward, from a big picture redefinition of “Honorable” to specific revisions to Navy procedures that serve as examples for all the services to consider. The discharge review boards have the opportunity to acknowledge that the military abandoned these veterans at the discharge stage when they received an other-than-honorable discharge and—more importantly—to provide relief by giving them a hand up rather than kicking them again