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Military must do right by wrongly-discharged sexual assault victims, advocates say

May 19, 2016 (Photo Credit: Human Rights Watch)

Editor's note: This article was originally published at 5:53 p.m. EDT May 19, 2016.

Thousands of former service members who were diagnosed with personality disorders due to their sexual assaults and kicked out of the military still have little effective recourse to clearing their record, the advocacy group Human Rights Watch said Thursday.

In a new report, "Booted: Lack of Recourse for Wrongfully Discharged U.S. Military Rape Survivors," Human Rights Watch said that although the Defense Department has dramatically reduced its use of discharges for personality disorders after 2009, there were still 31,000 veterans discharged on those grounds between fiscal 2001 and 2010. Sarah Darehshori, a senior counsel at Human Rights Watch, said the group did not know how many of those 31,000 had suffered sexual assaults, but said "it is suspicious that a disproportionate number" -- roughly 30 percent -- "of the discharges were women."

And those previously-discharged service members still don't have many good options for clearing their name.

"For many sexual assault survivors, their suffering doesn't end when the attack is over," Darehshori said at a news conference on Capitol Hill. "The impact of these [unfavorable discharges] is impossible to overstate, and it makes it so hard for people to get the care that they need and to move on."

More than 90 percent of service members who ask their branch's Discharge Review Board or Board for Correction of Military Records to review their discharge are rejected "with almost no opportunity to be heard or meaningful review," the report said. For example, between 2009 and 2012, the report said the Board for Correction of Navy Records upgraded 1 percent of the 4,189 other than honorable discharges that came before it.

In an emailed statement, the Office of the Secretary of Defense said Human Rights Watch's report is based on old information "and does not reflect current practices or policies."

Pentagon spokesman Air Force Maj. Ben Sakrisson said a February memo from former Pentagon personnel chief Brad Carson ordered that boards re-review old discharge cases with the current, more liberal standards, if the former service member requests so. The current standards for military sexual trauma cases now have "substantially higher" rates of relief -- about 38 percent -- than those of other categories, he said.

"Relief in military sexual trauma cases is typically processed under the liberal consideration guidance issued by [former Defense Sec. Chuck] Hagel in September 2014 for mental health and PTSD cases and receive a mandatory psychologist/psychiatrist review," Sakrisson said. "Each case is evaluated on its own merits and evidence and all petitions have substantial due process."

Retired Air Force Col. Don Christensen, the service's former chief prosecutor and now-president of the victims advocacy group Protect our Defenders, said the report is "shocking" and shines a light on how victims have been treated by the military for decades.

"These consequences [of unfavorable discharges] are long-term life consequences," Christensen said. "It denies them the very rights and benefits that they expected to receive when they joined the military. It is time for the Department of Defense to say enough is enough and make sure justice is done."

The consequences of a less-than-honorable, or "bad paper," discharge can be serious, the report said. About 85 percent of discharges are characterized as honorable, Human Rights Watch said, meaning anything else stands out to potential employers. Service members discharged with bad paper are at higher risk of suicide, homelessness and imprisonment, and can find themselves unable to get typical veterans' benefits such as employment preferences, vocational training, housing assistance, pensions, health care, and others. 

Having a personality disorder -- a term describing a mental health condition disqualifying someone from military service -- listed on one's DD-214 discharge form can stigmatize a veteran as being mentally ill.

And a less-than-honorable discharge can even follow a veteran into death, making him or her ineligible to receive a military funeral or be laid to rest in a military cemetery.

In a video accompanying Human Rights Watch's report, former Navy Seaman Heath Phillips discussed his ordeal with sexual assault and the consequences when he came forward. Phillips joined the Navy in 1988, and said he was repeatedly sexually assaulted by male shipmates after reporting to his first ship assignment. He said he went absent without leave to avoid having to ship out with them, and turned himself in immediately after his ship was under way to the Mediterranean Sea. 

"I couldn't take it no more," Phillips said. "I was not going to go out to sea with these men and deal with this every single day."

Phillips, who was diagnosed with post-traumatic stress disorder, took an other-than-honorable discharge rather than face a court martial and a six-month stint in the brig for going AWOL. Human Rights Watch said Phillips has now been fighting for more than 20 years to get his discharge overturned, and receive health care and other benefits.

"After being subjected to countless sexual assaults, beatings, threats, humiliation, in constant fear, a total basket case, I would have signed a deal with the devil himself to escape the torture I kept getting while on board the ship," Phillips is quoted as saying in the report. 

To fix this problem, Human Rights Watch recommended the secretary of Defense order the boards to create a "presumption in favor" of changing the discharge reason from personality disorder to "completion of service," in the case of sexual assault victims who have experienced trauma and have not otherwise been diagnosed with a personality disorder by an independent physician.

The Defense secretary also should tell the boards to give special consideration to sexual assault victims who have experienced PTSD, the group said. The Pentagon needs to set up a working group, including military lawyers and veterans advocacy groups, to figure out better ways to grant relief for service members who have been improperly discharged, it said.

Human Rights Watch also called on Congress to give discharged service members who have suffered a sexual assault the right to a hearing at their service's records correction boards, if they have not had a hearing before a Discharge Review Board. And the records correction boards should be required to summarize and index all their decisions by subject, so service members can more easily search for cases supporting their arguments, the group said.

Rep. Chellie Pingree, D-Maine, said at the conference that she and Sen. Richard Blumenthal, D-Conn., are about to send a letter to the Pentagon urging officials to expedite review of cases of wrongfully-discharged service members.

"They can do that without Congress passing a law to force them to do it," Pingree said. "But if it takes legislation, then we have it ready to go. Men and women who volunteer serve and make enough of a sacrifice. When they suffer from PTSD from combat or sexual assault, they should not be forced to live with a discharge and diagnosis they did not deserve."

 

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