A Scarlet Letter
Thomas Burke has lost his faith. Not in God—Burke is now a pastor in the Norfield Congregational Church in Weston, Connecticut—but in his country, and the institution through which he served it: the U.S. Marine Corps. Their motto reads: “Semper Fidelis,” or “Always Faithful.” But when the Marines failed him, releasing him with a bad case of Post-Traumatic Stress Disorder (PTSD) and a bad paper discharge, his faith in the Marines failed in return.
Burke, who looks like the doppelganger of Ted Lasso from the eponymous TV show, enlisted in the First Battalion Third Marines out of Kaneohe Bay, Hawaii right after graduating from high school in 2007. He served for three years, first in Iraq and then in Afghanistan, where he learned the local language of Pashto and developed close relationships with the boys who lived near the base. The boys would help Burke and his platoon, letting them know where bombs were hidden and bringing them any they located. One day, a group of kids was walking over to visit Burke at basecamp to hand over a rocket-propelled grenade they had found, when he heard a blast. The grenade had exploded. Burke watched eight of the kids he had befriended die.
“They died right in front of me,” Burke says. “I started smoking a lot of hash to kind of deal with that. And the military, the Marine Corps, didn’t really like that too much.” Right before his seven-month deployment in Afghanistan ended, and he was due to return to his station in Hawaii, Burke was drug tested. It came back positive for marijuana. The military, in theory, has a zero-tolerance policy on drugs. Enforcement, though, is at the discretion of a platoon’s commander. “There’s this view of zero tolerance for drugs in the military,” Daniel Conway, a military defense lawyer says. “But the application trickles down from leadership.” Burke’s unit commander responded by giving Burke an Other-than-Honorable discharge, or what is known in the military as bad paper.
“There are three administrative separations a servicemember can receive,” a Department of Defense Instruction source tells me. They are: Honorable, the most common and highest designation; General-under-Honorable-Conditions for minor misconduct; and Other-than-Honorable, which is given in lieu of a court martial, and amounts, essentially, to expelling a soldier from duty. “Those are discharges that would definitely put a bit of a scarlet letter on you. You don’t get them if you didn’t, in the eyes of the military at least, misbehave in some way. Or [do] something that the military condemns,” Brad Carson, the former United States Under Secretary of the Army under Barack Obama tells me. These behaviors are still often relatively minor offenses, such as failing a drug test or exhibiting a pattern of misconduct, like being late to work three times. “They’re definitely stigmatizing,” Carson continues. And the implications are damning.
Burke’s Other-than-Honorable discharge meant he was deprived of receiving any benefits he could have been awarded for his service. This includes healthcare from the Veterans Association (VA) and post-secondary education from the G.I. Bill. Other-than-Honorably discharged veterans are often the ones who need mental health treatment the most. In a Boston Medical Center Psychiatry study of U.S. Marines deployed to Iraq and Afghanistan, researchers found that those with a PTSD diagnosis were eleven times more likely to have a misconduct discharge than those without. Decisions, for those who rank below officer, about whether misconduct is worthy of a less-than-Honorable discharge or not, and who gets blacklisted from VA benefits as a result, are made by the ranks of commanders, with no tribunal or oversight by higher-ups, documents of published military guidelines as well as conversations with sources reveal.
“There was no judge. There was no jury. It was just some guy who’s a middle-aged dude who just didn’t like me, and made a decision to fuck me over for the rest of my life,” Burke says.
Despite his PTSD and his lack of access to resources to treat it, Burke has built a new life for himself in the twelve years since his discharge. He graduated from Yale Divinity School. He became a pastor. But his discharge status still scars him. “An Other-than-Honorable discharge makes it seem like I’m this other-than-honorable person, especially in a culture that really celebrates heroic service in the military so much. This not just erases my service, but it is a negative and a pejorative on who I am,” Burke explains. While he acknowledges it’s possible to seek counseling for PTSD, he adds, “You can’t work through an Other-than-Honorable discharge in therapy. Because no matter how far I get, no matter what healing I do, I always have this stupid piece of paper, this administrative bullshit, that keeps me from healing.”
Healing emotionally from the discharge may never be possible, but there is one way to bureaucratically erase the Other-than-Honorable discharge designation: applying to a discharge review board. Veterans of the Navy and Marines who believe they have been unfairly discharged can submit an application to the Naval Discharge Review Board (NDRB) and ask them to reconsider their discharge status. The Army and Airforce have their own boards. Last September, Burke put together a 70-page file to present to the NDRB. In October, Burke received his decision, in the form of a one-page response. “They just said, ‘Nope,’” Burke says. He wonders if they even read his file. “I’m a pastor of a church, and I went to Yale. And I’m not getting an upgrade, because I watched little kids get blown up and smoked pot,” he says. “So, if I’m in this situation, I got to think that other applicants are much worse off than me.”
Over 500,000 veterans are living with Other-than-Honorable discharges. The NDRB rejects 85 percent of discharge status upgrade requests, according to documents the Navy released in the 2016 settlement of a Freedom of Information Act lawsuit filed by two military justice organizations against the Department of Defense. The military discharge review boards, according to guidelines instituted by then-Defense Secretary Chuck Hagel in 2014, now referred to as the Hagel memo, are asked to give “liberal consideration” to cases where service-related mental health issues, like PTSD, could have contributed to the veteran’s behavior and led to the disciplinary discharge. But stories like Burke’s suggest that this isn’t playing out in reality.
Yale Law Jumps In
On March 2, 2018, the Yale Law School (YLS) Veteran Legal Services Clinic filed a suit against the U.S. Navy, alleging its discharge review board process does not follow the Pentagon’s standards of giving “liberal consideration” to PTSD-related cases. On October 12, 2021, the court approved the Navy and YLS’s joint settlement agreement—referred to as the Manker settlement, named after lead plaintiff Tyson Manker. A final fairness hearing for the case was held on December 16th. Now, a judge is reviewing the terms of the class action agreement and determining whether the settlement will be finalized by the court.
In December 2021, Burke was hoping to join the settlement class of the Manker case. The settlement’s terms stipulate that the NDRB would have to reevaluate the rejections of class members, with careful consideration given to mental health when relevant. Even though joining the settlement class still wouldn’t guarantee an upgrade for Burke, it would bring him closer than he ever has been to receiving one.
A source for the Navy’s defense asserts that commanders put careful consideration into their discharge delineation. “The commander isn’t making the decision in a vacuum. There are lots of touch points that the commander uses,” the source says. But, the source explained in a conversation, discharge decisions are at times being made under the extenuating circumstances of war, which may have an influence on the decision. “An officer separating out an enlisted person might be making that decision with limited information, under stress, while managing a battle,” the source says. Commanders always have to be focused on mission readiness—making sure their unit is ready for battle—and have to take action when someone isn’t serving the unit. From that perspective, there is little room for misbehavior.
“Right here in New Haven, we have impacted the whole nation”
“Yale’s veterans clinic has been a tremendous leader in military law,” says Eugene Fidell, a nationally recognized military law expert, a Senior Research Scholar at YLS, and an Adjunct Professor of Law at NYU Law School. The Hagel memo itself, which brought mental health considerations into discharge review cases, came out of a case filed by YLS. A settlement with the Army Discharge Review Board, which rejects 45 percent of discharge upgrade applications, with terms similar to those in the Manker settlement, was finalized in April 2021. “So really, right here in New Haven, we have impacted the whole nation with this legislation that has passed,” Conley Monk, the lead plaintiff on the Hagel case, reflects.
Yale Law School’s first-rank reputation in military law may come as a surprise, considering the current and historical political climate at the school. “There was a conscious manifestation of antiwar sentiment that came from the student body and faculty after Vietnam.” Fidell explains. “Some of that still exists today, but is starting to change.”
Jane Jacoby, the President of the YLS Democrats says that a large portion of the student body identify as on the left politically. “A vast majority of students at the Law School would likely describe themselves as Democrats. There are certainly a large portion of students that would describe themselves as far-left,” she says. Just a quick scroll through YLS’s clinical service program offerings sheds insight as to why YLS may attract left-leaning students. Yale is home to thirty law clinics—groups of students and faculty providing pro-bono legal services. Every student is required to spend one semester doing experiential learning, either working in a clinic that tackles real world cases or taking a simulation course. Most are oriented toward progressive causes, such as reproductive rights, LGBTQ rights, and capital punishment. Students in most clinics, like the Veterans Clinic, work under their faculty members’ bar licenses in order to lead and take charge of cases.
Meghan Brooks, a Robert M. Cover Fellow at the Yale Veterans Clinic, describes the clinical learning process as, she says, “the same sort of idea as rotations at medical school.” But, Zoe Masters LAW ’22, a student in the Fair Housing clinic, draws a key distinction. “If you’re in medical school and you’re doing rotations and specializing in different things, obviously that’s not political in any way. But in law school, the things that people choose to work on are informed by their view of justice,” she says.
This is why Amelia Dunnell LAW ’23, a student lawyer representing Tyson Manker in the settlement, struggled with her decision to work with the YLS Veterans Clinic. In her work, she feels a tension between her dedication to her clients and her personal skepticism of the military itself. “I have my own opinions and value judgments on the value of the military as a concept,” Dunnell says. “A lot of our clients are really proud of their military service, believe in the value of the military, and believe that it’s an important institution and might not have the same criticisms against it that I would.”
Dunnell isn’t the only one who has felt this way. Jane Jacoby, president of the YLS Democrats, knows many students working at the Veterans Clinic who would identify as Democrats. “That’s not to say that there are not right-leaning members of the Vets Clinic. But I do think that veteran issues are ones that are important to both sides of the aisle. It doesn’t map onto partisan politics in the way that maybe some other clinical offerings might,” she says.
J.L. Pottenger, a Nathan Baker Clinical Professor of Law and Supervising Attorney at YLS, believes the clinic is tackling military issues for the sake of justice, not for the sake of the institution itself. “I don’t think that the Veterans Clinic is a right-wing clinic. I don’t think that people who go to it are more conservative,” he says. “And I don’t think the Veterans Clinic is about the values of the military or upholding them. It’s about trying to make sure that the veterans get fair treatment and the rights and the benefits that they were promised.”
That’s the philosophy that has guided Amelia Dunnell’s work with the clinic. “It’s interesting to work with clients whom you might have some, what you might perceive as, fundamental disagreements,” she says, “but whom you’re also really dedicated to obtaining justice for, that you believe they’re entitled to.”
Rushed and Random Decisions, Life-Altering Ramifications
Thomas Burke sees the cases coming out of the Yale veterans clinic as a beacon of justice in a military system that he thinks operates with a profound lack of it. He hopes the benefits of Yale’s legal victories will trickle down to his case as well.
After two rejections, Steve Kennedy, the lead plaintiff for Yale Veterans Clinic settlement with the Army Discharge Review Board, was able to get his General Discharge upgraded as part of the settlement case. Kennedy spent fourteen months in Iraq serving in the 82nd Airborne Division of the U.S. Army. He returned with severe PTSD. His deteriorating mental health came to a head when he was denied permission to leave his station for ten days to attend his own wedding. Kennedy went AWOL (absent without approval). He was ultimately discharged under General conditions (which are considered less-than-Honorable).
“It was really traumatic. For me, being in the Army was such a huge part of your identity. And to have the Army then turn around and say your services are less than Honorable, it’s like you are less than Honorable,” Kennedy says. “I was already really depressed to begin with. And then I was kicked out, and after that, I was a mess.” But what gave Kennedy hope was a rumor that he had heard while enlisted, that discharges were easy to upgrade. “I heard it’s not a big deal. After six months, you just apply, they upgrade you, and it’s fine. But it’s not true. It’s not true at all.” Kennedy applied twice. He was denied both times, even though his application described mental health diagnoses linking his PTSD to his active-duty behavior. The second time, he was denied on a three-to-two vote.
Josh Britt LAW ’22 worked on Kennedy’s case at the Yale Veterans Clinic. Before Yale, he served four years in the Marines Corps. While enlisted, he also had heard that less-than-Honorable discharges were a painless upgrade. Only when Britt started doing military justice work did he realize how far that was from the truth. “The perception was that it was very easy to get a discharge upgrade,” he recalls of his time in the Marines. “So, the commander was very quick to award less-than-Honorable discharges. He had no sense of their huge life-altering ramifications.” Kennedy, in the years since his service, has talked to commanders who are in the position to delineate discharges. “I’ve heard that commanders just don’t appreciate what it actually means. You’re not thinking about what this person’s future looks like. It’s just you have to get your unit ready to go and this person isn’t working, so you send them out.” Kennedy says. “You’re not thinking, well I better make sure this person gets VA benefits.”
While there are regulations for determining what sort of behavior merits a less-than-Honorable discharge, the power lies in a commander to enforce it. Guidelines provide little standardization, and as a result, personal biases often influence the decisions. A report from Protect Our Defenders, a human rights organization focused on protecting vulnerable service members, revealed that Black service members were more likely to face military disciplinary action. “The persistence of racial disparities within the military may indicate the existence of racial bias or discrimination among decision-makers in the military justice system,” the report concluded. Garry Monk, the brother of Conley Monk, who was the lead plaintiff in the YLS case about the Hagel Memo, and who does veteran advocacy work in New Haven, says, “It’s like Jim Crow in the military, for lack of a better word.”
‘There Are Right Ways to Behave . . .…and Few Excuses Allowed’
Brad Carson, a former Under Secretary of the Army, has a different view of the process. “The military is characterized by a strong adherence to standards and norms,” he explains. “There are right ways to behave. And there are few excuses allowed. That’s the kind of the culture of the place. It’s also a very rule driven place.” Discharge decisions are made with urgency when the stakes are life and death. That’s why the discharge review boards were first formed, after World War Two—to reconsider decisions made under the pressure and haze of wartime in the light of civilian life.
The discharge review boards do not function like an appellate court in the American judicial system. There is no jury of randomly selected civilians hearing the cases. The board is a set of military officers, some active and some retired, all of whom have a strong sense of military values, which colors how they view cases. “The people who are deciding your case are the ones who have made a living in this system and are comfortable in it,” Kennedy remembers thinking when he was before the board himself. Though the board is given guidance from the Department of Defense and Congress, and has administrative protocol, Carson says that there are no standard publications of guidelines that tell the board how to review each case. As a result, personal biases prevail, along with a strong deference towards the unit commander’s original decision. “They have a real sense of standards and that there are behaviors that should get you separated from the military with a less-than-Honorable discharge. And they believe standards are important to maintain,” Carson says. The stigma against PTSD that is felt on the ground in the military is felt on the board as well. “It’s still a highly testosterone culture,” Carson says. “Is there still some stigma to saying I’m weak or I’m suffering? Yes.”
It’s no wonder then that records referenced in the Manker settlement’s original complaint assert that the Army Discharge Review Board rejects a substantial 45 percent of cases, and the Naval Discharge Review Board rejects 85 percent of discharge upgrade applications. Yet, while those percentages seem high, a source for the defense in the Manker case says it’s important to remember the staggering number of applications being submitted to the boards for review. Over 60,000 veterans became eligible to reapply to the boards when the Kennedy settlement was finalized, so even if the board only accepts 15 percent of the applicants, that’s still nine thousand people who are getting discharge upgrades. “It’s a false premise that the board doesn’t grant a lot of these,” the defense source says. “The people on the discharge review boards want to do the right thing for the veteran.”
Sixty thousand applications are a lot for the five members of the Army Discharge Review Board to slog through. The five officers currently sitting on the Naval Discharge Review Board may likely be hit with similar numbers once the Manker case is finalized. A case like Burke’s, if accepted into the settlement class, might not be re-evaluated for another three years, Burke predicts. The review boards are overworked and understaffed, Carson explains, so an inundation of cases means that each one will likely only get a few minutes of review, likely leading to mistakes and oversights. “It’s so difficult to do right, to do justice, when you’re giving such brief attention to the case,” Carson notes.
‘Should They Suffer That Penalty For Their Remaining Lives?’
This quick decision by the discharge board can have life-altering repercussions. A less-than-Honorable discharge strips servicemembers of VA benefits and job prospects—some hiring managers require servicemembers to release their discharge status. Experts and studies say a less-than-Honorable discharge status is one of the strongest factors causing veteran homelessness. Carson thinks that re-resourcing the review boards may help break the cycle of rejection that traps so many less-than-Honorably discharged veterans. But a former official for the Navy speculates that the solution lies in a broader probing of the punitive discharge process as a whole. If the misbehavior of less-than-Honorably discharged veterans is a symptom of risking their lives for their country, should the rest of their lives be ruined as a result?
Burke held out faith that the Yale settlement would help him upgrade his discharge status, but his original rejection from the NDRB was too recent for him to join the Manker settlement class. His faith now lies beyond the military and its flawed justice system. He’s a pastor of the Norfield Congregational Church and does advocacy work resettling Afghan refugees in Connecticut. Even if his own chances for honor in the eyes of the military are now slim, he still hopes others will be granted a chance for honor through the Manker settlement. All the settlement needs to succeed is the judge’s stamp of final approval. Burke’s praying for it.
Elena DeBre is a junior in Pierson College and a former Executive Editor of The New Journal.