Military Discharge Upgrade Legal Practice Manual

by Margaret Kuzma, Elizabeth R. Gwin Gwin, Dana Montalto, Daniel L. Nagin

Overview

The need for a comprehensive guide to discharge upgrade practice could not be more critical. A 2020 report found that hundreds of thousands of veterans have been, or are at risk of being, unjustly denied benefits because they have received less-than-honorable discharges. Many of these veterans have experienced trauma (including combat trauma and Military Sexual Trauma), mental health conditions or medical conditions (such as Post-Traumatic Stress and Traumatic Brain Injury), or discrimination (based on race, sex, or LGBTQ status) while in the military.

The Manual covers fact investigation, legal research, and case strategy in advocating for discharge upgrades before military review boards. Each representation stage receives detailed attention, from initial intake to administrative proceedings to federal court review.

Product Details

ISBN-13:	9781641058919
Publisher:	American Bar Association
Publication date:	11/11/2021
Pages:	758
Product dimensions:	7.00(w) x 10.00(h) x (d)

About the Author

Margaret Kuzma is an attorney in the Veterans Legal Clinic at the Legal Services Center of Harvard Law School, where her work focuses on complex discharge upgrade petitions. Previously, she directed the Veterans Inclusion Project and the Discharge Upgrade Practice at the Connecticut Veterans Legal Center. She has been a Visiting Clinical Lecturer with the Veterans Legal Services Clinic at Yale Law School, and she cofounded the Veterans Law Project at Quinnipiac UniversitySchool of Law. Prior to becoming a public interest attorney, Ms. Kuzma ran the Sexual Assault Prevention and Response Program for Fort Benning and U.S. Army Garrison Baumholder.

Betsy Gwin is Associate Director of the Veterans Legal Clinic at the Legal Services Center of Harvard Law School, where she is a Clinical Instructor and Lecturer-on- Law. Her work focuses on representing disabled veterans in appeals to the U.S. Court of Appeals for Veterans Claims, appeals for state veterans’ benefits, and discharge upgrade petitions. Ms. Gwin previously worked in legal services and was a public defender, representing parents and children in child welfare proceedings in the Child and Family Law Division of the Massachusetts Committee for Public Counsel Services.

Dana Montalto is a Clinical Instructor and Lecturer-on-Law in the Veterans Legal Clinic at the Legal Services Center of Harvard Law School, where her work and teaching focus on representing veterans with less-than-honorable discharges. Ms. Montalto also founded and directs the Veterans Justice Pro Bono Partnership, which connects veterans who wrongfully received less-than-honorable discharges with pro bono attorneys. She has written about the legal history of the Department of Veterans Affairs eligibility rules for veterans with less-than-honorable discharges and the challenges veterans with less-than-honorable discharges face in accessing basic supportive services at VA.

Daniel Nagin is a Clinical Professor and Faculty Director of the Veterans Legal Clinic and the Legal Services Center of Harvard Law School. He has published journal articles about the law and policy of veterans benefits and has been a frequent presenter at conferences about legal services for veterans. An elected Fellow of the American Bar Foundation, his current activities include serving on the Judicial Advisory Committee of the U.S. Court of Appeals for Veterans Claims, the Legal Services Corporation Veterans Task Force, and the Executive Committee of the Section on Poverty Law of the American Association of Law Schools.

Table of Contents

About the Authors xvii About the Contributors xix Acknowledgments xxi Preface xxiii Introduction xlv Glossary of Common Discharge Upgrade Acronyms and Terms liii   PART I. INTRODUCTION TO MILITARY AND DISCHARGE UPGRADE LEGAL STRUCTURES 1 Chapter 1. Introduction to Military Structures and Military Law 3 Chapter 2. Law of Discharge Upgrades 45   PART II. BUILDING A CASE 129 Chapter 3. Intake and Record Development 131   Chapter 4. Supporting Statements and Working with Experts 171 Chapter 5. Writing a Persuasive Brief 189 Chapter 6. Identifying Contentions 213 Chapter 7. Final Steps 287 PART III. SPECIFIC CASE TYPES 335 Chapter 8. Mental Health and Less-Than-Honorable Discharges 337 Chapter 9. Military Sexual Trauma and Less-Than-Honorable Discharges 405 Chapter 10. Condition Not a Disability Based Discharges:  The Misuse of Personality and Adjustment Disorders 435 Chapter 11. Discrimination-Based Discharges 463 Chapter 12. LGBTQ Veterans 495 Chapter 13. Medical Separations and Retirements 543 Chapter 14. Alcohol and Drug Use Separations 567 Chapter 15. Entry-Level Separations, Uncharacterized Discharges, and Defective Enlistments 599 Chapter 16. National Guard and Reserve 623 Chapter 17. Discharge Status and Immigration Concerns 639 Chapter 18. Special Vietnam-Era Review Programs 647   PART IV. THE ALTERNATE PATH OF A VA CHARACTER OF DISCHARGE DETERMINATION 657 Chapter 19. VA Character of Discharge Determinations 659